1.The application before me seeks an order for stay of execution of the judgement delivered on 16th January 2020 in the lower court pending hearing and determination of the appeal in Kerugoya High Court Civil Appeal No.8 of 2020.
2.The application is premised on the following grounds and assertions contained in the applicant’s grounds and supporting affidavit:a.That the defendantsapplicants filed an appeal immediately after the judgement was delivered.b.That if the orders issued on 16th January, 2020 are executed, the whole appeal would be rendered nugatory. The case is pending for formal proof hearing since the DefendantsApplicants did not file their defence after filing their appearance.c.That after the judgement, they filed an appeal against the judgement at Kerugoya High Court vide this civil appeal No.8 of 2020, which is pending hearing.d.That they filed a Certificate of urgency in the Chief Magistrate Court dated 12th November, 2020 in Civil suit no.113 of 2016 which was decided against them; and that it was filed in time but in a court with no jurisdiction to determine the appeal matter and in which the ruling was entered ex-parte on 30/03/2022.e.That they are now seeking stay of execution of the orders of 16th January 2020 pending the hearing and determination of the appeal.
3.The respondent filed a replying affidavit asserting, inter alia:i.That Judgement was delivered on 16 January, 2020 by.E.O Wambo in Kerugoya CMCC NO.113 of 2016 and the respondent had not proceeded with the execution of the Judgement.ii.That the Appellants/Applicants have not demonstrated that they would suffer irreparable loss should the Judgement entered on 16th January, 2020 not be set aside.
4.Parties filed written submissions as directed by the court
Appellants/ applicants Submissions
5.The respondent claims that the grounds of application are false and calculated to win sympathy and further they ask for proof whilst the applicant attached the proof showing a copy of the appeal dated 20th January 2020.
6.The respondent’s replying affidavit dated 9th March, 2023 claims that he had not proceeded with execution of the judgment and requests the appellant to provide proof thereof. The applicant attached a copy of “notice of assessment of costs" served by the respondent dated 22nd October, 2020 in the magistrate’s suit No113 of 2016 which is for purposes of executing the judgment.
7.In the replying affidavit the respondent claims that the appellant’s assertions in the supporting affidavit are untrue and calculated to steal a match. The applicant attached a memo of appeal which shows that the matter was at the High Court and the appellant has a copy of ruling dated 31st March, 2022.
8.Under paragraph 10,11,12 and 13 of the replying affidavit dated 9th March 2023 the respondent claims that the appeal was delayed for three years which is untrue as it is clear that it took just four days to file the appeal which was on 20th January 2020.
9.As to whether a stay of execution of judgement should be issued the principles guiding the grant of a stay of execution pending appeal are well settled under Order 42 rule 6(2) Civil Procedure Rules which provides:
10.In order to benefit from a stay of execution, the applicant must demonstrate a few things as pointed out by the Court of appeal in Halai & Another v Thornton &Turpin (1963) Ltd 119901 KLR 365 where the Court stated:
11.The respondent submits that there is no reason stated for the unreasonable delay; that it is not in dispute that judgement was delivered on 16th January, 2020; and that the application for stay was only filed on 12th November, 2020 which was approximately 10 months after judgment was read.
12.The applicants also failed disclose before court when they found out that the lower court did not have jurisdiction to grant stay. After filing the application on 12th November, 2020, it took the applicant a further 1 year and 8 months to move this Honourable Court to file the instant application
13.The applicants have totally failed to establish the substantial loss they are likely to suffer if stay is not granted. The Notice of Motion Application and/or the Supporting Affidavit do not demonstrate why the respondent should be kept from enjoying the fruits of the judgment.
Issues for Determination
14.The only issue for determination is whether an order for stay of execution of the judgment pending appeal should be allowed.
Analysis and Determination
15.The applicant seeks an order for stay of execution of the judgement delivered on 16th January 2020 pending hearing and determination of Kerugoya High Court Civil Appeal No.8 of 2020 filed on 20th January, 2020.
16.The law on stay of execution pending appeal is found in Order 42 rule 6(2) of the Civil Procedure Rules which provides as follows:
17.The principles are thus that: substantial loss may result to the applicant unless the order is made and that the application has been made without unreasonable delay
18.In Nicholas Stephen Okaka & another v Alfred Waga Wesonga  eKLR it was held:Substantial loss
19.The applicants aver that if the orders issued on 16th January, 2020 are executed, the whole appeal would be rendered nugatory; whilst the respondent avers that the applicants failed to establish the substantial loss they are likely to suffer if stay is not granted. The Notice of Motion Application and/or the Supporting Affidavit do not demonstrate why the respondent should be kept from enjoying his fruits of justice. Further, the respondent avers that he has not proceeded with execution since the Judgement was delivered on 16 January, 2020.
20.The court, in RWW v EKW  eKLR, considered the purpose of a stay of execution order pending appeal, in the following words:Security of decretal sum
21.Under Order 42 rule 6(2)(b) it is one of the conditions for stay that the Applicant is required to furnish security for the due performance of the judgment debt should the appeal fail.
22.The purpose of security was clearly enunciated in Arun C. Sharma vs. Ashana Raikundalia t/a Rairundalia & Co. Advocates & 2 others  eKLR, where the court stated:
23.The applicant has not furnished or proposed any reasonable security.
24.In my view therefore the applicant has not fulfilled the conditions for grant of stay. Further, they have delayed for over two years in prosecuting the appeal. They have not demonstrated the loss they will incur if stay of execution is not granted.
25.Accordingly, there is no basis for granting their application, which is hereby dismissed.