1. Introduction
By a Notice of Motion dated 26th March 2026, brought under Sections 3A of the Civil Procedure Act, Order 9 Rule 9 and Order 42 Rule 6 of the Civil Procedure Rules, the Applicant/Appellant, Brinks Security Services Limited, sought the following orders:
(a) That the matter be certified as urgent and heard on priority basis;
(b) That leave be granted for KMA Advocates to come on record for the Applicant;
(c) That a stay of execution in MCELRC E384 of 2024 be granted pending the hearing and determination of the Application;
(d) That the Court be pleased to grant a stay of execution of the judgment and decree issued in MCELRC E384 of 2024 pending the hearing and determination of the Appeal against the judgment entered by Hon. Gathogo Sogomo on 16th January 2026;
(e) Costs of the Application; and
(f) Any other orders that meet the ends of justice.
2. The Applicant's Case
The Application is premised on the grounds set out on its face and on the Supporting Affidavit of Martin Miyago, the Applicant's Legal Officer, sworn on 26th March 2026. The deponent avers that judgment was entered against the Applicant on 16th January 2026 in the sum of Kshs 1,390,414.93; that the Respondents, through Makini Auctioneers Agencies, have since served the Applicant with a Proclamation Notice dated 24th March 2026; that unless stay is granted the Applicant will suffer substantial loss and irreparable harm; that the intended appeal has a reasonable chance of success and, if execution proceeds, the appeal will be rendered nugatory; and that the Applicant is willing to abide by such terms and conditions as to security as the Court may impose.
3. The Respondents' Case
The Application is opposed through the Replying Affidavit of Ann Mbula Maweu, the 1st Respondent, sworn on 8th April 2026 on her own behalf and on behalf of the 2nd to 4th Respondents pursuant to a written authority dated 4th July 2024. The 1st Respondent avers, in material part, that judgment was regularly entered in the Respondents' favour on 16th January 2026; that a bill of costs was thereafter taxed at Kshs 139,700 on 27th February 2026 with the Applicant's advocate participating in that process; that the statutory period for filing an appeal lapsed on 16th February 2026; that the Applicant has declined to settle the decretal sum; that the Application is brought in bad faith to deny the Respondents the fruits of their judgment; and, critically, that the Applicant has neither demonstrated that it would suffer substantial loss if stay is not granted, nor shown that its operations would be curtailed by payment of the decretal sum. The Respondents pray that the Application be dismissed with costs.
4. Issue for Determination
The single issue arising for determination is whether the Applicant has met the threshold for the grant of an order of stay of execution pending appeal under Order 42 Rule 6 of the Civil Procedure Rules.
5. The Law
Order 42 Rule 6(1) of the Civil Procedure Rules provides that no appeal or proceeding shall operate as a stay of execution unless the court so orders. Order 42 Rule 6(2) sets out three conditions that an applicant must satisfy before such an order can issue, namely that:
(a) substantial loss may result to the applicant unless the order is made;
(b) the application has been made without unreasonable delay; and
(c) such security as the court orders for the due performance of the decree has been given by the applicant.
It is well settled, that these conditions are conjunctive and not disjunctive. An applicant bears the burden of satisfying each of them, and the failure to establish even one is fatal to the application, regardless of the strength of the applicant's showing on the remaining limbs. Of the three, the demonstration of substantial loss has consistently been treated as the cornerstone consideration, since the grant of stay is fundamentally directed at averting a loss that execution would otherwise occasion and that cannot later be remedied.
6. Analysis and Determination
Turning to the substantial loss limb, the burden lies squarely on the Applicant to place before the Court particularised material demonstrating the nature and extent of the loss it stands to suffer should stay be withheld. A bare or generalised assertion of harm, unaccompanied by supporting facts, does not discharge that burden. See. Vishram Ravji Halai v Thornton & Turpin (1963) Ltd [1990] KLR 365, and Kenya Shell Limited v Kibiru 1986 &Another [1986] KECA 94[KLR].
The Supporting Affidavit, at paragraphs 4 and 5, avers only that the Applicant "stand[s] to suffer irreparable harm and loss if orders for stay of execution are not issued urgently" and that the Respondents are "unlikely to suffer any loss that cannot be quantified by way of damages." These averments are conclusory. No material is placed before the Court to show, for instance, the Applicant's financial standing or ability to satisfy the decree; whether the specific items proclaimed and attached, being office equipment, a motor vehicle, computers and furniture, are essential to the continued operation of the Applicant's business such that their loss would be irreversible or incapable of remedy; the value of those items measured against the decretal sum; or any basis upon which the Court could find that a payment of Kshs 1,390,414.93, or the realization of the attached property, would occasion loss that could not later be reversed or compensated should the appeal succeed.
The Respondents' Replying Affidavit, at paragraphs 13 and 14, squarely takes issue with this deficiency, averring that the Applicant has not demonstrated that it would incur substantial loss, nor that its operations would be curtailed, if the decretal sum is paid out. No further affidavit was filed by the Applicant to meet or rebut this averment, and it accordingly stands unchallenged on the record.
Having considered the rival positions, the Court finds that the Applicant has failed to discharge its burden of demonstrating substantial loss within the meaning of Order 42 Rule 6(2)(a). Mere apprehension of execution, or the fact that execution has been set in motion, is not synonymous with substantial loss; something more specific and evidentiary is required. Since the three conditions under Order 42 Rule 6 are conjunctive, the Applicant's failure on this limb alone is dispositive of the Application, and it is unnecessary for the Court to determine the remaining limbs on delay and security.
7. Disposition
For the foregoing reasons, the Court makes the following orders:
(a) Prayers 3 and 4 of the Notice of Motion dated 26th March 2026, seeking a stay of execution of the judgment and decree in MCELRC E384 of 2024 pending the hearing and determination of the Appeal, are declined and hereby dismissed;
(b) Prayer 2 of the Application, seeking leave for KMA Advocates to come on record for the Applicant, is granted, there being no opposition thereto;
(c) The costs of the Application shall be borne by the Applicant and awarded to the Respondents;
(d) It is so ordered.
DATED, SIGNED AND DELIVERED at MOMBASA this 25th Day of JUNE 2026.