I have parted ways with my two brothers Mmilla and Mwangesi,
JJA. They are of the view that in an application for stay of execution, an
encumbered property which secured a loan the subject of the dispute, whose
value is superior to the decretal amount can be good security for the due
performance of the decree or order as may ultimately be binding upon an
applicant in case he loses in an appeal on which the application for stay is
pegged. I, with the greatest respect, am of a different view hence this ruling
in dissent. My stance is: an encumbered property, however much it may be
superior in value to the decretal sum on which it is to stand as security,
cannot stand as good security for the due performance of the decree in an
application for stay of execution. The rest of this Ruling demonstrates why I
parted ways with my brothers. The material background facts of this application
have been meticulously set out in the majority ruling of the Court which I have
had the advantage of reading in draft. I shall therefore not restate them here.