The Appeal does not operate as a stay of execution. Even if an appeal has been lodged, and all parties served, the decree holder can proceed and apply for execution. However the judgment debtor can apply for a stay of execution on the ground that an appeal is intended or that an appeal has been filed. If no appeal has been filed but is intended the application for stay of execution should be made to the court that has given the order or the decree but an appeal has already been filed, the application for stay should be made to the appellate court.
WHEN IS AN APPEAL DEEMED TO HAVE BEEN FILED?
For the purposes of a stay of execution an appeal is deemed to have been filed as soon as the notice of appeal is filed.
under rule 13 thereof it is now the duty of the appellant to cause the appeal to be listed for direction on notice.
• Rule 13 now provides for the filing of written submissions where a party does not intend to appear at the hearing.
Application for stay of Execution
Kiambu Transporters V. Kenya Breweries
It is made by way of Notice of Motion under Order 42 Rule 6 and Section 3A of the Civil Procedure Act. (Looks like a notice of motion).
The court looks at certain conditions before granting a stay of execution. The following conditions must be satisfied before the court can grant a stay.
1. That the Application has been made without unreasonable delay.
2. That substantial loss will result to the Applicant unless such order is made.
3. Security for due performance of the decree has been given by the Applicant.