Civil Appellate Division v Fujax East Africa Limited & 1 other

appeal nugatory. He further urges the Court to preserve the subject matter pending the determination of the appeal. In his written submissions, the Appellant expresses his willingness to abide by any conditions that the Court may impose as security for the due performance of the decree. 4. The application is opposed by both Respondents through their respective replying affidavits and written submissions. Their common position is that the Applicant has failed to satisfy the conditions stipulated under Order 42 Rule 6 of the Civil Procedure Rules as he has neither demonstrated the substantial loss that he stands to suffer nor offered adequate security for the due performance of the decree. They submit that execution is a lawful process and that they are entitled to enjoy the fruits of their judgment. 5. I have carefully considered the application, the rival affidavits, the submissions by counsel and the authorities cited. 6. The principles governing applications for stay of execution pending appeal are well settled under Order 42 Rule 6(2) of the Civil Procedure Rules. Under the said provision, an applicant must demonstrate that substantial loss may result unless stay is granted, that the application has been made without unreasonable delay and that he is willing to furnish such security as the Court may order for the due performance of the decree. These principles were succinctly stated in Butt vs. Rent Restriction Tribunal 2

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[1982] KLR 417 and have been consistently applied by our courts. 7. It is not disputed that the impugned judgment was delivered on 21st October 2025 while the present application was filed on 11th November 2025. In my view, the application was brought without undue delay. 8. Although the Appellant has not placed before the Court cogent evidence of the substantial loss that he stands to suffer, the Court must also bear in mind that the purpose of an order for stay is to preserve the subject matter of litigation so that an appeal, if successful, is not rendered nugatory. At the same time, the Court must balance that objective against the Respondents' undoubted right to enjoy the fruits of their judgment. 9. In RWW vs. EKW [2019] eKLR the Court of Appeal observed that in determining an application for stay, the Court should balance the interests of both parties so that neither party suffers prejudice that cannot be compensated by an award of costs. I am persuaded that the justice of this case lies in granting a conditional stay that adequately secures the Respondents' decree while preserving the Appellant's right of appeal. 10. Accordingly, I allow the application on the following conditions: a) There shall be a stay of execution of the judgment and decree delivered on 21st October 2025 pending the hearing and determination of the appeal. b) The stay is conditional upon the Appellant depositing the entire decretal sum, together 3

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with any accrued interest, in a joint interestearning account in the names of the advocates for the Appellant and the Respondents in a reputable commercial bank within forty-five (45) days from the date of this ruling. c) In default of compliance with Order (b) above within the stipulated period, the stay granted herein shall automatically lapse without the necessity of any further order of the Court. d) Costs of the application shall abide the outcome of the appeal. It is so ordered. DATED, SIGNED AND DELIVERED VIRTUALLY THIS 30TH DAY OF JULY 2026 HON W A OKWANY JUDGE 4

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