Limo v Kutto & another

6. The application was canvassed by way of written submissions and both parties led their submissions which I have considered. ISSUES FOR DETERMINATION 7. The sole issue for determination is whether the Applicant has met the conditions for the grant of a stay of execution pending appeal. ANALYSIS AND DETRMINATION 8. The principles that guide the court in the exercise of its discretion to grant a stay of execution are now well settled. The substantive provision for grant of stay pending appeal is found in Order 42 Rule 6 of the Civil Procedure Rules. Order 42 Rule 6 provides in part as follows: 6.(1) No appeal or second appeal shall operate as a stay of execution or proceedings under a decree or order appealed from except in so far as the court appealed from may order but, the court appealed from may for sucient cause order stay of execution of such decree or order, and whether the application for such stay shall have been granted or refused by the court appealed from, the court to which such appeal is preferred shall be at liberty, on application being made, to consider such application and to make such order thereon as may to it seem just, and any person aggrieved by an order of stay made by the court from whose decision the appeal is preferred may apply to the appellate court to have such order set aside. (2) No order for stay of execution shall be made under sub-rule (1) unless— 9. (a) the court is satised 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. In the case of M.O.M Amin Transporters Limited & Another v Alexander Ndung’u Mbugua & 2 Others [2017] eKLR the court held that all the three conditions had to be met and satised simultaneously in order for the court to exercise its discretion to grant a stay of execution. The court stated as follows: “ 13. In the cases of Kiplagat Kotut vs Rose Jebor Kipngok [2015] eKLR, Kenya Commercial Bank Limited vs Sun City Properties Limited & 5 Others [2012] eKLR and Kenya Shell Limited vs Kibiru (Supra), the common thread was that a stay of execution will not be granted unless the conditions in Order 42 Rule 6 of the Civil Procedure Rules are satised. 10. Furthermore, in the case of Equity Bank Limited v Taiga Adams Company Limited [2006] eKLR Mutungi J stated as follows: “ It is not enough to satisfy 1 or 2 of the requirements under 42 Rule 6. All of the requirements must be met for the court to grant orders of stay pending appeal”. 11. In the instant suit the Applicant has mentioned in her adavit that if a stay of execution is not granted, they will be displaced from their home thus they will suer substantial loss and prejudice and their appeal will be rendered nugatory. https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/14838/eng@2022-11-18 2

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12. In the case of Wangalawa & Another v Agnes Naliaka Cheseto (2012) eKLR the Court observed as follows: “ The applicant must establish other factors which show that the execution will create a state of aairs that will irreparably aect or negate the very essential core of the applicant as the successful party in the appeal. This is what substantial loss would entail, a question that was aptly discussed in the case of Silverstein N. v Chesoni (2002) 1 KLR 867 and also in the case of Mukuma v Abuoga quoted above. The last case referring to the exercise of discretion by the High Court and Court of Appeal in the granting of stay of execution, under Order 42 of the CPR and Rule 5 (2) (b) of the Court of Appeal Rules respectively, emphasized the centrality of substantial lost thus: “…the issue of substantial loss is the cornerstone of both jurisdictions. Substantial loss is what has to be prevented by preserving the status quo because such loss would render the appeal nugatory.” 13. Substantial loss has been dened to be the kind of a loss that is assessed by the totality of the consequences awaiting the Applicant if stay is not granted. In Dawie Chebutal Rotich & 2 others vs Emirates Airlines, Civil Case No. 368 of 2001, Mutunga J deformed substantial:“ …….is a relative term and more often than not can be assessed by the totality of the consequences which an applicant is likely to suer if stay of execution is not granted and that applicant is therefore forced to pay the decretal sum” 14. With regard to the rst condition which is that the Applicant must demonstrate that he or she shall suer substantial loss, the Applicant has stated that the suit property is her matrimonial home where she resides with her children. This fact was not controverted by the Respondent during the trial. I am therefore satised that if the Applicant is thrown out of her matrimonial home before her appeal is heard and determined, the substratum of her appeal will be destroyed and her appeal shall be rendered nugatory. Moving on to the second condition which is timeliness, it is clear that the application which was led a day after the judgment was delivered was led without any delay whatsoever. Finally, with respect to the third condition for stay which relates to security for costs, the Applicant has in her supporting adavit deposed that she is willing to abide by any reasonable condition as regards costs as the court may impose. This in my view is sucient demonstration of her willingness to furnish security for costs. All in all, the Applicant has satised that three conditions set out in Order 42 rule 6 of the Civil Procedure Rules and I hereby grant the application and make the following orders: a. That a stay of execution of the decree issued vide the judgment delivered on February 23, 2022 is hereby granted pending the hearing and determination of the intended appeal on condition that the Applicant deposits Kshs. 100,000/= in court within 30 days, as security for costs. If the said amount is not deposited in court within the stipulated time the order for stay shall automatically lapse. b. The costs of the application shall abide the appeal. DATED, SIGNED AND DELIVERED AT ELDORET THIS 18TH DAY OF NOVEMBER, 2022 J.M ONYANGO https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/14838/eng@2022-11-18 3

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JUDGE https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/14838/eng@2022-11-18 4

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