Background and Introduction
1. The application dated 23rd June 2025 was filed by the 1st Defendant, and seeks a temporary stay of execution of the Judgment delivered on 23rd May 2025 pending the hearing and determination of its Appeal. The application is supported by the affidavit sworn on even date by Florence Njuguna, the Bank’s Head of Litigation. It is opposed by way of a Replying Affidavit sworn by Aggrey Peter Thande, the Plaintiff. I have also considered the respective written submissions filed by the parties.
Analysis and Determination
2. Order 42 Rule 6 of the Civil Procedure Rules sets out the legal framework under which a party may seek a stay of execution of a decree or judgment pending appeal. The Rule makes clear that the filing of an appeal does not, of itself, operate as a stay of execution. Nonetheless, the Court retains discretion to grant a stay where sufficient cause is shown.
3. For a party to succeed, three conditions must be satisfied. First, the applicant must demonstrate that substantial loss is likely to be suffered if the order for stay is not granted. Second, the application must be made without unreasonable delay. Third, the applicant must provide security for the due performance of the decree or order that may ultimately be binding upon them.
4. Accordingly, the purpose of the Rule is to strike a balance between two competing interests: on the one hand, safeguarding the right of an appellant to pursue an appeal without the risk of the judgment being executed prematurely; and on the other, protecting the right of the successful party to enjoy the fruits of their judgment. This rationale was aptly stated in RWW v EKW [2019] eKLR.
5. Applying these principles to the present matter, I note that the impugned judgment was delivered on 23rd May 2025 while the application for stay is dated the 23rd of June 2025. That is about one month after the delivery of the judgement. I do not consider this delay to be inordinate.
6. On the issue of substantial loss, the Bank submits that the Plaintiff’s financial means, resources, and assets are unknown to it, raising concern that the Plaintiff may be unable to refund the decretal sum should the appeal succeed. This apprehension is reasonable, given that only the Plaintiff possesses full knowledge of his financial position, as emphasized in Kenya Shell Limited v Kibiru & Another [1986] KLR 410.
7. As far as security is concerned, there is evidence that the Bank has already deposited a sum of Kshs. 7,000,000/= as directed by this Honorable Court while granting orders for interim stay of execution on 26th June 2025. The amount was deposited in court on 2nd July 2025.
Disposition
8. In light of the foregoing, and in order to safeguard the Bank’s right to pursue its appeal while simultaneously ensuring that the Plaintiff’s entitlement to the fruits of his judgment is protected should the appeal fail, I find it appropriate to allow the application. The costs of the application shall abide the outcome of the appeal, and the funds deposited in Court shall remain held pending that determination.
Application dated 27th June 2025
9. This application was brought by the Plaintiff. It seeks to have Equity Bank ordered to release the monies and accrued interest held in the joint account number 0180162516252, deposited pursuant to an Order of this Honorable Court issued on the 31st July 2013 to the Plaintiff. The application is supported by an affidavit sworn by the Plaintiff on 27th June 2025. The Plaintiff contends that the amount of Kshs. 500,000/= was ordered by the Court as security for costs for the suit, which he had successfully defended and was therefore entitled to release of the funds.
10. The application is opposed by way of a Replying Affidavit sworn by Florence Njuguna, the Bank’s Head of Legal Department, on 20th August 2025. The Bank contends that the sum deposited by the Plaintiff in the joint account at Equity should continue to be held as security for any costs arising from the Appeal, bearing in mind that a Receiving Order was issued against the Plaintiff’s estate on 18th May 2004.
Analysis and Determination
11. I have read the decision of this Court that was delivered on 31st July 2013. At paragraphs 40-42 the Court emphasized that the Plaintiff had filed three (3) suits in respect of the subject matter herein and the Bank was therefore rightfully apprehensive that the Plaintiff may not be in a position to pay the costs of the present suit in the event that it was dismissed. The Court went on to state that:
“The court finds a sum of Kshs 1,000,000/= could stifle the Plaintiff's right to access to justice. The Plaintiff may very well succeed in his case and ought not to be penalized by being out of pocket in respect of all the costs sought to be paid by the 1st and 2nd Defendants. In the circumstances foregoing, this court hereby orders that the Plaintiff do provide security for costs for the suit in the sum of Kshs 500,000/= to be deposited in an interest earning account in a reputable bank in the joint names of the advocates of the 1st Defendant and the Plaintiff within the next sixty (60) days of this ruling”.
12. I am persuaded by the Plaintiff’s submission that the security for costs was ordered pursuant to Order 26 and was directed solely to the conduct of the suit, and not to the appeal, which is separately governed under Order 42 Rule 6 and which I have already determined. The pronouncement was clear and unequivocal that the security was intended to safeguard the Bank during the pendency of the trial proceedings. That objective has now been achieved, the Plaintiff having successfully prosecuted the suit to judgment in his favor. To permit the Bank’s prayer for the security to continue being retained beyond the conclusion of the trial when the very purpose for which it was ordered has already been satisfied, would occasion undue prejudice to the Plaintiff
Disposition
13. Accordingly, I allow the application dated 27th June 2025 and make no order as to costs.
1. The application dated 23rd June 2025 was filed by the 1st Defendant, and seeks a temporary stay of execution of the Judgment delivered on 23rd May 2025 pending the hearing and determination of its Appeal. The application is supported by the affidavit sworn on even date by Florence Njuguna, the Bank’s Head of Litigation. It is opposed by way of a Replying Affidavit sworn by Aggrey Peter Thande, the Plaintiff. I have also considered the respective written submissions filed by the parties.
Analysis and Determination
2. Order 42 Rule 6 of the Civil Procedure Rules sets out the legal framework under which a party may seek a stay of execution of a decree or judgment pending appeal. The Rule makes clear that the filing of an appeal does not, of itself, operate as a stay of execution. Nonetheless, the Court retains discretion to grant a stay where sufficient cause is shown.
3. For a party to succeed, three conditions must be satisfied. First, the applicant must demonstrate that substantial loss is likely to be suffered if the order for stay is not granted. Second, the application must be made without unreasonable delay. Third, the applicant must provide security for the due performance of the decree or order that may ultimately be binding upon them.
4. Accordingly, the purpose of the Rule is to strike a balance between two competing interests: on the one hand, safeguarding the right of an appellant to pursue an appeal without the risk of the judgment being executed prematurely; and on the other, protecting the right of the successful party to enjoy the fruits of their judgment. This rationale was aptly stated in RWW v EKW [2019] eKLR.
5. Applying these principles to the present matter, I note that the impugned judgment was delivered on 23rd May 2025 while the application for stay is dated the 23rd of June 2025. That is about one month after the delivery of the judgement. I do not consider this delay to be inordinate.
6. On the issue of substantial loss, the Bank submits that the Plaintiff’s financial means, resources, and assets are unknown to it, raising concern that the Plaintiff may be unable to refund the decretal sum should the appeal succeed. This apprehension is reasonable, given that only the Plaintiff possesses full knowledge of his financial position, as emphasized in Kenya Shell Limited v Kibiru & Another [1986] KLR 410.
7. As far as security is concerned, there is evidence that the Bank has already deposited a sum of Kshs. 7,000,000/= as directed by this Honorable Court while granting orders for interim stay of execution on 26th June 2025. The amount was deposited in court on 2nd July 2025.
Disposition
8. In light of the foregoing, and in order to safeguard the Bank’s right to pursue its appeal while simultaneously ensuring that the Plaintiff’s entitlement to the fruits of his judgment is protected should the appeal fail, I find it appropriate to allow the application. The costs of the application shall abide the outcome of the appeal, and the funds deposited in Court shall remain held pending that determination.
Application dated 27th June 2025
9. This application was brought by the Plaintiff. It seeks to have Equity Bank ordered to release the monies and accrued interest held in the joint account number 0180162516252, deposited pursuant to an Order of this Honorable Court issued on the 31st July 2013 to the Plaintiff. The application is supported by an affidavit sworn by the Plaintiff on 27th June 2025. The Plaintiff contends that the amount of Kshs. 500,000/= was ordered by the Court as security for costs for the suit, which he had successfully defended and was therefore entitled to release of the funds.
10. The application is opposed by way of a Replying Affidavit sworn by Florence Njuguna, the Bank’s Head of Legal Department, on 20th August 2025. The Bank contends that the sum deposited by the Plaintiff in the joint account at Equity should continue to be held as security for any costs arising from the Appeal, bearing in mind that a Receiving Order was issued against the Plaintiff’s estate on 18th May 2004.
Analysis and Determination
11. I have read the decision of this Court that was delivered on 31st July 2013. At paragraphs 40-42 the Court emphasized that the Plaintiff had filed three (3) suits in respect of the subject matter herein and the Bank was therefore rightfully apprehensive that the Plaintiff may not be in a position to pay the costs of the present suit in the event that it was dismissed. The Court went on to state that:
“The court finds a sum of Kshs 1,000,000/= could stifle the Plaintiff's right to access to justice. The Plaintiff may very well succeed in his case and ought not to be penalized by being out of pocket in respect of all the costs sought to be paid by the 1st and 2nd Defendants. In the circumstances foregoing, this court hereby orders that the Plaintiff do provide security for costs for the suit in the sum of Kshs 500,000/= to be deposited in an interest earning account in a reputable bank in the joint names of the advocates of the 1st Defendant and the Plaintiff within the next sixty (60) days of this ruling”.
12. I am persuaded by the Plaintiff’s submission that the security for costs was ordered pursuant to Order 26 and was directed solely to the conduct of the suit, and not to the appeal, which is separately governed under Order 42 Rule 6 and which I have already determined. The pronouncement was clear and unequivocal that the security was intended to safeguard the Bank during the pendency of the trial proceedings. That objective has now been achieved, the Plaintiff having successfully prosecuted the suit to judgment in his favor. To permit the Bank’s prayer for the security to continue being retained beyond the conclusion of the trial when the very purpose for which it was ordered has already been satisfied, would occasion undue prejudice to the Plaintiff
Disposition
13. Accordingly, I allow the application dated 27th June 2025 and make no order as to costs.