1.Before the court is application by Notice of Motion dated 15/12/2022 by the appellant judgment debtor in a civil suit before the trial court in a personal injury claim pending appeal therefrom and seeking specific relief as follows:
2.The application was opposed by the Respondent who set up, by her Replying Affidavit and Counsel’s submissions, a case of abuse of the court process urging that the Applicant had, following adverse orders on an application for stay of execution pending appeal before the trial court, withdrawn that application and filed the present application before this court, as related in paragraphs 3-7 of the Replying Affidavit sworn by the Respondent on 4/9/2023 as follows:
3.For the Applicant, it was conceded that there was an earlier application dated 4/8/2023 before the trial court but which was withdrawn on 5/8/2023 with the knowledge of the counsel for the respondent and the award of costs to the respondent. In a supplementary affidavit of the Applicant’s Director sworn on 22/9/2023, it was further contended that the Respondent had not responded to the merit of application before this court, which Counsel then urged that it be considered unopposed.
4.So if it was withdrawn before the trial court, why is it refiled before this appellate court? Why did not the applicant seek leave to reinstate the application before the trial court, if good grounds existed therefor?
5.Although Oder 42 Rule 6 (1) of the Civil Procedure Rules gives the court to which an appeal is preferred the jurisdiction to consider an application for stay of execution whether such application shall have been granted or denied by the trial court, it is clearly an abuse of the court process to seek to avoid complying with orders already made upon an application for stay before the trial court by withdrawing such application, in a deceptive and sharp practice act of forum shopping, only to repeat the same application before the appellate court.
6.In the present case, it appears to this court that the refiling of the application for stay of execution before this court is merely to sidestep the adverse orders of stay before the trial court hoping for more favourable orders from this court. It is clearly a deplorable case of forum shopping which must be frowned upon and discouraged not only by the dismissal of the application but an order that the Counsel who moves the Court on behalf of such an applicant be punished by an order for payment of costs personally for his sharp practice.
7.The overriding objective of the civil process under section 1A and 1B of the Civil Procedure Act which overrides the Civil Procedure Rules kicks in and, in terms of Hunker Trading Company Limited v. Elf Oil Kenya Limited  eKLR, dictates that the second application does not properly invoke the original jurisdiction of the appellate court –
8.This is an occasion for this Court’s restatement of its decision in Collin Bett v. Silas Kabisa  eKLR where, relying on among other decisions the Court of Appeal holding in Hunker case, said as follows:
9.The Court does not have to consider the terms of stay and the authorities relied on by the applicant for deposit of an asset in lieu of monetary deposit as security having held that the present application is an abuse of the process of the Court and it is dismissed on that ground, without delving into its merits.
10.Accordingly, for the reasons set out above, the court makes the following orders:1.The appellant’s application for stay of execution dated is declined for being an abuse of the process of the court.2.The order of interim stay of execution granted pending hearing and determination of this application is discharged.3.The Respondent shall have the costs of the application to be paid by the advocates for the applicant, M/S Swaka Advocates, personally.Order accordingly.