John Ngugi K. Chege T/A Vetagro & Pulpers v Kenya Veterinary Board

taking hold thus barring him from practicing consequently occasioning him substantial loss, rendering the motion otiose and a mere academic exercise. In conclusion he states that he has an arguable appeal therefore it is in the interest of justice that the motion is allowed as prayed. 3. The Respondent opposes the motion by way of a replying affidavit dated 02.12.2024 deposed by Dr. Benson Kibore. The nucleus of his response is that the Respondent’s decision on 31.10.2024 was arrived at upon the Applicant’s own admission and plea of guilty therefore the pending appeal is entirely devoid of merit. 4. Directions were taken on disposal of the Applicant’s motion by way of written submissions. The parties duly complied. That said, the Court has considered the rival affidavit material and postulates that the issues for determination concern: a. Whether the Court ought to grant an order of stay of execution of the Respondent’s decision pending hearing and determination of the instant appeal? b. Who ought to bear the costs of the motion? Whether the Court ought to grant an order of stay of execution pending hearing and determination of the instant appeal? 5. 6. It is trite that the power of the Court to grant stay of execution of a decree pending appeal is discretionary, however the discretion should be exercised judicially. See Butt v Rent Restriction Tribunal [1982] KLR 417. The Applicant’s prayer for stay of execution pending appeal, is brought under Order 42 Rule 6 of the CPR which provides that: “ [1] No appeal or second appeal shall operate as a stay of execution or proceedings under a decree or order appealed from except appeal case of in so far as the court appealed from may order but, the court appealed from may for sufficient cause order stay of execution of such decree or order, and whether the application for such stay shall have been granted or refused by the court appealed from, the court to which such appeal is preferred shall be at liberty, on application being made, to consider such application and to make such order thereon as may to it seem just, and any person aggrieved by an order of stay made by the court from whose decision the appeal is preferred may apply to the appellate court to have such order set aside. [2] No order for stay of execution shall be made under subrule [1] unless— [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”. From the said provisions, it is clear that in order to succeed in an application for stay of execution, an applicant must demonstrate that substantial loss may result unless the order of stay is issued; that the motion seeking stay pending appeal has been brought without undue delay; and must give security for the due performance of any decree or order that may ultimately be found to be binding on the applicant. Further, the test on substantial loss and or prejudice likely to be occasioned to a party, where the decree sought to be appealed is a money decree, appertains difficulty in paying, or loss of money if https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/11790/eng@2025-07-31 2

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payment is made since the Respondent would be unable to repay the decretal sum, was conclusively addressed in the of-cited decision of Kenya Shell Ltd v Kibiru & Another [1986] KLR 410. 7. Here, it must be stated that the decision sought to be appealed in not stricto senso a money decree notwithstanding imposed sentence as against the Applicant containing monetary aspects to it. That said, it is in dispute that the Applicant moved with alacrity in filing the instant motion given the fact that the impugned decision of the Board was rendered on 15.10.2024 and the appeal alongside the instant motion were lodged on 14.11.2024 and 14.11.2024 respectively. On substantial loss, the Applicant has asserted there is a real risk of his suspension taking hold thus barring him from practicing consequently occasioning him substantial loss, rendering the appeal otiose and a mere academic exercise. The Respondent’s retort was that the appeal lacks merit as such the motion ought to be dismissed. 8. The question of substantial loss here presents a unique challenge. It is notable that the decision sought to be appealed is a finding and sentence imposed upon the Applicant. The sentence as can be garnered for [Annexure JNC] was a suspension of the Applicant’s license for a period of 12 months from 15.10.2024 and a fine of Kshs. 100,000/- that was to be paid within sixty [60] days of 15.10.2024. The instant application was lodged on 18.11.2024 and later on 19.12.2024, this Court granted the Applicant interim stay of execution of the conviction and sentence of Kenya Veterinary Board in Inquiry No. 10/09/2024 and stayed the implementation of the Gazette Notice No. 14741 dated 31.10.2024 together with all other orders ensuing therefrom pending hearing and determination of the application. As it were, the suspension of his license was effective between 15.10.2024 and 19.12.2024, with the connotation of time served. Thus, as is, the Applicant’s license is effective as a result of this Court’s interim orders whereas the imposed fine has equally been held in abeyance. 9. The Applicant apprehension is that, should the Court decline to grant the motion, he would be unable to practise pending determination of the appeal whereas should his appeal succeed the same would be prejudicial to him as the appeal would have been rendered otiose and or a mere academic exercise. While the aforestated appears true, there exists a sentence and imposed fine that the Applicant must serve should his appeal fail to succeed. In George Gathura Karanja v George Gathuru Thuo & 2 Others [2019] eKLR, the Court of Appeal stated that: “ [A]n appeal/intended appeal is said to be rendered nugatory where the resulting effect is likely to be irreversible. See the case of Stanley Kangethe Kinyanjui versus Tony Ketter & 5 Others, Civil Appeal No. 31 of 2012 where this Court stated inter alia thus: “ Whether or not an appeal will be rendered nugatory depends on whether or not what is sought to be stayed if allowed to happen is irreversible, or if it is not reversible whether damages will reasonably compensate the aggrieved party.” 10. It is trite that the prerequisite of arguability of an appeal arguable appeal is not a requirement for granting stay under Order 42 Rule 6 of the CPR. That said, it must be emphasized that, should the Applicant’s license be suspended pending determination of the appeal, the consequence of the same would be irreversible, if his appeal were to succeed. Penultimately, the Applicant has reasonably demonstrated the likelihood of substantial loss should this Court decline to grant his motion however fell shy of offering security for the order of stay of execution being sought. In spite of the latter the Court is persuaded to allow Applicant’s motion dated 15.11.2024 on condition that -; a. The sum of Kshs. 100,000/- be deposited within forty-five [45] days of this ruling, to act as security for the order of stay of execution pending determination of the appeal. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/11790/eng@2025-07-31 3

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11. b. That the Applicant to file and serve its record of appeal within thirty [30] days of this ruling. c. That the appeal be heard and determined on priority basis and be disposed of within 180 days of this ruling. d. Each party to bear their own costs. Orders accordingly. DATED, SIGNED AND DELIVERED VIRTUALLY THIS 31ST DAY OF JULY 2025 LINUS P. KASSAN JUDGE In the presence of:Rotich holding brief Kitala for Applicant Wacheke for the Applicant Mulomi holding brief Ngumba for Respondent Carol – Court Assistant https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/11790/eng@2025-07-31 4

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