RULING
1. Caroline Kanini Maina has filed before this Court an application by way of Notice of Motion dated 16th October 2025 seeking an order of stay of execution against the judgment in Kwale Magistrates Court Civil Case No. E099 of 2025 delivered on 19th September 2025 by Hon. R. K. Ogolla pending the hearing and determination of the appeal filed against the said judgment. The judgment arose out of a suit by the respondent against the appellant seeking compensation for injuries sustained by the respondent following a road traffic accident on 16th May 2023 along Beach road involving the respondent as a pedestrian and the appellant as the driver and owner of motor vehicle registration number KCX 757X Toyota. The respondent.
2. Upon considering the evidence tendered the trial court entered judgment for the respondent against the appellant, apportioning liability in the ratio of 90:10 between the appellant and the respondent and awarded the appellant KShs 1,300,000/= general damages, subject to 10% contribution and special damages KShs 2,550/=.
3. The appellant was dissatisfied with the judgment on both apportionment of liability and assessment of damages and has filed an appeal to this court through a memorandum dated 16th October 2025.
4. The applicant has at the same time filed the present application for stay of execution pending appeal by way of notice of motion dated 16th October 2025.
5. The application is expressed to be brought under Article 139 of the Constitution, sections 1A, 1B, of the Civil Procedure Act (Cap. 21) Laws of Kenya, Order 42 Rule 6(1), Order 22 Rule 29 and Order 51 Rule 1 of the Civil Procedure Rules, and all other enabling provisions of the law.
6. The grounds in support of the application as laid out on the face thereof and expounded in the supporting affidavit of Caroline Kanini Maina sworn on 16th October 2025 are that the applicant has lodged an appeal to this court; that the appeal has very good chances of success on both liability and assessment of damages. Further that she has also been sued by the insurer of her motor vehicle for repudiation of the contract of insurance. She therefore risks paying the entire decretal sum if the order for stay is not granted in which case she will suffer irreparably.
7. The appellant deposes further that she was not charged for any traffic offence following the accident and that the learned trial magistrate erred in failing to find that the respondent was drunk at the time of the accident.
8. The applicant has also attached to the supporting affidavit the memorandum of appeal dated 16th October 2025 and filed in court on the same day.
9. The application is opposed by the respondent through grounds of opposition dated 28th October 2025. Some of the grounds namely grounds (b) and (c) seem to me to be misplaced as they relate to a different application.
10. The respondent avers that the appellant has not offered or provided security for the decree as required under the law and that the appeal is frivolous and has no chance of success. Further that the application is filed to frustrate the respondent from enjoying the fruits of his judgment.
11. The application was disposed of by way of written submissions filed by learned counsel for the applicant only. The respondent did not file submissions even after time had been extended to him to do so.
12. The submission by learned counsel for the applicant is brief, that the grounds of appeal show that the appellant has very good chances of succeeding in the appeal.
13. On the issue of provision of security, the appellant submits that she should be allowed to deposit her car log book in court. That, it is not a must that she deposits money in court and in any case, she is not in a position to do so considering that the insurer of her motor vehicle has since sued her to avoid payment on the contract of insurance.
14. I have considered the Notice of Motion application, the grounds in support thereof, the supporting affidavit as well as the grounds of opposition filed by the respondent and the submissions by learned counsel for the appellant. The issues for determination are whether the application has merit, what orders the court should issue and who bears the costs of the application.
15. Stay of execution pending appeal to the High Court is provided for under Order 42 Rule 6 of the Civil Procedure Rules 2010 as follows;
“(1) No appeal or second appeal shall operate as a stay of execution or proceeding under a decree or order appealed from except in so far as the court appealed from may order but, the court appealed from may for sufficient cause order stay of execution of such decree or order, and whether the application for such stay shall have been granted or refused by the court appealed from, the court to which such appeal is preferred shall be at liberty, on application being made, to consider such application and to make such order thereon as may to it seem just, and any person aggrieved by an order of stay made by the court from whose decision the appeal is preferred may apply to the appellate court to have such order set aside.
(2) No order for stay of execution shall be made under subrule (1) unless –
(a) the court is satisfied that substantial loss may result to the applicant unless the order is made and that the application has been made without unreasonable delay; and
(b) such security as the court orders for the due performance of such decree or order as may ultimately be binding on him has been given by the applicant.”
16. From the foregoing provision of the law, the three conditions to be satisfied for an order of stay pending appeal to issue are;
a. that substantial loss may result to the applicant unless the order is granted.
b. the application has been made without unreasonable delay.
c. security as the court orders for the due performance of the decree.
17. The High Court’s jurisdiction to grant a stay of execution pending appeal under Order 42 rule 6 of the Civil Procedure Rules is circumscribed by the three conditions (See the case of Halai & another v Thornton & Turpin (1963) Ltd [1990] KECA 65 (KLR)).
18. These principles are further enunciated in the case of Butt v Rent Restriction Tribunal [1979] KECA 22 (KLR) where the Court of Appeal stated what ought to be considered in determining whether to grant or refuse stay of execution pending appeal. The court said that: -
a. The power of the court to grant or refuse an application for a stay of execution is discretionary; and the discretion should be exercised in such a way as not to prevent an appeal.
b. Secondly, the general principle in granting or refusing a stay is, if there is no other overwhelming hindrance, a stay must be granted so that an appeal may not be rendered nugatory should the appeal court reverse the judge’s discretion.
c. Thirdly, a judge should not refuse a stay if there are good grounds for granting it merely because, in his opinion, a better remedy may become available to the applicant at the end of the proceedings.
d. Finally, the Court in exercising its discretion whether to grant or refuse an application for stay will consider the special circumstances and its unique requirements. The court in exercising its powers under Order XLI Rule 4(2) (b) of the Civil Procedure Rules, can order security upon application by either party or on its own motion. Failure to put security as ordered will cause the order for stay of execution to lapse.
19. It has also been held that the court, in exercising its discretion, should also opt for the lower rather than the higher risk of injustice and finally the court will also consider the overriding objective as stipulated in sections 1A and 1B of the Civil Procedure Act, which the courts are now enjoined to give effect to. (See Machira t/a Machira & Co Advocates v East African Standard [2002] KEHC 1167 (KLR)).
20. On the requirement that the application be made without unreasonable delay, the judgment the subject of the appeal was delivered on 19th September 2025 and the memorandum of appeal was filed on 17th October 2025. That was within the statutory period provided for filing an appeal to the High Court. The present application was filed at the same time as the appeal. I am satisfied that the application was filed within a reasonable time and therefore that condition is satisfied.
21. On the requirement to demonstrate substantial loss, the applicant deposes that she stands to suffer prejudice if execution is levied because she has to pay the entire decretal sum as her insurance company seems keen to avoid satisfying the judgment. I do not think, that the respondent’s right to enjoy the fruits of his judgment should be depended on the applicant’s current financial status or her relationship with her insurer. At the end of the day, whether in person or through her insurer, she is the one responsible for settlement of the decretal sum. See the cases of Samwel Kimutai Korir (Suing as Personal and Legal Representative Of Estate) of Chelangat Silevia v Nyanchwa Adventist Secondary School & Nyanchwa Adventist College [2017] KEHC 2780 (KLR). In any case, if she was to pay the decretal sum and then the case against her by her insurer goes in her favour, the insurer will have to refund her the amount she would have paid.
22. All the same it is upon the court to determine whether the applicant has demonstrated that she stands to suffer substantial loss if a stay of execution is not granted. I think in her circumstances; it is arguable that she stands to suffer substantial loss if she is made to pay the decretal sum at once. I am therefore satisfied that the second condition has also been satisfied.
23. I am aware that the respondent has a decree in his favour and he is entitled to enjoy the fruits thereof. But the applicant also has her right to appeal. The court has to balance the interests of the applicant who is seeking to preserve the status quo pending the hearing of the appeal so that his appeal is not rendered nugatory and the interest of the respondent who is seeking to enjoy the fruits of his judgment. Balancing the two competing interests in this case, I find that the loss that would be suffered by the applicant would be substantial if the stay order is not granted.
24. However, this issue is evened out on the next requirement to be satisfied for stay of execution to issue that is, “such security as the court orders for the due performance of such decree or order as may ultimately be binding on him has been given by the applicant.”
25. The applicant has offered her motor vehicle as security. But, she has not even given the value of her said vehicle. Yet again it cannot be established in what condition the vehicle will be at the end of the appeal to be worth a sum that can satisfy the decree. I am not satisfied that the motor vehicle is a good form of security. The form of security to be provided is at the discretion of the court but it has to be acceptable. The court will in its discretion set and require an appropriate security from the applicant, failure to which her application will be deemed to have been dismissed.
26. Consequently, I find that the application herein has merit. In order not to render the intended appeal nugatory, the application is granted on conditions. The application is allowed and stay of execution of the decree of the lower court in Kwale Magistrates Court Civil Case No. E099 of 2023 arising from the judgment delivered on 19th September 2025 is granted pending hearing and determination of the appeal herein on condition that the applicant either deposits in court a title deed free of encumbrances for a real property whose value is not below KShs 1,500,000/= with a restriction registered thereon at the Lands Registry to the effect that the same shall not be transferred, charged or dealt with in any manner prejudicial to the interests of the respondent herein pending the hearing and determination of the appeal herein or alternatively she deposits half of the judgment sumt, that is KShs 655,000/= in an interest earning account in the joint names of both advocates for the parties. Either of these conditions to be satisfied within the next 30 days from the date hereof. In the further alternative the appellant to provide an acceptable bank or Sacco Society guarantee of this sum. The Sacco Society guarantee would be to the effect that she is in good standing with the Sacco to advance her a loan of KShs 650,000/= should need arise for purposes of satisfying the decree in the present case.
27. Failure by the applicant to abide by the conditions hereinabove, this application will be deemed to have been dismissed and the respondent will be at liberty to execute.
28. The record of appeal shall be filed within 45 days from today. Mention for further directions on the appeal on 24th June 2026.
29. Costs of the application will abide by the appeal.
30. Orders accordingly.
Delivered, dated and signed at Kwale on the Virtual Platform, Teams this 29th day of April 2026.
ANDAYI W. F.
JUDGE
In the presence of:
N/A for the applicant.
Juma (Ms) for the respondent.
Ummu: Court Assistant.
1. Caroline Kanini Maina has filed before this Court an application by way of Notice of Motion dated 16th October 2025 seeking an order of stay of execution against the judgment in Kwale Magistrates Court Civil Case No. E099 of 2025 delivered on 19th September 2025 by Hon. R. K. Ogolla pending the hearing and determination of the appeal filed against the said judgment. The judgment arose out of a suit by the respondent against the appellant seeking compensation for injuries sustained by the respondent following a road traffic accident on 16th May 2023 along Beach road involving the respondent as a pedestrian and the appellant as the driver and owner of motor vehicle registration number KCX 757X Toyota. The respondent.
2. Upon considering the evidence tendered the trial court entered judgment for the respondent against the appellant, apportioning liability in the ratio of 90:10 between the appellant and the respondent and awarded the appellant KShs 1,300,000/= general damages, subject to 10% contribution and special damages KShs 2,550/=.
3. The appellant was dissatisfied with the judgment on both apportionment of liability and assessment of damages and has filed an appeal to this court through a memorandum dated 16th October 2025.
4. The applicant has at the same time filed the present application for stay of execution pending appeal by way of notice of motion dated 16th October 2025.
5. The application is expressed to be brought under Article 139 of the Constitution, sections 1A, 1B, of the Civil Procedure Act (Cap. 21) Laws of Kenya, Order 42 Rule 6(1), Order 22 Rule 29 and Order 51 Rule 1 of the Civil Procedure Rules, and all other enabling provisions of the law.
6. The grounds in support of the application as laid out on the face thereof and expounded in the supporting affidavit of Caroline Kanini Maina sworn on 16th October 2025 are that the applicant has lodged an appeal to this court; that the appeal has very good chances of success on both liability and assessment of damages. Further that she has also been sued by the insurer of her motor vehicle for repudiation of the contract of insurance. She therefore risks paying the entire decretal sum if the order for stay is not granted in which case she will suffer irreparably.
7. The appellant deposes further that she was not charged for any traffic offence following the accident and that the learned trial magistrate erred in failing to find that the respondent was drunk at the time of the accident.
8. The applicant has also attached to the supporting affidavit the memorandum of appeal dated 16th October 2025 and filed in court on the same day.
9. The application is opposed by the respondent through grounds of opposition dated 28th October 2025. Some of the grounds namely grounds (b) and (c) seem to me to be misplaced as they relate to a different application.
10. The respondent avers that the appellant has not offered or provided security for the decree as required under the law and that the appeal is frivolous and has no chance of success. Further that the application is filed to frustrate the respondent from enjoying the fruits of his judgment.
11. The application was disposed of by way of written submissions filed by learned counsel for the applicant only. The respondent did not file submissions even after time had been extended to him to do so.
12. The submission by learned counsel for the applicant is brief, that the grounds of appeal show that the appellant has very good chances of succeeding in the appeal.
13. On the issue of provision of security, the appellant submits that she should be allowed to deposit her car log book in court. That, it is not a must that she deposits money in court and in any case, she is not in a position to do so considering that the insurer of her motor vehicle has since sued her to avoid payment on the contract of insurance.
14. I have considered the Notice of Motion application, the grounds in support thereof, the supporting affidavit as well as the grounds of opposition filed by the respondent and the submissions by learned counsel for the appellant. The issues for determination are whether the application has merit, what orders the court should issue and who bears the costs of the application.
15. Stay of execution pending appeal to the High Court is provided for under Order 42 Rule 6 of the Civil Procedure Rules 2010 as follows;
“(1) No appeal or second appeal shall operate as a stay of execution or proceeding under a decree or order appealed from except in so far as the court appealed from may order but, the court appealed from may for sufficient cause order stay of execution of such decree or order, and whether the application for such stay shall have been granted or refused by the court appealed from, the court to which such appeal is preferred shall be at liberty, on application being made, to consider such application and to make such order thereon as may to it seem just, and any person aggrieved by an order of stay made by the court from whose decision the appeal is preferred may apply to the appellate court to have such order set aside.
(2) No order for stay of execution shall be made under subrule (1) unless –
(a) the court is satisfied that substantial loss may result to the applicant unless the order is made and that the application has been made without unreasonable delay; and
(b) such security as the court orders for the due performance of such decree or order as may ultimately be binding on him has been given by the applicant.”
16. From the foregoing provision of the law, the three conditions to be satisfied for an order of stay pending appeal to issue are;
a. that substantial loss may result to the applicant unless the order is granted.
b. the application has been made without unreasonable delay.
c. security as the court orders for the due performance of the decree.
17. The High Court’s jurisdiction to grant a stay of execution pending appeal under Order 42 rule 6 of the Civil Procedure Rules is circumscribed by the three conditions (See the case of Halai & another v Thornton & Turpin (1963) Ltd [1990] KECA 65 (KLR)).
18. These principles are further enunciated in the case of Butt v Rent Restriction Tribunal [1979] KECA 22 (KLR) where the Court of Appeal stated what ought to be considered in determining whether to grant or refuse stay of execution pending appeal. The court said that: -
a. The power of the court to grant or refuse an application for a stay of execution is discretionary; and the discretion should be exercised in such a way as not to prevent an appeal.
b. Secondly, the general principle in granting or refusing a stay is, if there is no other overwhelming hindrance, a stay must be granted so that an appeal may not be rendered nugatory should the appeal court reverse the judge’s discretion.
c. Thirdly, a judge should not refuse a stay if there are good grounds for granting it merely because, in his opinion, a better remedy may become available to the applicant at the end of the proceedings.
d. Finally, the Court in exercising its discretion whether to grant or refuse an application for stay will consider the special circumstances and its unique requirements. The court in exercising its powers under Order XLI Rule 4(2) (b) of the Civil Procedure Rules, can order security upon application by either party or on its own motion. Failure to put security as ordered will cause the order for stay of execution to lapse.
19. It has also been held that the court, in exercising its discretion, should also opt for the lower rather than the higher risk of injustice and finally the court will also consider the overriding objective as stipulated in sections 1A and 1B of the Civil Procedure Act, which the courts are now enjoined to give effect to. (See Machira t/a Machira & Co Advocates v East African Standard [2002] KEHC 1167 (KLR)).
20. On the requirement that the application be made without unreasonable delay, the judgment the subject of the appeal was delivered on 19th September 2025 and the memorandum of appeal was filed on 17th October 2025. That was within the statutory period provided for filing an appeal to the High Court. The present application was filed at the same time as the appeal. I am satisfied that the application was filed within a reasonable time and therefore that condition is satisfied.
21. On the requirement to demonstrate substantial loss, the applicant deposes that she stands to suffer prejudice if execution is levied because she has to pay the entire decretal sum as her insurance company seems keen to avoid satisfying the judgment. I do not think, that the respondent’s right to enjoy the fruits of his judgment should be depended on the applicant’s current financial status or her relationship with her insurer. At the end of the day, whether in person or through her insurer, she is the one responsible for settlement of the decretal sum. See the cases of Samwel Kimutai Korir (Suing as Personal and Legal Representative Of Estate) of Chelangat Silevia v Nyanchwa Adventist Secondary School & Nyanchwa Adventist College [2017] KEHC 2780 (KLR). In any case, if she was to pay the decretal sum and then the case against her by her insurer goes in her favour, the insurer will have to refund her the amount she would have paid.
22. All the same it is upon the court to determine whether the applicant has demonstrated that she stands to suffer substantial loss if a stay of execution is not granted. I think in her circumstances; it is arguable that she stands to suffer substantial loss if she is made to pay the decretal sum at once. I am therefore satisfied that the second condition has also been satisfied.
23. I am aware that the respondent has a decree in his favour and he is entitled to enjoy the fruits thereof. But the applicant also has her right to appeal. The court has to balance the interests of the applicant who is seeking to preserve the status quo pending the hearing of the appeal so that his appeal is not rendered nugatory and the interest of the respondent who is seeking to enjoy the fruits of his judgment. Balancing the two competing interests in this case, I find that the loss that would be suffered by the applicant would be substantial if the stay order is not granted.
24. However, this issue is evened out on the next requirement to be satisfied for stay of execution to issue that is, “such security as the court orders for the due performance of such decree or order as may ultimately be binding on him has been given by the applicant.”
25. The applicant has offered her motor vehicle as security. But, she has not even given the value of her said vehicle. Yet again it cannot be established in what condition the vehicle will be at the end of the appeal to be worth a sum that can satisfy the decree. I am not satisfied that the motor vehicle is a good form of security. The form of security to be provided is at the discretion of the court but it has to be acceptable. The court will in its discretion set and require an appropriate security from the applicant, failure to which her application will be deemed to have been dismissed.
26. Consequently, I find that the application herein has merit. In order not to render the intended appeal nugatory, the application is granted on conditions. The application is allowed and stay of execution of the decree of the lower court in Kwale Magistrates Court Civil Case No. E099 of 2023 arising from the judgment delivered on 19th September 2025 is granted pending hearing and determination of the appeal herein on condition that the applicant either deposits in court a title deed free of encumbrances for a real property whose value is not below KShs 1,500,000/= with a restriction registered thereon at the Lands Registry to the effect that the same shall not be transferred, charged or dealt with in any manner prejudicial to the interests of the respondent herein pending the hearing and determination of the appeal herein or alternatively she deposits half of the judgment sumt, that is KShs 655,000/= in an interest earning account in the joint names of both advocates for the parties. Either of these conditions to be satisfied within the next 30 days from the date hereof. In the further alternative the appellant to provide an acceptable bank or Sacco Society guarantee of this sum. The Sacco Society guarantee would be to the effect that she is in good standing with the Sacco to advance her a loan of KShs 650,000/= should need arise for purposes of satisfying the decree in the present case.
27. Failure by the applicant to abide by the conditions hereinabove, this application will be deemed to have been dismissed and the respondent will be at liberty to execute.
28. The record of appeal shall be filed within 45 days from today. Mention for further directions on the appeal on 24th June 2026.
29. Costs of the application will abide by the appeal.
30. Orders accordingly.
Delivered, dated and signed at Kwale on the Virtual Platform, Teams this 29th day of April 2026.
ANDAYI W. F.
JUDGE
In the presence of:
N/A for the applicant.
Juma (Ms) for the respondent.
Ummu: Court Assistant.