STEPHEN GESAIGA & SILVANUS OROO OMBOGA v E.A. PORTLAND CEMENT CO. LTD [2009] KEHC 2532 (KLR)

REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NAIROBI (NAIROBI LAW COURTS) Civil Appeal 788 of 2007

STEPHEN GESAIGA

SILVANUS OROO OMBOGA……………...….APPELLANTS

VERSUS

E.A. PORTLAND CEMENT CO. LTD….……RESPONDENT

R U L I N G

1.    Stephen Gesaiga and Silvanus Oroo Omboga hereinafter      referred to as the Applicants are the appellants in this appeal.  By a Notice of Motion dated 23/2/09, the Applicants seeks an    order for stay of execution of the judgment and decree   pending determination of their appeal.

2.    The Applicants maintain that unless the order of stay of execution is granted, their appeal which has high chances of       success will be rendered nugatory.

3.    Silvanus Oroo Omboga has also sworn a supporting affidavit in which he explains that if execution proceeds he would       suffer irreparable loss as his only source of livelihood will be       disposed off.

4.    The application is opposed through grounds of opposition     filed on 22nd April 2009 as well as a replying affidavit sworn    by Eric Chelule on the same day.  Chelule who is a licensing     and Insurance Officer of East Africa Portland Cement Co.       Ltd., (the Respondent herein) maintains that the Respondent   is a big company listed in the stock market and is capable of    paying back the decretal sum incase the appeal succeed.

5.    It is submitted on behalf of the Respondent that the      Applicants have offered no security for the performance of      the decree and have also failed to demonstrate substantial       loss.  Further it is contended that the application for stay of       execution pending appeal having been brought more than one       year after the appeal, the same was brought after      unreasonable delay.

6.    I have carefully considered the application before me.  For     the Applicants to succeed, they must satisfy the conditions of   OXLI Rule 4(2) of the Civil Procedure Rules i.e (1) The      Applicant must show that they will suffer substantial loss if    the order of stay of execution is not granted (2) Application       must have been brought without undue delay (3) Applicants     must be ready to furnish security for the due performance of   the decree.

7.    In this case, the Applicant claims that they will suffer    substantial loss as their appeal is likely to be rendered     nugatory.  However the Applicants appeal cannot be rendered   nugatory by the mere execution of the decree.  The Applicant has not shown that the Respondents will not be able to      restitute the decretal sum should that become necessary.

8.    Further although the Applicants have endeavoured to explain the apparent delay in filing their application that explanation    is not satisfactory at all.  Nothing has been exhibited to this       court to show when the Applicants instructed their advocate   to file the application for stay of execution in this court nor      has there been any evidence of any efforts made by the     Applicants to know the outcome of such an application.  It is      evident that the Applicants went to sleep after filing their       appeal and only woke up when the Respondent initiated the   execution proceedings.

9.    For the above reasons I find no merit in the Notice of Motion dated 23rd February 2009 and do therefore dismiss the same      with costs.

Delivered and dated at Nairobi this  19th day of June, 2009

H. M. OKWENGU

JUDGE

Delivered in the presence of:-

Nyabicho for the appellants

Kariuki H/B for the respondent

Erick – court clerk