1. The appellant’s notice of motion is dated 13th April 2026 and it seeks the following:
a) Spent.
b) THAT pending the hearing of the Application ex parte, this Honourable Court be pleased to stay the execution of the judgment delivered by the Honourable Lewis Gatheru on 27th March 2026.
c) THAT pending the hearing and determination of this Application, this Honourable Court be pleased to stay the execution of the judgment delivered by the Honourable Lewis Gatheru on 27th March 2026.
d) THAT pending the hearing and determination of this Appeal, this Honourable Court be pleased to stay the execution of the judgment delivered by the Honourable Lewis Gatheru on the 27th March 2026.
e) THAT the costs of this application be provided for.
2. The application is premised on several grounds and the supporting affidavit of the appellant sworn on even date where he stated that judgment in MOMBASA MCCC NO. 1675 OF 2017 Alfred Mwalimu Kahindi vs Career Directions Limited was delivered by Hon. Lewis Gatheru on the 27th March 2024 in favour of the respondent for a decretal sum of Kshs. 902,000. The liability was apportioned in terms of 15% against the respondent and 85% against the Appellant which brings the decretal sum to Kshs. 766,700. He further added that a stay of execution was granted for 30 days from the above-mentioned date of judgment and will lapse on 27th April 2026. He asserts that his appeal has triable issues and is apprehensive that the respondent will execute the judgment to the great loss and suffering of the applicant. Further he is adamant that if the stay of execution is not granted, the entire appeal will be rendered nugatory and the appellant stands to suffer irreparable damage. He is willing to provide security and offered to provide Kshs. 84,723.84 which he calculated and deemed as the proper award to have been awarded against it if it were to be 100% liable.
3. The respondent swore a replying affidavit dated 14th April 2026 and he reiterated that the judgment delivered on 27th March 2026 is yet to be satisfied and that the appellant has not demonstrated the substantial loss he will suffer if the decretal sums are not paid. He contends that the application is merely an academic exercise for purposes of delaying and preventing him from enjoying the fruits of his judgment. He conceded that should the application be allowed, the appellant ought to deposit the entire decretal sum as security for costs.
4. No submissions were filed, and the court has raised only one issue for determination which is whether or not the appellant meets the threshold for stay of execution.
5. After careful consideration of the application and the reply thereto the court has come up with the following determination:
a. Stay of execution is not an automatic right upon filing of an appeal in this court and it is also up to the discretion of this court. Under Order 42 rule 6 of the Civil Procedure Rules, there are three requirements and they are as follows:
1. Substantial loss may result unless the order is made.
2. The application is made without unreasonable delay.
3. Security as the court deems fit.
b. In deciding whether or not to grant stay, The court in the Machira case above held as follows:
“...to be obsessed with the protection of an appellant or intending appellant in total disregard or flitting mention of the so far successful opposite party is to flirt with one party as crocodile tears are shed for the other, contrary to sound principle for the exercise of a judicial discretion. The ordinary principle is that a successful party is entitled to the fruits of his judgment or of any decision of the court giving him success at any stage. That is trite knowledge and is one of the fundamental procedural values which is acknowledged and normally must be put into effect by the way applications for stay of further proceedings or execution, pending appeal are handled. In the application of that ordinary principle, the court must have its sight firmly fixed on upholding the overriding objective of the rules of procedure for handling civil cases in courts, which is to do justice in accordance with the law and to prevent abuse of the process of the court”.
c. When it comes to substantial loss, the court in Mukuma V Abuoga (1988) KLR 645 the court held:
“…the issue of substantial loss is the cornerstone of both jurisdictions. Substantial loss is what has to be prevented by preserving the status quo because such loss would render the appeal nugatory.”
d. As afore stated, execution is a lawful process and the successful party deserves to enjoy the fruits of his judgment as was held in James Wangalwa & Another V Agnes Naliaka Cheseto [2012] KEHC 1094 (KLR) the court held:
“11.No doubt, in law, the fact that the process of execution has been put in motion, or is likely to be put in motion, by itself, does not amount to substantial loss. Even when execution has been levied and completed, that is to say, the attached properties have been sold, as is the case here, does not in itself amount to substantial loss under Order 42 Rule 6 of the CPR. This is so because execution is a lawful process.
The applicant must establish other factors which show that the execution will create a state of affairs that will irreparably affect or negate the very essential core of the Applicant as the successful party in the appeal”
e. In Machira t/a Machira & Co. Advocates vs East Africa Standard (No.2) [2002] 2KLR 63 at page 67 , Kuloba J, defined substantial loss as thus;
“If the applicant cites, as a ground, substantial loss, the kind of loss likely to be sustained must be specified, details or particulars thereof must be given, and the conscience of the court, looking at what will happen unless a suspension or stay is ordered, must be satisfied that such loss will really ensue and that if it comes to pass, the applicant is likely to suffer substantial injury by letting the other party proceed further with what may still be remaining to be done or in execution of an awarded, decree or order, before disposal of the applicant’s business (e.g. Appeal or intended appeal).”
f. The courts have accentuated the above holding and further held in determining substantial loss, the court has to conduct a delicate balancing act between the parties as was held in Jason Ngumba Kagu & 2 others v Intra Africa Assurance Co. Limited [2014] KEHC 2183 (KLR) where the court had this to say:
“The Court arrives at a decision that substantial loss is likely to occur if stay is not made by performing a delicate balancing act between the right of the Respondent to the fruits of his judgment and the right of the Applicant on the prospects of his appeal. Even though many say that the test in the High court is not that of ‘’the appeal will be rendered nugatory’’, the prospects of the Appellant to his appeal invariably entails that his appeal should not be rendered nugatory. The substantial loss, therefore, will occur if there is a possibility the appeal will be rendered nugatory. Here, it is not really a question of measuring the prospects of the appeal itself, but rather, whether by asking the Applicant to do what the judgment requires, he will become a pious explorer in the judicial process.”
In Tropical Commodities Suppliers Ltd and others vs. International Credit Bank Limited (in liquidation) (2004) E.A. LR 331 the court held:
“…Substantial loss does not represent any particular mathematical formula. Rather, it is a qualitative concept. It refers to any loss, great or small, that is of real worth or value as distinguished from a loss without value or a loss that is merely nominal…”
g. The appellant has not defined the substantial loss and has left the court in the muck and mire of conjecture. The question therefore remains of how to balance the rights of the parties in these circumstances.? In Antoine Ndiaye v African Virtual University [2015] KEHC 6783 (KLR):
“Despite my findings above, I reckon that the Applicant is alive to the fact that even where stay is granted it must be on terms in the form of a security for the due performance of such decree or order as may ultimately be binding on the Applicant. And the Applicant has offered USD 20,000 as security. That may be a good gesture. But importantly I reckon that the Respondent made a proposal that, in the event stay of execution is granted, one half of the decretal sum be paid to the Respondent and the other half to be deposited in an interest earning account in the joint names of parties. Accordingly, there is room for a stay of execution given these sentiments by the parties as long as the parties’ rights are held in almost symmetrical bound.”
Just as the learned judge used his discretion to prevent the applicant from being a pious explorer in the judicial process and since the appellant has failed to define the substantial loss but both parties agree that security should be deposited, the court deems that it is only prudent that the application should be allowed.
h. The court therefore allows the application in the following terms:
1) THAT pending the hearing and determination of this Appeal, this Honourable Court does hereby grant an order of stay of execution of the judgment delivered by the Honourable Lewis Gatheru on the 27th March 2026.
2) The appellant to deposit the decretal sum of Kshs. 766,700 in a bank account to be ageed upon and opened in the names of the firms of advocates representing both sides within the next 30 days, failure to which the application stands dismissed.
3) The costs of this application will abide in the appeal.
4) Mention on 16.06.2026 before the deputy registrar to confirm compliance and position on record of appeal
6. It is so ordered.
Dated, signed , and delivered in Open Court/Online through MS TEAMS , this …13th…… day of …MAY…… 2026.
HON. LADY JUSTICE W. K. MICHENI
JUDGE
a) Spent.
b) THAT pending the hearing of the Application ex parte, this Honourable Court be pleased to stay the execution of the judgment delivered by the Honourable Lewis Gatheru on 27th March 2026.
c) THAT pending the hearing and determination of this Application, this Honourable Court be pleased to stay the execution of the judgment delivered by the Honourable Lewis Gatheru on 27th March 2026.
d) THAT pending the hearing and determination of this Appeal, this Honourable Court be pleased to stay the execution of the judgment delivered by the Honourable Lewis Gatheru on the 27th March 2026.
e) THAT the costs of this application be provided for.
2. The application is premised on several grounds and the supporting affidavit of the appellant sworn on even date where he stated that judgment in MOMBASA MCCC NO. 1675 OF 2017 Alfred Mwalimu Kahindi vs Career Directions Limited was delivered by Hon. Lewis Gatheru on the 27th March 2024 in favour of the respondent for a decretal sum of Kshs. 902,000. The liability was apportioned in terms of 15% against the respondent and 85% against the Appellant which brings the decretal sum to Kshs. 766,700. He further added that a stay of execution was granted for 30 days from the above-mentioned date of judgment and will lapse on 27th April 2026. He asserts that his appeal has triable issues and is apprehensive that the respondent will execute the judgment to the great loss and suffering of the applicant. Further he is adamant that if the stay of execution is not granted, the entire appeal will be rendered nugatory and the appellant stands to suffer irreparable damage. He is willing to provide security and offered to provide Kshs. 84,723.84 which he calculated and deemed as the proper award to have been awarded against it if it were to be 100% liable.
3. The respondent swore a replying affidavit dated 14th April 2026 and he reiterated that the judgment delivered on 27th March 2026 is yet to be satisfied and that the appellant has not demonstrated the substantial loss he will suffer if the decretal sums are not paid. He contends that the application is merely an academic exercise for purposes of delaying and preventing him from enjoying the fruits of his judgment. He conceded that should the application be allowed, the appellant ought to deposit the entire decretal sum as security for costs.
4. No submissions were filed, and the court has raised only one issue for determination which is whether or not the appellant meets the threshold for stay of execution.
5. After careful consideration of the application and the reply thereto the court has come up with the following determination:
a. Stay of execution is not an automatic right upon filing of an appeal in this court and it is also up to the discretion of this court. Under Order 42 rule 6 of the Civil Procedure Rules, there are three requirements and they are as follows:
1. Substantial loss may result unless the order is made.
2. The application is made without unreasonable delay.
3. Security as the court deems fit.
b. In deciding whether or not to grant stay, The court in the Machira case above held as follows:
“...to be obsessed with the protection of an appellant or intending appellant in total disregard or flitting mention of the so far successful opposite party is to flirt with one party as crocodile tears are shed for the other, contrary to sound principle for the exercise of a judicial discretion. The ordinary principle is that a successful party is entitled to the fruits of his judgment or of any decision of the court giving him success at any stage. That is trite knowledge and is one of the fundamental procedural values which is acknowledged and normally must be put into effect by the way applications for stay of further proceedings or execution, pending appeal are handled. In the application of that ordinary principle, the court must have its sight firmly fixed on upholding the overriding objective of the rules of procedure for handling civil cases in courts, which is to do justice in accordance with the law and to prevent abuse of the process of the court”.
c. When it comes to substantial loss, the court in Mukuma V Abuoga (1988) KLR 645 the court held:
“…the issue of substantial loss is the cornerstone of both jurisdictions. Substantial loss is what has to be prevented by preserving the status quo because such loss would render the appeal nugatory.”
d. As afore stated, execution is a lawful process and the successful party deserves to enjoy the fruits of his judgment as was held in James Wangalwa & Another V Agnes Naliaka Cheseto [2012] KEHC 1094 (KLR) the court held:
“11.No doubt, in law, the fact that the process of execution has been put in motion, or is likely to be put in motion, by itself, does not amount to substantial loss. Even when execution has been levied and completed, that is to say, the attached properties have been sold, as is the case here, does not in itself amount to substantial loss under Order 42 Rule 6 of the CPR. This is so because execution is a lawful process.
The applicant must establish other factors which show that the execution will create a state of affairs that will irreparably affect or negate the very essential core of the Applicant as the successful party in the appeal”
e. In Machira t/a Machira & Co. Advocates vs East Africa Standard (No.2) [2002] 2KLR 63 at page 67 , Kuloba J, defined substantial loss as thus;
“If the applicant cites, as a ground, substantial loss, the kind of loss likely to be sustained must be specified, details or particulars thereof must be given, and the conscience of the court, looking at what will happen unless a suspension or stay is ordered, must be satisfied that such loss will really ensue and that if it comes to pass, the applicant is likely to suffer substantial injury by letting the other party proceed further with what may still be remaining to be done or in execution of an awarded, decree or order, before disposal of the applicant’s business (e.g. Appeal or intended appeal).”
f. The courts have accentuated the above holding and further held in determining substantial loss, the court has to conduct a delicate balancing act between the parties as was held in Jason Ngumba Kagu & 2 others v Intra Africa Assurance Co. Limited [2014] KEHC 2183 (KLR) where the court had this to say:
“The Court arrives at a decision that substantial loss is likely to occur if stay is not made by performing a delicate balancing act between the right of the Respondent to the fruits of his judgment and the right of the Applicant on the prospects of his appeal. Even though many say that the test in the High court is not that of ‘’the appeal will be rendered nugatory’’, the prospects of the Appellant to his appeal invariably entails that his appeal should not be rendered nugatory. The substantial loss, therefore, will occur if there is a possibility the appeal will be rendered nugatory. Here, it is not really a question of measuring the prospects of the appeal itself, but rather, whether by asking the Applicant to do what the judgment requires, he will become a pious explorer in the judicial process.”
In Tropical Commodities Suppliers Ltd and others vs. International Credit Bank Limited (in liquidation) (2004) E.A. LR 331 the court held:
“…Substantial loss does not represent any particular mathematical formula. Rather, it is a qualitative concept. It refers to any loss, great or small, that is of real worth or value as distinguished from a loss without value or a loss that is merely nominal…”
g. The appellant has not defined the substantial loss and has left the court in the muck and mire of conjecture. The question therefore remains of how to balance the rights of the parties in these circumstances.? In Antoine Ndiaye v African Virtual University [2015] KEHC 6783 (KLR):
“Despite my findings above, I reckon that the Applicant is alive to the fact that even where stay is granted it must be on terms in the form of a security for the due performance of such decree or order as may ultimately be binding on the Applicant. And the Applicant has offered USD 20,000 as security. That may be a good gesture. But importantly I reckon that the Respondent made a proposal that, in the event stay of execution is granted, one half of the decretal sum be paid to the Respondent and the other half to be deposited in an interest earning account in the joint names of parties. Accordingly, there is room for a stay of execution given these sentiments by the parties as long as the parties’ rights are held in almost symmetrical bound.”
Just as the learned judge used his discretion to prevent the applicant from being a pious explorer in the judicial process and since the appellant has failed to define the substantial loss but both parties agree that security should be deposited, the court deems that it is only prudent that the application should be allowed.
h. The court therefore allows the application in the following terms:
1) THAT pending the hearing and determination of this Appeal, this Honourable Court does hereby grant an order of stay of execution of the judgment delivered by the Honourable Lewis Gatheru on the 27th March 2026.
2) The appellant to deposit the decretal sum of Kshs. 766,700 in a bank account to be ageed upon and opened in the names of the firms of advocates representing both sides within the next 30 days, failure to which the application stands dismissed.
3) The costs of this application will abide in the appeal.
4) Mention on 16.06.2026 before the deputy registrar to confirm compliance and position on record of appeal
6. It is so ordered.
Dated, signed , and delivered in Open Court/Online through MS TEAMS , this …13th…… day of …MAY…… 2026.
HON. LADY JUSTICE W. K. MICHENI
JUDGE