1.By an Amended Notice of Motion dated 25th April, 2023, the Appellant herein substantially seeks stay of execution of the ruling and proceedings in Malindi MCCC No. E248 of 2022 Phellister N Charo v Madison Insurance Company Limited; Malindi CMCC No. 246 of 2022 Ariet Vutage Mukuzi v Madison Insurance Company Limited; CMCC No. 249 of 2022 Euny Viola Seda v Madison Insurance Company Limited; CMCC No. 250 of 2022 Hugh Kombe Junior v Madison Insurance Limited; CMCC No. 252 of 2022 Sheila O. Saja v Madison Insurance Company Limited; and CMCC No. 253 of 2022 Molly Saja v Madison Insurance Co. Limited, pending the hearing and determination of this appeal.
2.The said application is supported by the affidavit sworn by Moses Barasa, the Appellant’s legal officer. According to Moses, on 5th April 2023, a ruling was delivered by Hon J Ong’ondo (SPM) in which he allowed the Respondent’s application dated 9th November 2022 and struck out the Appellant’s statement of defence dated 19th October 2022. The said ruling applied to the other cases aforementioned. Dissatisfied with that ruling, the Appellant preferred the present appeal. The Appellant is apprehensive that the Respondent has commenced the execution process and if stay is not granted their appeal will be rendered nugatory. The appellant avers that they have an arguable appeal and that the Appellant is likely to suffer loss and damage that cannot be compensated by way of damages.
3.In opposing the application, the Respondent relied on a Replying Affidavit sworn by Mr. Geoffrey Kilonzo, counsel for the Respondent, on 9th May 2023. Mr. Kilonzo deposed that following judgment delivered on 27th June 2022, the Respondent filed a declaratory suit CMCC E248 of 2022 where the Respondent successfully sought to have the Appellant’s defence struck out.
4.He added that the Appellant’s allegation that he sought to repudiate liability in a different suit CMCC 132 of 2022, in which the Respondent is a stranger to, though at the appeal stage cannot be used by the Appellant now to hold the Respondent at ransom. According to Mr. Kilonzo, the present application is vexatious and an abuse of the court process, intended to delay the Respondent from enjoying fruits of judgment.
5.I have considered the application, the supporting affidavit, the replying affidavit and the submissions filed as well as the authorities relied upon.
6.Order 42 rule 6(1) and (2) of the Civil Procedure Rules provides as follows:
7.In Vishram Ravji Halai vs. Thornton & Turpin Civil Application No. Nai. 15 of 1990  KLR 365, the Court of Appeal held that whereas the Court of Appeal’s power to grant a stay pending appeal is unfettered, the High Court’s jurisdiction to do so under Order 42 rule 6 of the Civil Procedure Rules is fettered by three conditions namely; - establishment of a sufficient cause, satisfaction of substantial loss and the furnishing of security. The application must be made without unreasonable delay. In addition, stay may be granted for sufficient cause and that the Court in deciding whether or not to grant stay must be guided by the overriding objectives enshrined under section 1A and 1B of the Civil Procedure Act.
8.In the present case, the impugned ruling was delivered on 5th April 2023 and the present application first filed on 20th April 2023 before being amended six days later. This in my view is not unreasonable delay. However, I have carefully perused the notice of motion and supporting affidavit thereof and I do not find how the Appellant has demonstrated likelihood to suffer substantial loss. Such attempt was only made in their submissions. Counsel argued that the decretal amount of Kshs. 2,860,937/- is a substantial amount which if executed will render the appeal nugatory.
9.On this principle, Platt, Ag.JA (as he then was) in Kenya Shell Limited vs. Kibiru  KLR 410, at page 416 expressed himself as follows:
10.On the part of Gachuhi, Ag.JA (as he then was) at 417 held:
11.In the foregoing, I am not convinced that the grounds advanced by the Appellant sufficiently demonstrate likelihood to suffer substantial loss. Further, it is unfortunate that the Applicant/Appellant clearly stated in their submissions that they should not be required to issue security for costs. I find no sound basis on which this requirement should be waived. Order 42 rule 6 (2) above, is vivid on the requirements to be met before this court can exercise it’s discretion.
12.Having failed to meet the threshold, I find no basis to grant the orders sought. The outcome is that the application dated 25th April 2023 is hereby dismissed with costs to the respondent.