Bakari v Sheikh & another

3. The court issued directions on 7th November 2024 for the application to be heard on the 3rd December 2024, when Mr. Aboubakar and Mr. Tolo, learned counsel for the plainti and 1st defendant respectively, tendered their oral submissions for and against the application, which the court has considered. 4. The following are the issues for the determinations by the court: 5. a. Whether the plainti has met the threshold for the order of stay of execution pending hearing and determination of the appeal to issue. b. Who pays the costs? The court has carefully considered the grounds on the application, adavit evidence by both parties, oral submissions by the two learned counsel for and against the application and come to the following conclusions: a. The application has invoked Order 42 Rule 6 of the Civil Procedure Rules, that inter alia provides under subrule 2 that: “ (2) No order for stay of execution shall be made under subrule (1) unlessa. 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.” The record conrms that the court delivered its judgement that is sought to be stayed on the 25th September 2024. In that judgement, the court inter alia ordered the plainti to pay the 1st defendant rent arrears totalling Kshs.74,000, and to continue paying monthly rent at Kshs.600 for any other additional period she remains on the plot until she vacates within ninety days or is evicted. The ninety days lapses on or about 25th December 2024. b. That from the adavit evidence presented by the parties and submissions by the learned counsel, the plainti has not vacated from the suit property. She has also neither paid the rent arrears nor the monthly rent. The instant application dated 5th November 2024, was led on the 6th November 2024, which was about 40 days from the date of the delivery of the judgement. As the court had directed the plainti to vacate in ninety days, I nd the application was led without unreasonable delay. c. The other test the plainti was expected to surmount is to show that she would suer substantial loss if the stay of execution order was not granted. She has indicated that the 1st defendant may embark in evicting her after 25th December 2024. She further added such an occurrence https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/13595/eng@2024-12-06 2

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may result to her appeal being rendered nugatory. The learned counsel for the 1st respondent contended that the plainti has not shown that the 1st defendant has commenced the process of evicting her. That while it is indeed true that the 1st defendant is yet to commence the process of evicting the plainti, there is no guarantee or undertaking that he will not do so after the expiry of the ninety days that lapses on the 25th December 2024. The plainti’s fears may not be taken as unreasonable, and if the 1st defendant was to carry out the eviction, it would denitely include demolishing the house without land thereon. Such a demolition will denitely be a substantial loss was the plainti to thereafter be successful on the pending appeal. The plainti has therefore established that test. 6. d. On the question of security for the due performance of such decree or order, it is clear the plainti has not made an oer for the same through the application or submissions. The contention by the plainti’s counsel in his submissions that security for due performance only applies in money decrees was vehemently opposed by the learned counsel for the 1st defendant. My reading of Order 46 Rule 2(b) of Civil Procedure Rules does not show that security for the due performance of decree or order as may ultimately be binding is limited to money decrees only as alleged by the Counsel for the Plainti. Also, the failure by the plainti to oer security for due performance of the decree/order does not mean the court cannot require her to provide a suitable security as a condition to the grant of the stay order. The court will therefore consider or fashion the appropriate order to issue to in a way, secure the performance of the decree/ order. e. That having found merit in the application, and as under section 27 of the Civil Procedure Act chapter 21 of Laws of Kenya costs follow the events unless otherwise directed, the court is of the view the costs in the application will abide the outcome of the pending appeal. Flowing from the above determinations, the court nds and orders as follows: a. That stay of execution in terms of prayer (2) of the notice of motion dated the 5th November 2024, is granted on condition that the plainti deposits, and continues depositing the amounts detailed here below, in an interest earning bank account in the joint names of the parties’ counsel or with the Court within fourteen (14) days from today: i. The whole rent arrears of Kshs.74,000. https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/13595/eng@2024-12-06 3

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ii. Accrued monthly rent of Kshs.600 from October 2024 to December 2024. iii. Thereafter, continue depositing the subsequent monthly rent by the tenth day of each month. b. That should the plainti fail to comply with the above condition or default in the monthly rent deposits, the stay of execution order shall automatically lapse. c. The costs of the application to abide the outcome of the appeal. It is so ordered. DATED, SIGNED AND VIRTUALLY DELIVERED ON THIS 6TH DAY OF DECEMBER 2024. S. M. Kibunja, J. ELC MOMBASA. In the Presence of: Plainti : Mr. Abubakar Defendants : Mr Idd for Tolo Leakey – Court Assistant. S. M. Kibunja, J. ELC Mombasa https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/13595/eng@2024-12-06 4

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