Samuel Makau Mumo & 1 other v Fmm (a Minor Suing Through Father and Next Friend Ngm)

Analysis & Determination 4. I have carefully considered the Application, Supporting Affidavit, the Respondent's Grounds of opposition, the Parties rival submissions and the only issue for determination is whether the Appellants/Applicants have met the conditions necessary for the grant of stay pending appeal. 5. Stay of execution pending appeal is governed by Order 42 Rule 6 of the Civil Procedure Rules. It is evident from the said provision that power to grant stay of execution pending appeal is an exercise of discretion of the court on sufficient cause being shown by the applicant that substantial loss may result to the applicant if the orders are denied; the application should be made without undue delay and the court will impose such security as the court may impose for the due performance of any decree or order as may ultimately be binding on the Applicant (see Butt Vs Rent Restriction Tribunal (1982) KLR 417 and James Wangalwa & Another Vs Agnes Nalika Chereto (2012)eKLR) 6. The case of Masis Mwita vs Damris Wanjiku Njeri (2016)eKLR provided the guiding principles which the court should consider while determining an application of this nature. These were; (a) The power of the court to grant or refuse an application for stay of execution is a discretionary power. The discretion should be exercised in such a way as not to prevent an appeal. (b) 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 to be rendered nugatory should that appeal court reverse the judge's discretion. (c) A judge should not refuse 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. (d) The court in exercising the discretion whether to grant (or) refuse an application for stay will consider the special circumstances of the cases and unique requirements. 7. On the first criterion as set out in Order 42 Rule 6 (2) i.e. Whether Applicant/Appellant has brought this application without unreasonable delay. The decision as against which this appeal has been filed was delivered on 14th November 2023 and this appeal was lodged before this court on 13th December 2023, the application for stay of execution before the lower court was filed on 14th December 2023. That application was later withdrawn suo moto on 12th February, 2024 and the file was forwarded to this court for purposes of the appeal The instant application was filed on 26th March 2024 which was about a month after the withdrawal of the lower court application. This court is of the view that the application was made without undue delay. 8. The second criterion is whether the Applicants/Appellants have demonstrated that they are bound to suffer substantial loss if orders of stay of execution are not granted. The question that follows is what comprises substantial loss. In Silverstein Vs Chesoni (2002)1 KLR 867 it was held that “ The issue of substantial loss is the cornerstone of both jurisdictions. Substantial loss is what has to be prevented by preserving the status quo because such loss would render the Appeal nugatory” 9. The applicants submitted that they stand to suffer loss if the application is denied for the reason that the decretal amount is huge and further that the respondent has not demonstrated he will be in a position to refund the amount should the appeal be determined in the applicants’ favour. 10. The third criterion is that the Applicants/Appellants must furnish security for the due performance of the decree. I am fully aware that the court has a delicate task of balancing the interests of both https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/14749/eng@2025-02-05 2

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the Appellants and the Respondent. The Appellant who seeks to preserve the status quo pending the hearing of the Appeal so that his Appeal is not rendered nugatory and the interest of the Respondent who is seeking to enjoy the fruits of his judgement. It is true that under Order 42 rule 6 aforesaid, the Applicant is required to offer security for the due performance of the decree and the Court is entitled to take into account the fact that no such security has been offered in deciding an application thereunder. I agree with the position in Mwaura Karuga t/a Limit Enterprises vs. Kenya Bus Services Ltd & 4 Others [2015] eKLR, where it was held that: “ … the security must be one which shall achieve due performance of the decree which might ultimately be binding on the applicant. The rule does not, therefore, envisage just any security. The words ‘’ultimately be binding’ are deliberately used and are useful here, for they refer to the entire decree as will be payable at the time the appeal is lost. That is the presumption of law here. Therefore, the ultimate decree envisaged under order 42 rule 6 (2) (b) of the Civil Procedure Rules includes costs and interest on the judgment sum unless the latter two were not granted-which is seldom. The security to be given is measured on that yardstick.” 11. I also associate myself with the holding in Gianfranco Manenthi & another vs. Africa Merchant Assurance Company Ltd [2019] eKLR, where the court observed: “ … the applicant must show and meet the condition of payment of security for due performance of the decree. Under this condition a party who seeks the right of appeal from money decree of the lower court for an order of stay must satisfy this condition on security. In this regard, the security for due performance of the decree under order 42 rule 6(1) of the Civil Procedure Rules, it is trite that the winner of litigation should not be denied the opportunity to execute the degree in order to enjoy the fruits of his judgment in case the appeal fails. Further, Order 42 should be seen from the point of view that a debt is already owed and due for payment to the successful litigant in a litigation before a court which has delivered the matter in his favour. This is therefore to provide a situation for the court that if the appellant fails to succeed on appeal there could be no return to status quo on the part of the plaintiff to initiate execution proceedings where the judgement involves a money decree. The court would order for the release of the deposited decretal amount to the respondent in the appeal … This the objective of the legal provisions on security was never intended to fetter the right of appeal. It was also put in place to ensure that courts do not assist litigants to delay execution of decrees through filing vexatious and frivolous appeals. In any event, the issue of deposit of security for due performance of decree is not a matter of willingness by the applicant but for the court to determine.” 12. The law is that where the applicant intends to exercise its undoubted right of appeal, and in the event, it were eventually to succeed it should not be faced with a situation in which it would find itself unable to get back its money. Likewise, the Respondent who has a decree in his favour should not, if the applicant were eventually to be unsuccessful in its intended appeal, find it difficult or impossible to realize the decree. This is the cornerstone of the requirement for security. The issue of adequacy of security was dealt with by the Court of Appeal in Nduhiu Gitahi vs. Warugongo [1988] KLR 621; 1 KAR 100; [1988-92] 2 KAR 100 where the Court of Appeal expressed itself as follows: “ The process of giving security is one, which arises constantly. So long as the opposite party can be adequately protected, it is right and proper that security should be given in a way, https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/14749/eng@2025-02-05 3

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which is least disadvantageous to the party giving the security. It may take many forms. Bank guarantee and payment into court are but two of them. So long as it is adequate, then the form of it is a matter, which is immaterial. In an application for stay pending appeal the court is faced with a situation where judgement has been given. It is subject to appeal. It may be affirmed or it may be set aside. The court is concerned with preserving the rights of both parties pending that appeal. It is not the function of the court to disadvantage the defendant while giving no legitimate advantage to the plaintiffs. It is the duty of the court to hold the ring even-handedly without prejudicing the issue pending the appeal. For that purpose, it matters not whether the plaintiffs are secured in one way rather than another. It would be easier for the defendants or if for any reason they would prefer to provide security by a bank guarantee rather than cash. There is absolutely no reason in principle why they should not do so. The aim of the court in this case was to make sure, in an even-handed manner, that the appeal would not be prejudiced and that the decretal sum would be available if required. The respondent is not entitled, for instance, to make life difficult for the applicant, so as to tempt him into settling the appeal. Nor will either party lose if the sum is actually paid with interest at court rates. Indeed, in this case there is less need to protect the defendant because nearly half the sum will have been paid and the balance was at one stage open to negotiation to reduce it”. 13. As regards security for costs, the applicants have stated that they are ready and willing to furnish such reasonable security for the due performance of the decree and that the applicants’ insurance company Old Mutual (formerly UAP) General Insurance Co. Kenya Ltd is an ongoing concern with ability to settle the judgment upon hearing and determination of the appeal. 14. This Court takes note of the fact that in as much as the applicants are desirous to furnish security for costs as stated above, the court further takes notes that the deponent of the supporting affidavit is not a party to these proceedings and has not placed before court any evidence of the Insurance relationship with the applicants or of its ability to settle the decree in the end. This court finds the proposed security for costs is not suitable in this present case and is likely to pose hindrance at the time of enforcement. 15. The respondent stated that he wished to wholly rely on the grounds on opposition except to add that no good and convincing reason has been given by the applicants to warrant the orders sought. The respondent stated that in the unlikely event the application is allowed, the applicants should be orders to pay the respondent half of the amount and the remaining half be deposited in court. 16. Accordingly, I hereby allow the Applicants/Appellant’s application dated 26th March 2024 and grant stay of execution of the Judgment issued in Kangundo CMCC No. E167 of 2021 on 14th November 2023 pending the hearing and determination of the appeal on the following conditions: 17. a. The Appellants/ Applicants shall deposit the entire decretal sum into an interest earning account in a reputable commercial Bank, to be held by both advocates for the Parties to this appeal, within Forty-Five (45) days of this ruling; b. The Appellants shall file and serve a record of appeal within Forty-Five (45) days of this ruling considering the lower court typed proceedings are in the file before this court; c. Costs shall be in the cause; d. A mention date to be fixed for further directions on the appeal. It is so ordered. RULING WRITTEN, SIGNED & DATED AT MACHAKOS THIS 5TH DAY OF FEBRUARY 2025. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/14749/eng@2025-02-05 4

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NOEL I. ADAGI JUDGE DELIVERED VIRTUALLY ON TEAMS AT MACHAKOS THIS 5TH DAY OF FEBRUARY 2025. NOEL I. ADAGI JUDGE https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/14749/eng@2025-02-05 5

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