[2022] KEHC 10520 (KLR)

South Nyanza Teachers Savings & Credit Co-operative Society Ltd v Maseno University (Civil Appeal E105 of 2021) [2022] KEHC 10520 (KLR) (16 June 2022) (Ruling)

Neutral citation: [2022] KEHC 10520 (KLR)

Republic of Kenya

In the High Court at Homa Bay

Civil Appeal E105 of 2021

KW Kiarie, J

June 16, 2022

Between

South Nyanza Teachers Savings & Credit Co-operative Society Ltd

Applicant

and

Maseno University

Respondent

Ruling

1. The appellant/applicant moved the court by way of notice of motion dated November 3, 2021. It was brought under section 3A. 3B of the Civil Procedure Act & order 42 rule 6 (6) and order 50 rule 1 and 2 of the Civil Procedure Rules. She is seeking the following orders:a.That this application be certified urgent and interim orders be granted ex parte in the first instance. [Spent]b.That this court orders a stay of execution of the subordinate court’s decree on terms that the court shall impose pending the hearing and determination of this appeal.c.That costs of this application be provided for.

2. The application was premised on the following grounds:a.That the judgment was delivered in the absence of the parties and it took time for the applicant to get a copy.b.That the applicant has raised a substantial issue of jurisdiction to the subordinate court and is likely to suffer irreparably should this court make a finding that the court below did not have jurisdiction over the subject matter.c.That the applicant is ready to and willing to deposit security for costs in the sum of Kshs 50, 000. 00 as a pre-condition for stay pending appeal.

3. The respondent opposed the application on the following grounds:a.That the applicant has not satisfied conditions for granting a stay of execution.b.That the applicant has not been filed timeously.

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. The court has a duty to balance between the interests of both parties so that ends of justice can be realized. 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. From the foregoing, I make the following order:The applicant to deposit the decretal amount together with the agreed cost in an interest earning Bank account in the names of both counsel on record for the parties within 15 days of this ruling. Failure to comply, then the respondent will be at liberty to commence execution.

7. Costs of this application to abide with the outcome of the appeal.

DELIVERED AND SIGNED AT HOMA BAY THIS 16TH DAY OF JUNE, 2022KIARIE WAWERU KIARIEJUDGE.