Gobe v Bora

a. The applicant being aggrieved by the Judgment, orders and decree of this Honourable court made by the honourable (Mr) M.S Kimani Principal Magistrate on March 3, 2023 intends to appeal against the said judgment, orders and decree. b. After being dissatised with the said judgment, the applicants herein instructed their advocates on record to lodge the appeal herein. c. The defendant/applicant stands to suer irreparable (sic) if the orders sought are not granted. d. The intended appeal raises strong arguable issues in which the appeal itself stands good chances of success. e. On balance of convenience there are good and sucient grounds for the grant of stay of execution as sought by the Applicant. f. The application herein has been brought without undue delay. g. The applicant is willing to abide with any conditions that the Honourable court may deem t and just to impose including an order for security. h. Any delay to hear this application will defeat the object with which it is brought under and render it nugatory. i. It is in the interests of administration of justice that the prayers sought be allowed as prayed. 3. The application was canvassed by way of written submissions. 4. The applicant submits that his memorandum of appeal evinces enough grounds for his application to succeed. He proers the case of RWW v EKW for his assertion that “The purpose of an application for stay of execution pending an appeal it to preserve the subject matter in dispute so that the rights of the appellant who is exercising the undoubted right of appeal are safeguarded and the appeal if successful, is not rendered nugatory” 5. The applicant tells the court that he is ready to comply with any court orders appertaining to execution. 6. The respondent has opposed the application and argues that the applicant has not demonstrated that he would suer irreparable damages, if the orders sought in this application are not granted. The respondent has proered the cases of Elena D Korir v Kenyatta University [2014] eKLR and Machira t/a Machira & Co Advocates v East African Standard [2002] eKLR for his assertion that irreparable loss must be demonstrated. 7. The respondent says that the applicant has not oered deposit for security and submits that he should be compelled to pay security for costs. He proers the case of Aron C Sharma v Ashan Raikundalia [2014] eKLR for his assertion that “The purpose of the security needed under Order 42 is to guarantee the due performance of such decree or order as may ultimately be binding on the applicant”. 8. I have considered the pleadings, the authorities and the submissions proered by the parties to buttress their assertions. I do nd that the orders sought by the applicant are merited. 9. In the circumstances, I issue the following orders:a. Prayer 2 in the application is granted. https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/22264/eng@2023-12-11 2

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b. Prayer 3 in the application, for orders of stay of execution is hereby conditionally granted Provided that the applicant will deposit with court a sum of Kes 600,000/= to guarantee the due performance of such decree or order as may ultimately be binding on the applicant, within 21 days of today provided Further that if the applicant does not deposit with court the said sum of Kes 600,000/= within the stipulated period of 21 days, the order for Stay of Execution granted herein shall automatically lapse. DELIVERED IN OPEN COURT AT ISIOLO THIS 11TH DAY OF DECEMBER, 2023 IN THE PRESENCE OF: Court assistant: Balozi/Rahma Ms Nyasani holding brief for Owande for the Respondent. Appellant or Advocate not in court. HON. JUSTICE P.M NJOROGE JUDGE https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/22264/eng@2023-12-11 3

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