Peter Mutavi & 1 other v Miriam Nduku Maweu & 1 other

3. The Applicants submit further that they will comply with any conditions for grant of stay of execution given by this honourable court and the Respondents shall not suffer any prejudice if the application is allowed. Further, that it is in the interest of justice that the application be allowed. 4. The Respondents in opposition to the application filed a replying affidavit sworn on 15/04/2024 by Damaris Mutio Maweu, the 1st Respondent. 5. The Respondents in opposition to the application, submit that the Applicants have failed to demonstrate the substantial loss, if any, which they stand to suffer if they satisfy the decree of the trial court. The Respondents aver that the Applicants allegations that there is a likelihood that they will be unable to recover the decretal sum awarded from the Respondents if the same is paid is a mere ignorant assumption since the 1st Respondent is an employee of the Police service with assets and is well endowed financially and hence is in a position to refund the decretal sum, if this court is inclined to allow the appeal. The Respondents submit too that they stand to suffer prejudice if the application is allowed as they shall be denied the fruits of their judgment and that justice. will not have been served if the Respondents who are successful litigants are condemned to wait for the determination of the appeal for them to be able to enjoy the fruits of their success or are condemned to a release of a very minimal amount, making a mockery of the judicial system. 6. It is the Respondent’s assertion that if the court is inclined to allow the application, then it should order that half the decretal amount of Kshs.376,710/= be paid to the Respondents and the other half be deposited in court. 7. This is an application that invokes the discretionary powers of the court. Of course, discretionary powers must be exercised judiciously. It is brought under Order 42 Rule 6(1) of the Civil Procedure Rules, 2010 which empowers this court to stay execution, either of its judgement or that of a court whose decision is being appealed from, pending appeal. The conditions to be met before stay is granted are provided by the Rule 6(2) as follows: “ No order for stay of execution shall be made under subrule (1) unless– 8. (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.” The Court of Appeal in Butt v Rent Restriction Tribunal [1982] KLR 417 gave guidance on how a court should exercise discretion and held that: “ 1. The power of the court to grant or refuse an application for a stay of execution is a discretionary power. The discretion should be exercised in such a way as not to prevent an appeal. 2. The general principle in granting or refusing a stay is; if there is no other overwhelming hindrance, a stay must be granted so that an appeal may not be rendered nugatory should that appeal court reverse the judge’s discretion. 3. A judge should not refuse a stay if there are good grounds for granting it merely because in his opinion, a better remedy may become available to the applicant at the end of the proceedings. https://new.kenyalaw.org/akn/ke/judgment/kehc/2024/17268/eng@2024-10-03 2

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4. The court in exercising its discretion whether to grant [or] refuse an application for stay will consider the special circumstances of the case and unique requirements. The special circumstances in this case were that there was a large amount of rent in dispute and the appellant had an undoubted right of appeal. 5. The court in exercising its powers under Order XLI rule 4(2)(b) of the Civil Procedure Rules, can order security upon application by either party or on its own motion. Failure to put security for costs as ordered will cause the order for stay of execution to lapse.” 9. A perusal of the memorandum of appeal shows that the Applicants are appealing against the trial court’s decision both on liability and quantum. This court is not in a position to know the outcome of the Appellants’ appeal but again it cannot just allow the Respondents who are successful litigants to be condemned to wait for the determination of the appeal for them to be able to enjoy the fruits of their successful litigation. 10. In the circumstances, I direct that half the decretal amount be released to the Respondent's counsel within 30 days from the date of the delivery of this ruling. The other half of the decretal amount shall be deposited into an interest earning account in the joint names of the advocates for the Applicants and the Respondents within 30 days from the date of the ruling. 11. The Appellants are directed to compile, file and serve their record of appeal within 45 days from the date of this ruling and compliance of the same to be confirmed on a mention date to be given at the delivery of this ruling. 12. The costs of the application shall abide the outcome of the appeal and shall follow the cause. DATED, SIGNED & DELIVERED AT MACHAKOS THIS 3RD DAY OF OCTOBER, 2024. NOEL I. ADAGI JUDGE https://new.kenyalaw.org/akn/ke/judgment/kehc/2024/17268/eng@2024-10-03 3

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