:
Background
1. Before this Court is the Appellant’s Notice of Motion dated 30th September 2025 seeking stay of execution pending appeal against the decree arising from the judgment delivered on 16th September 2025 in Mombasa SCCCOMM E812 OF 2025 – Douglas Mwangi Muteru v Aden Muhammed Hussein .
2. The Appellant seeks:
i. Stay of execution pending determination of the appeal;ii. An order that the Respondent deposits the decretal sum of Kshs. 691,000 as security; andiii. Costs of the application.
3. The application is supported by an affidavit sworn by the Appellant. The Respondent did not file a replying affidavit but filed written submissions. The Court has considered the application and rival submissions.
Issue for Determination
4. The sole issue is whether the Appellant has satisfied the conditions for grant of stay of execution under Order 42 Rule 6 of the Civil Procedure Rules .
Applicable Principles
5. The principles governing stay of execution are settled. An applicant must demonstrate:
a. That substantial loss may result unless stay is granted;
b. That the application has been made without unreasonable delay;
and
c. That security for the due performance of the decree has been offered as the Court may order.
6. The jurisdiction is discretionary but must be exercised judicially and on established principles.
7. The Court of Appeal in Mukuma v Abuoga (1988) KLR 645 emphasized that substantial loss is the cornerstone of the jurisdiction for stay, as it is the prejudice that must be prevented to ensure the appeal is not rendered nugatory.
8. It is equally settled that the mere existence of execution proceedings does not, in itself, constitute substantial loss. In James Wangalwa & Another v Agnes Naliaka Cheseto [2012] KEHC 1094 (KLR) , the Court held that execution is a lawful process and cannot alone justify stay.
9. However, where an applicant raises a credible apprehension that a respondent may be unable to refund the decretal sum, the evidential burden may shift to the respondent. This position was articulated in National Industrial Credit Bank Ltd v Aquinas Francis Wasike & Another [2006] KECA 333 (KLR) .
10. Further, as stated in Konchellah v Sunkuli & 2 others [2018] KESC 58 (KLR) , even in the absence of opposition, the Court must still satisfy itself that the application is meritorious.
Analysis
11. The decree herein is purely monetary in nature. Ordinarily, monetary decrees are capable of restitution in the event an appeal succeeds. The Appellant bears the initial burden of demonstrating substantial loss.
12. The Appellant contends that the Respondent may be unable to refund the decretal sum should the appeal succeed. While no replying affidavit was filed to controvert this assertion, the Court must still evaluate whether a prima facie basis for stay has been established.
13. Given that the Respondent did not place evidence before the Court to demonstrate financial capacity to satisfy a refund if required, and in light of the principles in National Industrial Credit Bank Ltd v Wasike (supra) , the Court finds that the apprehension expressed by the Appellant is not unreasonable in the circumstances.
14. The application was filed without undue delay, and the decretal sum is specific and ascertainable. The Court is therefore satisfied that the threshold for stay has been met, subject to appropriate security.
Security
15. Security is a mandatory requirement under Order 42 Rule 6. The purpose of security is to balance the rights of both parties and ensure that the successful party is not prejudiced by the grant of stay.
16. In the interests of justice, the Court considers it appropriate that the entire decretal sum be deposited in Court as security pending determination of the appeal.
Disposition
17. Consequently, the Court makes the following orders:
18. An order of stay of execution is hereby granted against the Decree issued in Mombasa SCCCOMM E812 OF 2025 – Douglas Mwangi Muteru v Aden Muhammed Hussein , pending hearing and determination of the appeal.
19. The Appellant shall deposit the full decretal sum of Kshs. 691,000 in Court within thirty (30) days from the date hereof as security for the due performance of the decree.
20. In default of compliance with Order (2), the stay herein granted shall automatically lapse without further reference to the Court.
21. Costs of the application shall abide the outcome of the appeal.
DATED, SIGNED AND DELIVERED AT MOMBASA THIS …28TH… DAY OF MAY…… 2026.
HON. LADY JUSTICE W. K. MICHENI
JUDGE
In the presence of: Court Assistant: __________________Parties/Advocates: __________________
Background
1. Before this Court is the Appellant’s Notice of Motion dated 30th September 2025 seeking stay of execution pending appeal against the decree arising from the judgment delivered on 16th September 2025 in Mombasa SCCCOMM E812 OF 2025 – Douglas Mwangi Muteru v Aden Muhammed Hussein .
2. The Appellant seeks:
i. Stay of execution pending determination of the appeal;ii. An order that the Respondent deposits the decretal sum of Kshs. 691,000 as security; andiii. Costs of the application.
3. The application is supported by an affidavit sworn by the Appellant. The Respondent did not file a replying affidavit but filed written submissions. The Court has considered the application and rival submissions.
Issue for Determination
4. The sole issue is whether the Appellant has satisfied the conditions for grant of stay of execution under Order 42 Rule 6 of the Civil Procedure Rules .
Applicable Principles
5. The principles governing stay of execution are settled. An applicant must demonstrate:
a. That substantial loss may result unless stay is granted;
b. That the application has been made without unreasonable delay;
and
c. That security for the due performance of the decree has been offered as the Court may order.
6. The jurisdiction is discretionary but must be exercised judicially and on established principles.
7. The Court of Appeal in Mukuma v Abuoga (1988) KLR 645 emphasized that substantial loss is the cornerstone of the jurisdiction for stay, as it is the prejudice that must be prevented to ensure the appeal is not rendered nugatory.
8. It is equally settled that the mere existence of execution proceedings does not, in itself, constitute substantial loss. In James Wangalwa & Another v Agnes Naliaka Cheseto [2012] KEHC 1094 (KLR) , the Court held that execution is a lawful process and cannot alone justify stay.
9. However, where an applicant raises a credible apprehension that a respondent may be unable to refund the decretal sum, the evidential burden may shift to the respondent. This position was articulated in National Industrial Credit Bank Ltd v Aquinas Francis Wasike & Another [2006] KECA 333 (KLR) .
10. Further, as stated in Konchellah v Sunkuli & 2 others [2018] KESC 58 (KLR) , even in the absence of opposition, the Court must still satisfy itself that the application is meritorious.
Analysis
11. The decree herein is purely monetary in nature. Ordinarily, monetary decrees are capable of restitution in the event an appeal succeeds. The Appellant bears the initial burden of demonstrating substantial loss.
12. The Appellant contends that the Respondent may be unable to refund the decretal sum should the appeal succeed. While no replying affidavit was filed to controvert this assertion, the Court must still evaluate whether a prima facie basis for stay has been established.
13. Given that the Respondent did not place evidence before the Court to demonstrate financial capacity to satisfy a refund if required, and in light of the principles in National Industrial Credit Bank Ltd v Wasike (supra) , the Court finds that the apprehension expressed by the Appellant is not unreasonable in the circumstances.
14. The application was filed without undue delay, and the decretal sum is specific and ascertainable. The Court is therefore satisfied that the threshold for stay has been met, subject to appropriate security.
Security
15. Security is a mandatory requirement under Order 42 Rule 6. The purpose of security is to balance the rights of both parties and ensure that the successful party is not prejudiced by the grant of stay.
16. In the interests of justice, the Court considers it appropriate that the entire decretal sum be deposited in Court as security pending determination of the appeal.
Disposition
17. Consequently, the Court makes the following orders:
18. An order of stay of execution is hereby granted against the Decree issued in Mombasa SCCCOMM E812 OF 2025 – Douglas Mwangi Muteru v Aden Muhammed Hussein , pending hearing and determination of the appeal.
19. The Appellant shall deposit the full decretal sum of Kshs. 691,000 in Court within thirty (30) days from the date hereof as security for the due performance of the decree.
20. In default of compliance with Order (2), the stay herein granted shall automatically lapse without further reference to the Court.
21. Costs of the application shall abide the outcome of the appeal.
DATED, SIGNED AND DELIVERED AT MOMBASA THIS …28TH… DAY OF MAY…… 2026.
HON. LADY JUSTICE W. K. MICHENI
JUDGE
In the presence of: Court Assistant: __________________Parties/Advocates: __________________