High Court 774 of 2022

June, 2021 while the Motion was brought sometime on or about the 19 th day of August, 2021; about two (2) months later. I therefore do not find the delay to be unreasonable. 12. Concerning the reason(s) for the delay, it is the applicant’s assertion and submission that the delay was occasioned by the fact that the judgment was delivered without notice to the parties and that attempts at obtaining a copy of the same were further delayed until 10 th August, 2021. 13. The 1st respondent on its part states and submits that the parties were notified of the delivery of the judgment via SMS on 14 th June, 2021 whereas the decree was served upon the applicant’s advocate on 10 th August, 2021 which seems to have triggered the instant Motion. 14. Upon taking into account the rival averments indicated above, I find the explanation offered by the applicant for the delay to be reasonable in the circumstances. 15. On the principle touching on whether an arguable appeal exists, the applicant on the one part states and submits that its appeal is arguable and has high chances of success, further submitting that it is aggrieved by the decision of the trial court finding that it required the consent of the 1st respondent before renewing its insurance policy held with the 2 nd respondent. 16. The 1st respondent is of the view that no arguable appeal exists since the trial court properly considered the material placed before it and arrived at a reasonable finding. 17. It is apparent from the grounds to the memorandum of appeal on record that the intended appeal is challenging the finding of the trial court in relation to an insurance policy taken out by the applicant with the 2 nd respondent. In the premises, I am satisfied that the applicant has raised arguable grounds in its appeal. 18. On the final condition touching on prejudice, the applicant states that the 1 st respondent will not be prejudiced if the orders sought are granted. The 1st respondent did not specifically touch on this subject. 19. In the absence of any credible evidence of prejudice to be suffered by any of the respondents, I am convinced that it would be in the interest of justice to grant the applicant an opportunity to challenge the trial court’s decision on appeal. I therefore find it reasonable in the circumstances to extend the time required for the applicant to lodge their appeal. 20. The second order sought is that of a stay of execution of the decree pending appeal. 21. The guiding provision is Order 42, Rule 6(2) of the Civil Procedure Rules which sets out the following conditions in determining an application for stay. 22. The first condition stating that the application must have been made without unreasonable delay has already been addressed above. 23. The second condition touches on substantial loss to be suffered by an applicant. Going by the averments made in the respective supporting affidavits to the instant Motion and the written submissions, it is the applicant’s apprehension that unless an order for a stay of execution is granted, it is likely that the applicant will not be able to recover the decretal sum from the 1 st respondent once the same is paid to it and the appeal succeeds. In reply, the 1 st respondent is of the view that the Motion is purely intended to delay execution of the decree arising out of the impugned judgment. 24. The question on who has the burden of proof on the issue of refund of the decretal sum was aptly discussed by the Court of Appeal in the case of National Industrial Credit Bank Ltd v Aquinas Francis Wasike & another [2006] eKLR cited in the applicant’s submissions, where it held thus: “Once an applicant expresses a reasonable fear that a respondent would be unable to pay back the decretal sum, the evidential burden must then shift to the respondent to show what resources he has since that is a matter which is peculiarly within his knowledge…” 25. In the absence of anything to indicate or ascertain the 1 st respondent’s financial standing, I am satisfied that the applicant has reasonably shown the likelihood of substantial loss occurring should the order for a stay of execution be denied. 26. Under the final condition which is the provision of security for the due performance of such decree or order, the applicant has indicated its readiness and willingness to comply with the same, whereas the 1 st respondent urges that half the decretal sum be paid to itself while the remaining half be deposited in a joint interest earning account. 27. Upon my perusal of the record, I have not come across anything to justify release of part of the decretal sum to the 1 st respondent at this stage and hence I am unable to grant the request made by the 1 st respondent in this respect. 28. The upshot therefore is that the Motion dated 19th August, 2021 is allowed as prayed, giving rise to the following orders: i. The memorandum of appeal on record shall be deemed as having been duly filed with leave of court upon payment of the

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requisite court filing fees, where applicable. ii. There shall be a stay of execution of the judgment delivered on 11 th June, 2021 on the condition that the applicant deposits the entire decretal sum in an interest earning account to be held in the joint names of the parties’ advocates/firm of advocates within 45 days from today, failing which the order for stay shall automatically lapse. iii. Costs of the application to abide the outcome of the appeal. DATED, SIGNED AND DELIVERED ONLINE VIA MICROSOFT TEAMS AT NAIROBI THIS 25TH DAY OF MARCH, 2022. ........................ J.K. SERGON JUDGE In the presence of: ............................................for the Appellant/Applicant ....................................................for the 1st Respondent ...................................................for the 2nd Respondent

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