Peter Mbaka Omweru & 15 others v Crown Industries Limited [2021] KEELRC 1548 (KLR)

(a) the Court is satisfied 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. 11. In Kenya Shell Limited –vs- Benjamin Karuga Kibiru and Another [1986] eKLR, it was held :- “for the applicant to obtain a stay of execution, it must satisfy the Court that substantial loss would result if no stay is granted. It is not enough to merely put forward mere assertions of substantial loss, there must be empirical or documentary evidence to support such contention.” 12. The application is supported by an affidavit of Chetan Sanghrajka sworn on 8/12/2020 in which he states that the claimants were declared redundant in the year 2013 amongst other employees due to financial constraints suffered by the applicant. The deponent deposes at paragraph 12 of the Supporting affidavit thus:“12 That the Respondent/Applicant is reasonably and justifiably apprehensive that unless this matter is dealt with urgently and stay orders issued, it stand the risk of suffering substantial loss as execution will proceed against it despite the fact that there are substantive and meritorious grounds of appeal.” 13. The grounds of appeal are set out in paragraph 11(a) to (d) of the replying affidavit. 14. The deponent did not adduce evidence regarding financial status of the Claimants/Respondents and why in his opinion the claimants would be unable to refund the decretal sum if paid to them and the appeal is eventually successful. 15. The claimants have on the other hand submitted that the onus is on the applicant to demonstrate that he is likely to suffer substantial loss and has failed to adduce evidence to prove that on a balance of probabilities. 16. The claimants submitted further that the application is a gimmick intended to unlawfully prolong the execution process since the application is devoid of merit and does not meet the required threshold under Order 42, Rule 6 of Civil Procedure Rules. 17. The respondent cited the case of Butt –vs- Rent Restriction Tribunal [1982] eKLR 417 in its submissions and stating that the power of the Court to grant stay of execution is:(i) discretionary; (ii) there is no hinderance to the Court to grant the stay order to avoid the appeal being rendered nugatory; (iii) the Court should not refuse stay merely because in the opinion of the Court a better remedy may become available to the applicant at the end of the proceedings; and (iv) The Court may order provision of security for judgment and decree pending hearing and determination of the appeal. 18. In the present application, the applicant though brought the application timeously did not attempt at all to adduce evidence in the supporting affidavit to demonstrate why and how it is likely to suffer substantial loss if the order of stay is not granted. The applicant made a bare general statement that it is likely to suffer substantial loss. This in the Court’s view and finding does not suffice to satisfy this key requirement in Order 42, Rule 6 of the Civil Procedure Rules. 19. This consideration is coupled by the fact that the suit was filed in the year 2015 and the claimants/respondents have waited a long time to get judgment in this matter which judgment was finally rendered on 11th November, 2020. 20. It is not lost to the Court that no draft memorandum of appeal was attached to the application to demonstrate that the

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appeal is arguable. Mere reference to the intended grounds of appeal in the supporting affidavit is not sufficient in the Court’s view. 21. The Court finds that the balance of convenience is in favour of letting the Claimants/Respondents enjoy the fruits of judgment pending the hearing and determination of the intended Appeal. 22. Accordingly, the application is dismissed for lack of merit with costs. DATED AND DELIVERED AT NAIROBI THIS 21TH DAY OF JUNE, 2021. MATHEWS N. NDUMA JUDGE ORDER In view of the declaration of measures restricting court of operations due to the COVID-19 pandemic and in light of the directions issued by his Lordship, the Chief Justice on 15 th March 2020, this ruling has been delivered to the parties online with their consent. They have waived compliance with Order 21 rule 1 of the Civil Procedure Rules which requires that all judgments and rulings be pronounced in open court. In permitting this course, this court has been guided by Article 159(2)(d) of the Constitution which requires the court to eschew undue technicalities in delivering justice, the right of access to justice guaranteed to every person under Article 48 of the Constitution and the provisions of Section 18 of the Civil Procedure Act (chapter 21 of the Laws of Kenya) which impose on this court the duty of the court, inter alia, to use suitable technology to enhance the overriding objective which is to facilitate just, expeditious, proportionate and affordable resolution of civil disputes. MATHEWS N. NDUMA JUDGE Appearances Mr. Makori for Applicant/Respondent Mr. Upendo for claimant/respondent Ekale – Court Assistant

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