Applicant v Respondent (Stay of Execution Pending Appeal)
The bottom line
#Appealing a judgment gives you the right to ask the High Court for a stay, but you must prove you face substantial financial loss.
What this practically means
#Executive summary
#Key legal issues
#Whether a fresh stay application in the appellate court after the trial court has ruled on stay is an abuse of process
Not an abuse; the applicant merely exercised its right under Order 42 Rule 6(1)
Order 42 Rule 6(1) gives a party who has appealed a right to apply for stay in the appellate court whether or not stay was granted or refused below. The appellate court considers such an application independently and may make such orders as it deems fit. An aggrieved party may also apply to have the lower court's stay order set aside.
Whether the applicant demonstrated substantial loss
No; the claim that depositing the balance would affect working capital was unsubstantiated
The onus of proving substantial loss rests on the applicant and must be discharged by credible evidence, not averments. Although the applicant is a going concern, no evidence showed it would fold up or how its operations would be adversely affected if the trial court's condition was upheld. However, balancing competing interests, stay was granted on terms securing the entire decretal sum.
Timeliness of the application
Filed without unreasonable delay
Judgment was delivered on 30th January 2019, the appeal filed about a month later, a stay application was filed in the trial court the same day, and the present application was filed three weeks after the trial court's ruling on 7th October 2019.
Legal principles established
#- Once an appeal is filed, the appellate court has original jurisdiction to hear and determine a stay application afresh, whether or not stay was granted or refused by the court appealed from
- Proof of substantial loss must be by credible evidence, not mere averments or unsubstantiated statements
Court orders
#- 1.Prayer 3 of the motion allowed: stay of execution of the lower court's judgment granted on condition that the applicant deposits the remainder of the decretal sum, KShs.5,759,146, in a joint interest-earning account operated by both counsel on record
- 2.The deposit shall be made within 60 days failing which the stay orders granted will stand discharged
- 3.Costs of the application to abide the outcome of the appeal
- On appeal from
- Magistrates' Court (trial court, Hon. P N Gesora, CM)
- Jurisdiction invoked
- Order 42 Rule 6(1) of the Civil Procedure Rules - appellate court's power to hear stay applications afresh
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Applicant v Respondent (Stay of Execution Pending Appeal)", Case Analysis (2020). . Source:
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.