[2022] KEHC 2047 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT HOMA BAY

CIVIL APPEAL NO.23 OF 2020

BETWEEN

JOHNSON OTIENO ODERO........................................................APPELLANT/RESPONDENT

AND

SOUTH NYANZA SUGAR COMPANY LIMITED.....................RESPONDENT/APPLICANT

RULING

1. The appellant/applicant moved the court by way of Notice of Motion dated 6th September, 2021. The application is brought under sections 1, 1A, 3, 3A, 64(e) and 66 of the Civil Procedure Act, Order 42 Rule 6 (1), (2) & (5) Civil Procedure Rules & Articles 40, 48 & 159 (2) of the Constitution of Kenya, The applicant is seeking an order for stay of execution pending the hearing and determination of an intended appeal in the Court of Appeal.

2. The application is premised on fifteen grounds which can be summarized as follows:

a) That the respondent was aggrieved by the judgment of this court.

b) That the applicant has served the notice of appeal.

c) That the applicant would suffer irreparable loss should the appeal succeed for the respondent will not be in a position to refund the decretal sum.

3. The application was opposed on the following grounds:

a) That there is no legal point the applicant is seeking to argue before the Court of Appeal.

b) That the applicant has not demonstrated that the decision of this court delivered on 21st July, 2021 failed to determine some material issue of law.

c)That the applicant has failed to demonstrate that the decision of this court delivered on 21st July, 2021 failed to determine some usage having force of law in Kenya.

d) That the applicant has failed to demonstrate that decision of this court delivered on 21st July, 2021 has a substantial error or defect in the procedure provided by the Civil Procedure Act or by any other law

4. It is trite law that an appeal does not operate as a stay for execution. Order 42 Rule 6 of the Civil Procedure Rules states as follows:

(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.

5. In the case of RWW vs. EKW[2019] eKLR, the court while addressing its mind to the purpose of a stay of execution order pending appeal, stated:

The purpose of an application for stay of execution pending an appeal is to preserve the subject matter in dispute so that the rights of the appellant who is exercising the undoubted right of appeal are safeguarded and the appeal if successful, is not rendered nugatory. However, in doing so, the court should weigh this right against the success of a litigant who should not be deprived of the fruits of his/her judgment. The court is also called upon to ensure that no party suffers prejudice that cannot be compensated by an award of costs.

6. I cannot be in a position to address the issues raised herein for that is the preserve of the Court of Appeal.

7. Since an order for stay of execution is to ensure that no party is prejudiced, I make the following order:

The applicant to deposit the decretal amount together with cost in an interest earning Bank account in the names of both Counsel on record for the parties within 30 days. The applicant in addition to file the record of appeal within 30 days. Failure to comply, then the respondent will be at liberty to commence execution.

DELIVEREDandSIGNEDatHOMA BAYthis1st day of March, 2022

KIARIE WAWERU KIARIE

JUDGE