1.The application is dated 26th June 2023 and is brought under Sections 1A, 1B & 3A of the Civil Procedure Act, Order 42 Rule 6 & Order 51 of the Civil Procedure Rules seeking the following orders;1.That this application be certified as urgent and heard ex-parte in the first instance.2.That the honorable judge be pleased to grant a stay of execution of the judgment delivered on 21st June 2023 pending hearing and determination of this application.3.That the honorable judge be pleased to grant a stay of execution of the judgment delivered on 21st June 2023 pending the hearing of the intend Appeal.4.That the honorable court be pleased to grant any other reliefs it deems fit in the circumstances of this case.5.That costs of thig application be in course.
2.The application is premised on the grounds that this honorable court delivered judgment herein on 21st June 2023 in which it dismissed the Appellant /Applicant's Appeal. That the Applicant felt aggrieved with the judge's decision and intends to prefer an appeal to the court of appeal and has so far filed a Notice of Appeal. Appellant/Applicant stands to suffer substantial loss and damages if the orders sought are not granted as this will amount to losing her parcel of land to the Respondents. That this application has been timeously filed. That the Appellant/Applicant is ready to abide by any condition to be ordered by the honorable court for the due performance of the decree. That it is in the interest of justice and equity that the orders sought are granted so that the intended appeal is not tendered nugatory in the event it succeeds.
3.The Respondent stated that the said application is vexatious lacks merit and is an abuse of the Court's process. That the Appellant has not demonstrated that he has an arguable appeal with any chance of success. That the orders sort by the Applicant would be tantamount to eviction orders against him and his family as they are in current occupation of the suit property. That the proceedings and judgment of both the trial court and this appellate court confirmed that they have been in continuous occupation of the suit property. That the suit was filed under the doctrine of adverse possession whereby he sought to have the suit property registered in his names as he had been in occupation of the same for the last twenty years.
4.This court has considered the application and the submissions therein. The principles for granting stay of execution are provided for under Order 42 rule 6 (1) of the Civil Procedure Rules as follows:Order 42, rule 6 states:
5.The appellants need to satisfy the Cour t on the following conditions before they can be granted the stay orders;1.Substantial loss may result to the applicant unless the order is made.2.The application has been made without unreasonable delay, and3.Such security as the Court orders for the due performance of the decree or order as may ultimately be binding on the applicant has been given by the applicant.
6.The principles governing the exercise of the court’s jurisdiction are now well settled. Firstly, the intended appeal should not be frivolous or put another way, the applicant must show that they have an arguable appeal and second, this Court should ensure that the appeal, if successful, should not be rendered nugatory. These principles were well stated in the case of Reliance Bank Ltd (In Liquidation) vs Norlake Investments Ltd – Civil Appl. No. Nai. 93/02 (UR), thus;
7.The question of stay pending appeal has been canvassed at length in various authorities, such as in the Court of Appeal decision in Chris Munga N. Bichange vs Richard Nyagaka Tongi & 2 Others eKLR where the Learned Judges stated the principles to be applied in considering an application for stay of execution as thus;
8.In the case of Mohamed Salim T/A Choice Butchery vs Nasserpuria Memon Jamat (2013) eKLR, the court stated that;
9.We are further guided by this court’s decision in Carter & Sons Ltd vs Deposit Protection Fund Board & 2 Others Civil Appeal No. 291 of 1997, at Page 4 as follows;
10.On perusal of the court record I find judgment was delivered in this matter on 21st June 2023. Applicant felt aggrieved with the judge's decision and intends to prefer an appeal to the court of appeal and has so far filed a Notice of Appeal. Appellant/Applicant stands to suffer substantial loss and damages if the orders sought are not granted as this will amount to losing her parcel of land to the Respondents. This is a case of adverse possession. The Respondents are in current occupation of the suit property. The proceedings and judgment of both the trial court and this appellate court confirmed that they have been in continuous occupation of the suit property. I do not see any prejudice that the Applicant would suffer if the stay is not granted. I find that the intended appeal is not arguable and is frivolous. Secondly, I am not persuaded that if the application is not granted, the success of the appeal, were it to succeed, would be rendered nugatory. I find that the applicant has not fulfilled the above grounds mentioned to enable me grant the stay. I find the application dated 6th June 2023 is unmerited and I dismiss it with costs.
11.It is so ordered.