1.Through a Notice of Motion dated 18th September 2023 expressed to have been brought under Order 51 Rue 1 and Order 42 Rule 6 of the Civil Procedure Rules 2010, the Appellant/Applicant has sought the following orders:a.Spent.b.Spent.c.Spent.d.That pending the hearing and determination of the Appeal herein, the Honourable Court does grant a stay of execution of the judgment and orders made on 25th August 2023 in CMEL No. 210 of 2020 (Milimani).e.That the costs of the Application be provided for.
2.The application is premised on the grounds on the face of it, and buttressed by those in the Supporting Affidavit sworn by one Elizabeth K. Muturi on 18th September, 2023.
3.The Applicant states that the trial Court entered judgment against it on 25th August 2023 in the sum of Kshs. 131,967/-, interest and costs of the suit. Aggrieved by the said judgment, it filed the instant appeal. In its view, the appeal has a high chance of success. It shall be rendered nugatory if the stay of execution is not granted. Further, it has made this application without delay.
4.The Appellant/Applicant contends that it will suffer substantial loss if the orders sought herein are not granted. The decretal sum is substantial and if paid out to the Respondent, the same will not be recoverable in the event the appeal succeeds, as he has no the Respondent’s income and assets are unknown to the Appellant/Applicant.
5.The Applicant also confirms that they are willing to deposit security equivalent to the entire decretal sum in a joint interest-earning account in the names of the Advocates for the parties, within 30 days of any order to do so, in compliance with the requirements of the Civil Procedure Rules 2010.
6.The Respondent opposed the Notice of Motion through a Replying Affidavit sworn on 29th September, 2023. The Respondent argues that the Applicant has not met the threshold for the grant of an order of stay of execution. It has not demonstrated the substantial loss that they are likely to suffer in the event the stay of execution is not granted. On that basis, the Respondent urges this Court to dismiss the application dated 18th September, 2023 with costs. In the alternative and without prejudice to his initial argument, the Respondent prays that the Applicant be ordered to deposit the decretal sum in Court within 30 days.
7.The parties elected not to file submissions for and against the Application but relied on their respective Affidavits.
Analysis and determination
8.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:
9.I have carefully considered the material placed before this Court by the Respondent, in my view, the same is too sketchy. In the circumstances, discerning the nature of the matter that was before the learned trial magistrate isn’t possible. This Court is unable therefore to gauge whether the appeal herein is arguable as contended by the Applicant.
10.Further, the Respondent contends that it will suffer substantial loss if the orders sought aren’t granted, as the Respondent will be unable to refund the sum of the decree in the lower court. I have noted the sum. It is not substantial. The material presented by the Applicant doesn’t reveal a ground persuasive enough to attract this Court’s conclusion that the Respondent will not be able to refund the sum.
11.Applicants in matters stay of execution pending appeal should take heed, it is not enough to assert generally the fear that the sum of the decree would not be recovered as and when required to, upon the success of the appeal. The evidential burden can only shift to the Respondent to demonstrate his means if the assertion by the Applicant is backed by sufficient material. This position is aligned with the principle enunciated in the case of National Industrial Credit Bank Ltd vs Aquinas Francis Wasike and Another  eKLR where the Court of Appeal stated that:
12.By reason of the foregoing premises, I come to an inescapable conclusion that the Applicant’s application hasn’t met the legal threshold for a grant of stay of execution orders pending appeal. The application is hereby dismissed with costs.
13.It is so ordered.