Whether This Court Should Grant The Applicant The Orders Sought.
12.The relevant provisions of the law in relation to stay of execution are Order 42 Rule 6 (1) and (2) of the Civil Procedure Rules 2010 which provide:
13.No doubt that there is obtaining a judgment against the Applicant in MCELRC Cause No. E2218 of 2021 – Kizito Shilibwa Shivachi vs East Africa Eagle Kenya Limited entered judgment against it on 25th April 2023, for the sum of Kshs. 685, 250/-.Further, the judgment has been assailed through the instant appeal.
14.This Court is faced with the task of analyzing whether the Appellant/Applicant has met the conditions for grant of an order of stay of execution, pursuant to Order 42 Rule 6 (2).
15.In the pursuit of discharging the task this Court should first answer the question, has the Appellant/Applicant proved that it will suffer substantial loss if the orders are not granted? On how the Court should interrogate the question, the Court in Century Oil Trading Company Ltd vs. Kenya Shell Limited Nairobi (Milimani) HCMCA No. 1561 of 2007, gave an apt approach, thus:
16.As regards on which party the burden of proving the Respondent’s financial ability falls, the Court of Appeal in National Industrial Credit Bank Ltd vs Aquinas Francis Wasike and Another  eKLR stated that:
17.In the present case, the Appellant/Applicant has averred that the Respondent will at any time proceed and execute against it for the sum of the decree of the lower court. Further, the sum is colossal. Considering the earnings of the Respondent as a security guard, about Kshs. 24,000/- per month, he will not have the capacity to refund the decretal sum once paid out to him, if called upon to once the appeal succeeds.
18.In line with the above authorities, once the Applicant expressed a reasonable fear that the Respondent would be unable to repay the decretal sum if the appeal succeeds, the Respondent became under an obligation to prove that he possessed the means to refund the money as and when called upon to.
19.In his Replying Affidavit, paragraph 13 thereof, the Respondent avers that he is a man of means, married, with several children and has a parcel of land valued at more than Kshs. 1.5 Million, hence he will be able to refund the decretal sum if the appeal succeeds. However, the Respondent has not produced any evidence before this Court to demonstrate the foregoing. It would have only been prudent for the Respondent to produce a copy of a title and a valuation report to demonstrate the existence of the alleged parcel of land, and its value. As such, he has not proved that he has sufficient resources to refund the decretal sum if required.
20.There is no doubt in my mind that the decretal sum, the subject matter of the appeal herein, is substantial, being Kshs. 685,250.
21.In the circumstances, I am persuaded that the Appellant/Applicant has indeed shown that they will suffer substantial loss if the order for stay of execution is not granted.
22.Secondly, has this application been made without unreasonable delay? I also answer this question in the affirmative. The application was filed on 15th May 2023, less than 30 days after the delivery of the judgment on 25th April 2023.
23.The Appellant/Applicant has expressed its willingness to deposit security for the performance of any decree or order that may ultimately become binding on it. The Respondent agrees that the Appellant/Applicant should be ordered to deposit the decretal sum in a joint interest earning account in the name of the Advocates, if this Court is inclined to grant the order of stay of execution.
24.In the case of Michael Ntouthi Mitheu vs Kivondo Musau  eKLR, the Honourable Court pronounced itself as follows on the reason why security should be given: -
25.By reason of the premises foregoing, and in line with the powers of this Court donated by Order 42 Rule 6, I hereby grant a stay of execution of the judgment and decree issued by the Court in MCELRC Cause No. E2218 OF 2021 – Kizito Shilibwa Shivachi vs East Africa Eagle Kenya Limited pending the hearing and determination of the Appeal herein.
26.In the upshot, the Applicant’s application for a stay of execution pending appeal is granted on the condition that:a.The judgment sum of Kshs. 685,250/- be deposited in a joint interest-earning account in the names of the Advocates for the parties within 30 days of today.b.In default, execution to issue forthwith.c.The Applicant/Appellant is to file and serve its Record of Appeal contemporaneously with submissions on the appeal within 65 days of today.d.The Respondent is to file and serve its submissions within 21 days of service.e.Mention on 5th March 2024 to confirm compliance and fix the matter for judgment.
27.It is so ordered.