A. INTRODUCTION AND PLEADINGS
1. Before this Court is the Appellant’s Notice of Motion dated 31st October 2025 brought under Order 42 Rule 6 of the Civil Procedure Rules and Sections 1A, 1B and 3A of the Civil Procedure Act seeking, inter alia:
Spent
Spent
A stay of execution of the default judgment delivered and decree issued on 8th August 2025 in favour of the Respondent, together with stay of any subsequent execution proceedings and all consequential orders pending the hearing and determination of the appeal.
That the costs of the application be in the cause.
On 4th November 2025, this Court directed the parties to file written submissions and appear on 14th November 2025 for further directions.
2, The Appellant’s submissions dated 31st October 2025 were duly filed in support of the Motion.
B. APPLICANT’S SUBMISSIONS
The Applicant submitted that they seeksthe Court’s intervention on the following grounds:
a) The Respondent instituted a claim against the Appellant on 4th June 2025. A default judgment was entered on 28th July 2025 and a decree issued on 8th August 2025.
b) The Appellant avers that it was not accorded an opportunity to respond to the suit, prompting the filing of an application dated 19th September 2025 seeking to set aside the default judgment.
c) On 28th October 2025, the trial Court delivered a ruling dismissing that application.
d) The Appellant, being aggrieved, has preferred an appeal said to be arguable with high chances of success.
The Appellant now seeks stay of execution of both the default judgment and the consequential decree pending the hearing and determination of the appeal.
C. ISSUES FOR DETERMINATION
The Applicant relies on Order 42 Rule 6 of the Civil Procedure Rules, which outlines three mandatory conditions for the grant of stay:
a) Demonstration of substantial loss;
b) The application must be filed without unreasonable delay;
c) Provision of such security as the Court may order.
These principles were elaborated in Chris Munga N. Bichage v. Richard Nyagaka Tongi & 2 Others (eKLR) where the Court held that an applicant must demonstrate both that the appeal is arguable and that, unless stay is granted, it will be rendered nugatory.
D. ANALYSIS
1. Whether the Appeal is Arguable
The Applicant has filed a Memorandum of Appeal dated 31st August 2025 raising issues on the right to be accorded an opportunity to defend the suit. The draft Statement of Defence (annexure “OSB–4”) similarly raises triable issues.
Without delving into merits, the Court is satisfied that the appeal is not frivolous.
2. Whether the Appeal will be Rendered Nugatory
The decretal sum is substantial, and execution is likely to proceed immediately. The Appellant contends that if execution issues, and the appeal later succeeds, the outcome may be rendered nugatory. The Court is persuaded by this argument, especially where allegations relate to breach of the right to be heard.
3. Whether Substantial Loss May Result
The principles in Shell Ltd v. Kibiru (1986) KLR 410 remain applicable. Execution of a money decree can amount to substantial loss where the applicant risks irrecoverability of the decretal sum or faces undue hardship. The Respondent has not placed evidence of financial ability to refund the decretal sum if the appeal were successful. Substantial loss is therefore established.
E. RESPONDENT’S SUBMISSIONS
The Respondent opposes the application through a Replying Affidavit sworn on 11th November 2025, arguing that:
a) The appeal was filed in the wrong division. It is contended that appeals from the Small Claims Court must lie to the High Court Small Claims Appeals Division.
b) Section 38(1) of the Small Claims Court Act limits appeals to matters of law only. It is argued that the Appellant’s grounds raise issues of fact.
c) The Respondent maintains the appeal has no chances of success.
F. COURT’S FINDINGS
On the argument that the appeal was filed in the wrong division:
This is an administrative issue. The High Court is a singular superior court of record under Article 165 of the Constitution. Mombasa does not have a standalone Small Claims Appeals Division. Numerous small claims appeals have been filed and heard within this Court’s Civil Division. Some serious sensitization is required on that aspect.
The objection is therefore without merit.
On whether the grounds of appeal raise issues of fact rather than law:
The distinction is not sufficiently clear at this stage. This Court cannot, at the interlocutory stage, conclusively determine the substantive nature of the grounds. The issue is reserved for the appellate hearing.
The objection similarly fails.
On the merits under Order 42 Rule 6:
The Applicant has satisfied the first two limbs : substantial loss and absence of unreasonable delay.
What remains is provision of security.
G. DISPOSAL
Having considered the Motion, rival affidavits and submissions, the Court finds merit in the application and orders as follows:
A stay of execution of the default judgment delivered on 28th July 2025 and the decree issued on 8th August 2025 is hereby granted pending the hearing and determination of the appeal.
The stay is conditional upon the Applicant depositing the entire decretal sum in an interest-earning account in the names of both counsel within thirty (30) days from the date hereof.
In default of compliance, the stay shall automatically lapse.
The Court notes that a draft Defence has been filed. Parties are encouraged to explore an out-of-court settlement of the appeal and have the matter go for full hearing in the trial court failing which the appeal shall proceed to full hearing.
Costs of the application shall be in the appeal.
DATED, SIGNED AND DELIVERED AT MOMBASA THIIS 4TH DAY OF DECEMBER 2025
WENDY KAGENDO
JUDGE
In the presence of ;
MS AMUGUNE FOR THE APPELLANT
N/A FOR THE RESPONDENT
COURT ASSISTANT: BRIAN
1. Before this Court is the Appellant’s Notice of Motion dated 31st October 2025 brought under Order 42 Rule 6 of the Civil Procedure Rules and Sections 1A, 1B and 3A of the Civil Procedure Act seeking, inter alia:
Spent
Spent
A stay of execution of the default judgment delivered and decree issued on 8th August 2025 in favour of the Respondent, together with stay of any subsequent execution proceedings and all consequential orders pending the hearing and determination of the appeal.
That the costs of the application be in the cause.
On 4th November 2025, this Court directed the parties to file written submissions and appear on 14th November 2025 for further directions.
2, The Appellant’s submissions dated 31st October 2025 were duly filed in support of the Motion.
B. APPLICANT’S SUBMISSIONS
The Applicant submitted that they seeksthe Court’s intervention on the following grounds:
a) The Respondent instituted a claim against the Appellant on 4th June 2025. A default judgment was entered on 28th July 2025 and a decree issued on 8th August 2025.
b) The Appellant avers that it was not accorded an opportunity to respond to the suit, prompting the filing of an application dated 19th September 2025 seeking to set aside the default judgment.
c) On 28th October 2025, the trial Court delivered a ruling dismissing that application.
d) The Appellant, being aggrieved, has preferred an appeal said to be arguable with high chances of success.
The Appellant now seeks stay of execution of both the default judgment and the consequential decree pending the hearing and determination of the appeal.
C. ISSUES FOR DETERMINATION
The Applicant relies on Order 42 Rule 6 of the Civil Procedure Rules, which outlines three mandatory conditions for the grant of stay:
a) Demonstration of substantial loss;
b) The application must be filed without unreasonable delay;
c) Provision of such security as the Court may order.
These principles were elaborated in Chris Munga N. Bichage v. Richard Nyagaka Tongi & 2 Others (eKLR) where the Court held that an applicant must demonstrate both that the appeal is arguable and that, unless stay is granted, it will be rendered nugatory.
D. ANALYSIS
1. Whether the Appeal is Arguable
The Applicant has filed a Memorandum of Appeal dated 31st August 2025 raising issues on the right to be accorded an opportunity to defend the suit. The draft Statement of Defence (annexure “OSB–4”) similarly raises triable issues.
Without delving into merits, the Court is satisfied that the appeal is not frivolous.
2. Whether the Appeal will be Rendered Nugatory
The decretal sum is substantial, and execution is likely to proceed immediately. The Appellant contends that if execution issues, and the appeal later succeeds, the outcome may be rendered nugatory. The Court is persuaded by this argument, especially where allegations relate to breach of the right to be heard.
3. Whether Substantial Loss May Result
The principles in Shell Ltd v. Kibiru (1986) KLR 410 remain applicable. Execution of a money decree can amount to substantial loss where the applicant risks irrecoverability of the decretal sum or faces undue hardship. The Respondent has not placed evidence of financial ability to refund the decretal sum if the appeal were successful. Substantial loss is therefore established.
E. RESPONDENT’S SUBMISSIONS
The Respondent opposes the application through a Replying Affidavit sworn on 11th November 2025, arguing that:
a) The appeal was filed in the wrong division. It is contended that appeals from the Small Claims Court must lie to the High Court Small Claims Appeals Division.
b) Section 38(1) of the Small Claims Court Act limits appeals to matters of law only. It is argued that the Appellant’s grounds raise issues of fact.
c) The Respondent maintains the appeal has no chances of success.
F. COURT’S FINDINGS
On the argument that the appeal was filed in the wrong division:
This is an administrative issue. The High Court is a singular superior court of record under Article 165 of the Constitution. Mombasa does not have a standalone Small Claims Appeals Division. Numerous small claims appeals have been filed and heard within this Court’s Civil Division. Some serious sensitization is required on that aspect.
The objection is therefore without merit.
On whether the grounds of appeal raise issues of fact rather than law:
The distinction is not sufficiently clear at this stage. This Court cannot, at the interlocutory stage, conclusively determine the substantive nature of the grounds. The issue is reserved for the appellate hearing.
The objection similarly fails.
On the merits under Order 42 Rule 6:
The Applicant has satisfied the first two limbs : substantial loss and absence of unreasonable delay.
What remains is provision of security.
G. DISPOSAL
Having considered the Motion, rival affidavits and submissions, the Court finds merit in the application and orders as follows:
A stay of execution of the default judgment delivered on 28th July 2025 and the decree issued on 8th August 2025 is hereby granted pending the hearing and determination of the appeal.
The stay is conditional upon the Applicant depositing the entire decretal sum in an interest-earning account in the names of both counsel within thirty (30) days from the date hereof.
In default of compliance, the stay shall automatically lapse.
The Court notes that a draft Defence has been filed. Parties are encouraged to explore an out-of-court settlement of the appeal and have the matter go for full hearing in the trial court failing which the appeal shall proceed to full hearing.
Costs of the application shall be in the appeal.
DATED, SIGNED AND DELIVERED AT MOMBASA THIIS 4TH DAY OF DECEMBER 2025
WENDY KAGENDO
JUDGE
In the presence of ;
MS AMUGUNE FOR THE APPELLANT
N/A FOR THE RESPONDENT
COURT ASSISTANT: BRIAN