Issue No.1- Whether The Applicant Has Met The Threshold For Grant Of Stay Pending Appeal
21.Order 42 Rule 6(2) of the Civil Procedure Rules provides:(2)No order for stay of execution shall be made under subrule (1) unless—(a)the court is satisfied that substantial loss may result to the applicant unless the order is made and that the application has been made without unreasonable delay; and(b)such security as the court orders for the due performance of such decree or order as may ultimately be binding on him has been given by the applicant.”
22.In the case of Butt vs Rent Restriction Tribunal  KLR 417 the court of Appeal gave guidance on how a court should exercise discretion in an application of stay of execution and held that:
23.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 41 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. Further the application must be made without unreasonable delay.
24.With the above in mind, the Court must then determine what substantial loss the appellants will suffer if stay of enforcement of the judgment of the subordinate court is not made in their favour.
25.On whether the Appellants will suffer substantial loss, substantial loss would entail what was aptly discussed by Kimaru, J in Century Oil Trading Company Ltd vs Kenya Shell Limited Nairobi (Milimani) HCMCA No. 1561 of 2007 where he stated that:
26.In the instant case the Applicant claim that in the event the Appeal is successful the respondent will not be in a position to compensate it for the losses that may be incurred as he is not a person of means.
27.The law is that once an applicant expresses apprehension about the respondent’s ability to refund the decretal amount, the evidential burden of proof shifts to the respondent to rebut that apprehension. This preposition was re-iterated by the Court of Appeal in ABN Amro Bank NK V Le Monde Foods Limited, Civil Application No. 15 Of 2002 [NRB] where it stated as follows:
28.In this case, the applicant’s claim that the respondent is not a man of means and he may be unable to refund the decretal amount if the appeal is successful has not been rebutted by any evidence.
29.It is worth noting that the respondent’s replying affidavit did not contain any averment regarding his financial standing. In the premises, I am satisfied that the respondent has failed to establish that he is capable of refunding the decretal amount should the appeal succeed. As a corollary, I am persuaded to find that the applicant has demonstrated that it is likely to suffer substantial loss as defined by Gikonyo J in James Wangalwa & Another vs Agnes Naliaka Chesoto, (supra) if the stay orders sought are not granted.
30.In regards to whether this Application has been filed without unreasonable delay, I note the lower court judgement was delivered on 2nd August, 2023 and this application was subsequently filed on 1st September, 2023. The application herein was therefore filed timeously.
31.With regards to security, the Applicants have shown willingness to offer security by way of a bank guarantee for due performance of the decree.
32.Whether the Appellants, have an arguable appeal? Clearly this is a question to be answered by the appellate court. However, having perused the Draft Memorandum of Appeal it raises some legal issues. An arguable appeal is also not one which must necessarily succeed, but one which ought to be argued fully before court; one which is not frivolous.
33.The three (3) prerequisite conditions set out in the aforesaid Order 42 Rule 6 of the Civil Procedure Rules, 2010 cannot be severed. The key word is “and”. It connotes that all three (3) conditions must be met simultaneously. In the case of Trust Bank Limited vs Ajay Shah & 3 Others,  eKLR at page 23 the court stated that;
34.In the instant case the Applicant has satisfied the three (3) prerequisite conditions set out in the aforesaid Order 42 Rule 6 of the Civil Procedure Rules, 2010. Consequently, I hereby grant stay of execution pending hearing and determination of the Appeal.
Issue No.2- What Would Be The Most Appropriate Security To Grant Under The Circumstance?
35.The Applicant proposes a provision of a bank guarantee of the decretal sum while the Respondent in his affidavit proposes that the decretal sum be deposited in the joint interest earning account in the name of both advocates for the parties herein.
36.The Respondent avers that the bank guarantee offered as security is unsafe. I have considered his averments and submissions in that regard. The Applicants have neither advanced any grounds in support of its proposal nor controverted the Respondent’s averments thereof.
37.In determining the security, the court has to strike a balance on the interests of the appellant and those of the respondent. In striking such a balance the court exercises a discretion which must at all times be geared towards the achievement of the justice between the parties.
38.In the case of Henry Sakwa Maloba vs Bonface Papando Tsabuko (2020) eKLR the High Court reiterated the finding in the case of Century Oil Trading Company Limited vs Kenya Shell Limited Nairobi (2008) eKLR, where the court stated:
39.In conclusion, I find that the application dated 31st August, 2023 meets the threshold for the grant of stay of execution. I therefore order as follows;1.That execution of the judgment and the ensuing Decree in Nakuru CMCC No. E253 of 2022 be and is hereby stayed pending the hearing and determination of the appeal on condition that the entire decretal sum be deposited by the Applicant in an interest earning account in the joint names of Counsel for the parties within 30 days of the date hereof;2.In default the stay orders shall lapse automatically without further reference to the court.3.Costs of the subject application shall abide the appeal.4.Directions on the appeal will be given after delivery of this ruling.