Kiscol & 1 other v Mwaita Hamisi Mbeta & Mwanaisha Said Mulumbo (administrators of The Estate of The Late Habari Hamisi Mbeta - Deceased) & 2 others

3. The applicants aver that being dissatisfied with the judgment of the trial court, they have filed a memorandum of appeal against the said judgment in which the trial court found the appellants, the 2nd and 3rd respondents jointly liable and awarded damages to the 1st respondent in the sum of KShs 220,000/= under the Law Reform Act and KShs 1,736,150/= under the Fatal Accidents Act together with interest and costs of the suit. 4. The grounds in support of the application as laid out on the face thereof and expounded in the supporting affidavit are that the appeal has good prospects of success; that the applicant is apprehensive that if stay of execution is not granted the respondent shall commence the process of execution of the decree leading the applicant to suffer substantial loss and irreparable harm; that the decretal amount is substantial and if it is paid over to the 1st respondent it is unlikely to be recovered. In the circumstances, if the order of stay of execution is not granted it will render the appeal nugatory. The appellants further aver that they are prepared to provide an appropriate security as a condition for stay of execution. Finally, that the 1st respondent does not stand to suffer any prejudice if the order of stay is granted. 5. The appellants have attached to the supporting affidavit the memorandum of appeal dated 21/9/2024 and filed in court on 26/9/2024. 6. The application is opposed by the 1st respondents through the replying affidavit of Mwaita Hamisi Mbeta sworn on 14/10/2024. She deposes that the decree in issue is a money decree that is quantifiable and therefore the issue of irreparable or substantial loss does not arise. 7. He deposes further that they are entitled to execute the decree. That the applicant has not shown how the appeal is likely to be rendered nugatory which allegation he totally refutes. That the applicant has not proved in any way that they will not be able to refund the decretal sum if the intended appeal is successful. In the event the decretal sum is released to them they will be able to refund the same as they will invest it. That they are persons of means as he is currently employed as a driver of a lorry earning Kshs 1000.00 per day while his co-administrator cooks and sells potatoes in Msambweni where she makes a profit of an average of Kshs 1000.00 per day to sustain themselves. 8. He deposes further that the application is only meant to deny them the enjoyment of the fruits of their judgement and this shall greatly prejudice them as they will be kept away from the use of the monies awarded to them by the court which sum is also for the benefit of the children who have been suffering since the accident occurred. 9. He deposes further that the applicant has not tendered security as the judgement entered was jointly and severally and the issue of partial proposal to tender just a portion of the security is not supported by law. 10. He deposes further that the applicant has no arguable appeal with a probability of success as the award by the court is reasonable and the holding on liability was based on evidence on record. 11. Further that the applicant has not shown any document to prove that it is undergoing any financial difficulties or that the payment of the decretal sum would cripple its business activities. That the applicant is blowing hot and cold at the same time by alleging that its business would be crippled if the decretal sum is paid and at the same time offering to tender security as may be ordered by the court including depositing the decretal sum in an interest earning account. 12. That the application has been made almost two months after the decision was made and the doctrine of laches is therefore applicable and the applicant has come to court with unclean hands. 13. The application was heard by way of written submissions. Learned counsel for the applicants and for the 1st respondent filed their respective submissions but the 2nd and 3rd Respondents did not file any https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19707/eng@2025-05-07 2

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response or submissions and did not participate in this application although Ms. Oweya was always present for them. 14. Learned counsel for the applicant submitted, setting out the principles considered by the court in an application for grant of stay pending appeal as laid out under Order 42 Rule 6(2). She submits that in exercising its discretion, the court should always opt for the lower rather than the higher risk of injustice as held in the case of Samvir Trustee Limited v Guardian Bank Limited [2007] KEHC 2438 (KLR). 15. Learned counsel submits that the applicant has met all the conditions for grant of an order of stay of execution pending appeal and supported the submissions with various authorities. 16. Learned counsel for the respondent on her part submits that the application is incompetent and does not lie and has traversed each of the grounds set down by the applicant in support of its application. She has also filed authorities to support her submissions. 17. I have considered the Notice of Motion application the grounds in support thereof, the supporting affidavit as well as the replying affidavit and the submissions by learned counsels together with the authorities cited. The issues for determination are whether the application has merit, what orders the court should issue and who bears the costs of the application. 18. Stay of execution pending appeal to the High Court is provided for under Order 42 Rule 6 of the Civil Procedure Rules 2010 as follows; 19. “ (1) No appeal or second appeal shall operate as a stay of execution or proceeding under a decree or order appealed from except 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 foregoing provision of the law, the three conditions to be fulfilled for an order of stay pending appeal to issue are; a. that substantial loss may result to the applicant unless the order is made. b. the application has been made without unreasonable delay. c. security as the court orders for the due performance. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19707/eng@2025-05-07 3

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20. These principles are enunciated in the case of Butt v Rent Restriction Tribunal [1982] KLR 417where the Court of Appeal stated what ought to be considered in determining whether to grant or refuse stay of execution pending appeal. The court said that: a. The power of the court to grant or refuse an application for a stay of execution is discretionary; and the discretion should be exercised in such a way as not to prevent an appeal. b. Secondly, 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 the appeal court reverse the judge's discretion. c. Thirdly, 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. d. Finally, the Court in exercising its discretion whether to grant or refuse an application for stay will consider the special circumstances and its unique requirements. 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 of costs as ordered will cause the order for stay of execution to lapse. 21. The High Court's jurisdiction to grant a stay of execution pending appeal under Order 42 rule 6 of the Civil Procedure Rules is circumscribed by the three conditions of, being satisfied that the application has been made without unreasonable delay, satisfaction that substantial loss may occur if the order is not granted and the furnishing of security for the due performance of the court's orders. (See the case of Vishram Ravji Halai v Thornton & Turpin Civil Application No. Nai. 15 of 1990 [1990] KLR 365). 22. It has also been held that the court, in exercising its discretion, should also opt for the lower rather than the higher risk of injustice and finally the court will also consider the overriding objective as stipulated in sections 1A and 1B of the Civil Procedure Act, which the courts are now enjoined to give effect to. (See Machira T/A Machira & Co Advocates v East African Standard (No 2) [2002] KLR 63. 23. Learned counsel for the appellant submits that the appeal by the appellant is arguable. Learned counsel for the respondent has particularly submitted extensively on the issue of whether or not the applicants have an arguable appeal. However, that is not one of the conditions for grant of stay pending appeal to the High Court. I note that most of the decisions she cited refer to grant of stay pending appeal from the High Court to the Court of Appeal under Rule 5(2)(b) of the Court of Appeal Rules. Clearly, those are not the provisions under which the present application is made. 24. The memorandum of appeal was filed within the statutory period and the present application was filed on 18/9/2024, just under two months after the judgment was rendered and some few days after the memorandum of appeal was filed on 21/8/2024. I am satisfied that the application was filed within a reasonable time. 25. On the issue of substantial loss, the applicants depose that they stand to suffer prejudice if execution is levied. The 1st respondents on their part depose that they have means and earn an income of KShs 1,000/= per day for each and so they are capable of refunding the decretal sum if need be. But as submitted by learned counsel for the applicant, they have not supported that assertion with any evidence of the said earnings such as a pay slip in the case of Mwaita Hamisi Mbeta or business records in the case of Mwanasha Said Malumbo. 26. Since there is no precise definition of what amounts to substantial loss, I believe it is for this court to determine on the facts placed before it. No doubt if an appellant who is exercising a right of appeal https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19707/eng@2025-05-07 4

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pays out a sum of money in satisfaction of a decree that is under challenge, whatever the amount, and afterwards, if it succeeds on appeal, the appellant is made to start following the same to get it back through no other means than the court process, it causes inconvenience and substantial loss. The substantial loss is not just monetary alone but also the time as well as the inconvenience of following up the same. It is one thing for the 1st respondents to depose that they have the means and another for them to tender back the money at once if and when required to. 27. I am aware that the 1st respondents have a decree in their favour and they are entitled to enjoy the fruit thereof. But the applicant also has their right to appeal. The court has to balance the interests of the applicant who is seeking 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 judgment. Balancing the two competing interests in this case, I find that the loss that would be suffered by the applicant would be substantial if the stay order is not granted. 28. However, this issue is evened out on the next requirement to be satisfied for stay of execution to issue that "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." 29. The applicants herein have stated that they are willing to deposit into a joint interest earning account opened in the names of the respective advocates a part of the decretal sum as security. However, it is upon the court to ensure that the security offered is sufficient for the due performance of such decree or order as may ultimately be binding them before the stay order is granted. Therefore, the order of stay of execution can be granted on condition that sufficient security for the due performance of the decree is taken by the court. 30. Consequently, I find that the application herein has merit and in order not to render the intended appeal nugatory, the application is granted on conditions. I have seen the conditions suggested by learned counsel for the 1st respondents through the cited case that the court may order that half of the decretal sum be paid over to the 1st respondents and the rest deposited in court. However, that case is distinguishable from the present one in the sence that here, the entire judgement on the issues of liability and quantum is challenged. That condition would be appropriate where only the issue of quantum is challenged. 31. Consequently, the application is allowed and stay of execution pending appeal is granted in the following terms: 32. a. Stay of execution of the judgment dated 24/7/2024 and ensuing decree in Kwale MCC No 47 of 2021 is granted pending hearing and determination of the intended appeal herein on condition that the applicants deposit in an interest earning account in the joint names of both advocates within the next 30 days from the date hereof. b. The record of appeal is filed within 45 days from today. c. Failure by the applicants to abide by the condition. hereinabove this application will be deemed to have been dismissed and the respondents will be at liberty to execute. d. Costs of the application will abide the Appeal Orders accordingly. DELIVERED, DATED AND SIGNED AT KWALE ON THE VIRTUAL PLATFORM, TEAMS THIS 7TH DAY OF MAY 2025. ANDAYI W. F. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19707/eng@2025-05-07 5

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JUDGE In the presence of: Baraza for applicant. Osino (Ms) for the 1st respondents. Oweyo (Ms) for the 3rd respondent. N/A for the 2nd respondent. Johnson: Court Assistant. ANDAYI W. F. JUDGE SIGNED BY/FOR: HON. JUSTICE ANDAYI W.F. KWALE HIGH COURT https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19707/eng@2025-05-07 6

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