ENIKON (T) LTD VS ENIKON CONSTRUCTION CYPRUS LTD, Civil Application No 452 Of 2022.

This case talks abouts conditions for stay of execution in court of appeals the court had this to say:

In terms of rule 11(2) and (5) of the Court Rules, if a party is to succeed in an application for stay of execution of this nature, he has to satisfy all the conditions set out. The said rule provides thus:

“no order for stay o f execution shall be made under this rule unless the Court is satisfied: –

(i) That substantial loss may result to the party applying for stay o f execution unless the order is made.

(ii) That security has been given by the applicant for the due performance o f such decree or order as may ultimately

be binding upon them.”

The process of giving security is one, which arises constantiy. So long as the opposite party can be adequateiy protected, it is right and proper that

security should be given in a way, which is least disadvantageous to the p a rty g ivin g the security, It may take many forms. Bank

guarantee and payment into court are, but two of them ….”(Emphasis added).

We have maintained the reasoning above, as we find it to be a just  approach for it strikes a balance of convenience on the parties to the 

instant application.

We also note that, granting an staying execution is a two-way traffic exercise, much as, by so doing the Court demonstrates a double coincidence of wants: One, the applicant is assured of a constitutional 

right to appeal, exhausting the judicial vertical hierarchy, without fears of being preempted by the execution, two; the applicants’ firm undertaking to give security for the due performance of the decree is an assurance to  the respondent in the end to get out of the Court not empty handed, if 

the applicants’ appeal fails. Equally, we note that, if a combination of the two guidelines above safeguards the interest of the case, which we find to be an overriding objective, so much the better.

Moreover, we are aware of yet another mandatory requirement to append copies of the documents, to make an application of this nature competent, as stipulated under rule 11(7) of the Rules. That Rule reads 

as follows:

“An application for stay o f execution shall be

accompanied by copies o f the following;

a) a notice o f appeal;

b) a decree or order appealed from;

c) a judgment or ruling appealed from; and

d) a notice o f the intended execution.

We have noted that, the applicants have attached all the copies listed in the preceding quotation. For more clarity, the copies are 

Annexures ISON-3, ISON-1, and -2 to the supporting affidavit. We reiterate that, in terms of competence and merits, the filling of, and the application itself have met the threshold conditions cumulatively.

In conclusion, the application is hereby granted.