Notice of Motion dated 23rd October 2019 - Stay of Execution pending Appeal
The bottom line
#You can pause a court's enforcement order by proving you meet three key conditions: timeliness, substantial loss, and offering security.
What this practically means
#Executive summary
#Key legal issues
#Timeliness of the stay application
The application filed about two weeks after the impugned ruling was filed timeously.
The court measured the delay between delivery of the impugned ruling on 11th October 2019 and filing of the motion on 23rd October 2019, found the interval of about two weeks reasonable, and held the first condition satisfied.
Substantial loss
The applicant established likelihood of substantial loss because the claim that the respondent could not refund the decretal amount if the appeal succeeded went unchallenged.
The court noted the respondent's replying affidavit did not dispute the applicant's assertion that recovery of the decretal amount from the respondent would be impossible should the appeal succeed, and therefore accepted the substantial loss claim as established.
Security for the decree
The fixed deposit of KShs.1,147,854 in the joint names of both counsel constituted sufficient security.
The applicant exhibited a fixed deposit receipt for the entire decretal amount held jointly by counsel on record and expressed willingness to have it held as security; the respondent did not counter that the amount represented the entire decretal sum.
Legal principles established
#- An applicant for stay of execution under Order 42 Rule 6 must demonstrate that the application was filed timeously, that he is likely to suffer substantial loss if stay is not granted, and that he is ready and willing to offer security for the due performance of the decree.
- An unchallenged claim of substantial loss and inability of the decree-holder to refund the decretal amount suffices to establish the substantial loss condition.
Court orders
#- 1.Stay of execution of the decree resulting from the judgment delivered by the lower court on 21st May 2019 pending the hearing and determination of the appellant's appeal
- 2.The fixed deposit of KShs.1,147,854 held at Equity Bank under account number [xxxx] by both counsel on record to continue to be held as security pending disposal of the appeal
- 3.Costs of the application to abide the outcome of the appeal
- On appeal from
- Lower court (magistrates' court)
- Not stated
- Jurisdiction invoked
- Order 42 Rule 6 of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Notice of Motion dated 23rd October 2019 - 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.