John has recently lost a court case and has been ordered to pay Kshs. 5 million to Mary within 30 days. John believes the judgment was wrong and files an appeal. Before the appeal is heard, Mary begins the process of attaching John’s bank accounts and property to recover the money. Fearing that execution will proceed before his appeal is determined, John applies to the court for a stay of execution to temporarily stop enforcement of the judgment until the appeal is heard and decided. He has raised several issues for clarification, including:
- Is stay automatic after pronouncement of a judgement?
No, a stay of execution is not automatic. It is not granted as a matter of right but is a discretionary remedy granted only when sufficient cause is shown. The court must balance the successful party’s right to enjoy the fruits of their judgment against preserving the appellant’s right to appeal.
- How long does stay last?
A stay of execution usually remains in force until the appeal is heard and determined. However, the court may attach conditions, and if those conditions are not met within the required timeline, the stay automatically lapses.
- What does security for performance mean and when is it required?
Security for performance refers to security furnished to assure the court that the successful party will be able to recover the decretal amount if the appeal fails. The court requires the provision of such security as a condition before granting an order of stay of execution.
- What form does security take, and does it have to be paid all at once?
Security for performance may be furnished in various forms, as long as it is adequate. Common forms include:
- Depositing money in court;
- Depositing money in a joint interest-earning account operated by the advocates for both parties;
- Providing a bank guarantee from a reputable financial institution; or
- Offering other acceptable security, such as a bond or property.
The security for a stay of execution does not necessarily have to be paid all at once as long as the entire amount is provided within the duration of the stay. The court has the discretion to impose terms that adequately secure the decree.
- What happens when you do not furnish the security on time?
If you fail to provide the security within the specified timeframe, the stay is lifted, and the successful party is at liberty to execute the decree. In one case, that if the applicant failed to deposit the required security, which was a banker’s bond, within thirty days, the respondent would be at liberty to execute the decree.
- Can the timelines for a stay of execution be extended?
Yes. The extension of a stay of execution is discretionary and depends on the circumstances of each case. In one instance, the court extended the stay of execution for a further 90 days after enlarging time to file the appeal, having found that the delay was caused by factors beyond the applicant’s control.
- What happens to the security if the appeal is dismissed?
When an appeal is dismissed, the security provided for a stay of execution is used to satisfy the original decree.
Even where the full decretal sum is deposited in court or in a joint account as security, the successful party is not entitled to utilize those funds until the appeal is finally determined in their favor.
- Is there a time limit to seeking stay?
While the law does not prescribe a specific period within which a stay must be sought, it strictly requires that an application for stay be made without unreasonable delay. Ideally, the application should be filed promptly upon lodging the appeal or the relevant application within the prescribed timelines. Any delay must be reasonably explained and supported with good and sufficient cause.
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