Kenya Broadcasting Corporation & 2 others v Paul Oganga Ogada

6. That the costs of this application be in the cause. 2. The matter was before me on 17th July, 2025 and 24th July, 2025 and on both days the parties expressly intimated to the court That the only issue That was outstanding was for the court to determine the amount of security That is to be deposited or furnished as a condition for granting stay of execution pending appeal. 3. From their positions, I understand the parties to mean That they were in consensus That stay of execution be granted on condition That security be deposited or furnished but were unable to agree on the nature of security and left the issue to the court for determination. 4. Thus then, the issue That I will proceed to determine is the nature and/or amount of security That the Appellants should furnish as a condition for granting stay of execution pending appeal and the period within which the same is to be furnished. 5. The Appellants relied entirely on the affidavit in support of the motion and the brief oral submissions. The Appellants proffer the position That they are willing to abide by the conditions That the court may set regarding the security for the performance of the decree. They state That they are ready and willing to deposit as security for the performance of the decree, the amount of Ksh.250,000/-. 6. On his part, the Respondent relied on the grounds of opposition dated 25th June, 2025 and the oral submissions and is of the position That the entire decretal amount should be deposited and/or furnished by the Appellants as security for the performance of the decree. 7. The provision of the law That is applicable in an application for stay pending appeal is Order 42 Rule 6 of the Civil Procedure Rules. Let us read the said provision: 42(6) (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. (3). Notwithstanding anything contained in subrule (2), the court shall have power, without formal application made, to order upon such terms as it may deem fit, a stay of execution pending the hearing of a formal application. (4). ……………………………… https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/13904/eng@2025-09-18 2

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(5). An application for stay of execution may be made informally immediately following the delivery of judgment or ruling. (6). Notwithstanding anything contained in subrule (1) of this rule the High Court shall have power in the exercise of its appellate jurisdiction to grant a temporary injunction on such terms as it thinks just provided the procedure for instituting an appeal from a subordinate court or tribunal has been complied with. (Underlined emphasis). 8. Regarding security, the above provision is clear, in my understanding, That the security That is required to be furnished is That That shall in the court’s opinion be sufficient for the due performance of such decree or order as may ultimately be binding upon the Applicant. 9. As there is already a decree, the same can be the basis upon which the court can determine and set the nature of the security. The court however retains the ultimate discretion in determining the issue. 10. Judgement in the matter before the trial court was entered against the Appellants for the aggregate liquidated amount of Ksh.3,500,000/- together with other injunctive reliefs plus costs. The Appellants have not explained the basis upon which they offer to deposit only Ksh.250,000/, which in the circumstances, in my view, will not be sufficient security for the performance of the decree, should the appeal fail. 11. To That then, as the judgement is clear on the amount awarded to the Respondent, the orders That commend the motion are as follows: 12. a. An order of stay of execution of the judgement and decree issued in Kisumu CMCC No. 174 of 2020 is hereby issued pending the hearing and determination of the instant appeal on the condition That the Appellants (the Applicants in the application) deposit the amount of Ksh.3,500,000/- in a joint interest earning account held with a reputable bank domiciled in or with a branch within Kisumu County, within 30 days from the date hereof. b. That subject to compliance with (a) above, the costs of the application shall abide the outcome of the appeal. c. That in the event of default of any terms in (a) above, the order for stay of execution issued herein shall automatically stand vacated and the application shall be deemed to have been dismissed with costs of Ksh.3,000/- effective the date of this ruling. This appeal will be mentioned on 12th November, 2025 for directions. DELIVERED (VIRTUALLY), DATED & SIGNED THIS 18TH DAY OF SEPTEMBER, 2025. JOE M. OMIDO JUDGE For Appellants: Ms. Oriedo. For Respondent: Mr. Onsongo. Court Assistant: Mr. Ngoge. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/13904/eng@2025-09-18 3

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