1. This ruling concerns the Appellant’s application dated 29th October 2025 seeking an order of stay of execution of the judgment delivered on 17th September 2025 in Keroka MCCC E075 of 2024 pending the hearing and determination of the appeal lodged in this Court.
2. The application is brought under Order 42 Rule 6 of the Civil Procedure Rules and is supported by affidavits sworn by the Appellant, Charles Kipyeogon Ngetich. The Respondents opposed the application through a replying affidavit sworn by the 1st Respondent, Scola Bunyige alias Scola P. John, on 10th November 2025. Both parties filed written submissions which I have read and considered in full.
3. The factual background is largely uncontested. Judgment was delivered by the subordinate court on 17th September 2025 in favour of the 1st Respondent. The trial court granted a stay of execution for thirty days from the date of judgment. The Appellant filed a memorandum of appeal dated 30th September 2025. Upon lapse of the thirty-day stay, execution proceedings were commenced, and warrants of attachment and proclamation were issued on 28th October 2025 in respect of the Appellant’s motor vehicle, registration number KCT 289T Isuzu FRR. The present application followed shortly thereafter.
4. The principles governing an application for stay of execution pending appeal are settled. Under Order 42 Rule 6(2) of the Civil Procedure Rules, an applicant must demonstrate that the application has been brought without unreasonable delay, that substantial loss may result unless the order is made, and that security for the due performance of the decree has been furnished.
5. The parties relied on well-established authority from the Court of Appeal. The Respondents placed emphasis on Kenya Shell Limited v Kibiru & Another [1986] KLR 410, where the Court held that substantial loss is the cornerstone of the jurisdiction to grant stay and that, absent such loss, a successful litigant should not be deprived of the fruits of judgment. The Applicant relied on Peter Ondande t/a Spreawett Chemist v Josephine Wangari Karanu [2006] eKLR, where the Court explained that the purpose of stay is to preserve the subject matter of the appeal and that security is mandatory once stay is granted. Both parties cited Utalii Transport Company Limited v NIC Bank Limited & Another [2014] eKLR on the contextual assessment of delay, Arun C. Sharma v Ashana Raikundalia t/a Raikundalia & Co. Advocates [2014] eKLR on the nature and purpose of security, and Peter Gichini Njuguna v UAP Insurance Company Limited [2016] eKLR on the discretion of the Court in relation to costs. The Applicant further relied on Bamburi Portland Cement Company Limited v Imranali Chandbhai Abdullhussein [1994] KECA 202 (KLR) in relation to execution proceedings.
6. On the question of delay, the judgment was delivered on 17th September 2025 and the application before this Court was filed on 29th October 2025. In assessing delay, the Court must consider the surrounding circumstances. The Appellant lodged an appeal within time and approached this Court after execution proceedings were initiated following the lapse of the trial court’s stay. Guided by the reasoning in Utalii Transport Company Limited v NIC Bank Limited & Another (supra) , I am not persuaded that the delay in the circumstances of this case is inordinate or unreasonable.
7. The more substantive question is whether the Applicant has demonstrated substantial loss. Execution had progressed beyond a mere threat. Warrants of attachment and proclamation had issued in respect of a specific motor vehicle. The forced sale of such property would not be easily reversible and carries a real risk of rendering the appeal nugatory. This is not a case of speculative loss. Applying the principles articulated in Kenya Shell Limited v Kibiru & Another (supra) and Peter Ondande t/a Spreawett Chemist v Josephine Wangari Karanu (supra), I am satisfied that the Applicant demonstrated a real and imminent risk of substantial loss.
8. The Court must then consider whether security for due performance of the decree has been furnished. Initially, the Respondents’ position was that no security had been provided and that any stay, if granted, should be conditional. However, the position on the record changed subsequently.
9. The Appellant deponed, on oath, that pursuant to an order of this Court issued on 30th October 2025, he deposited the entire decretal sum in court on 05th November 2025. Importantly, this is not a matter resting solely on affidavit evidence. The court record itself confirms receipt of the decretal sum in the amount of KES. 2,911,746 on 05th November 2025. The deposit is reflected in the court’s financial records and was acknowledged in correspondence placed on the record. The Respondents did not place before the Court any evidence disputing that deposit.
10. In law, uncontroverted affidavit evidence stands, and where such evidence is further corroborated by the court record, the Court is entitled to treat the fact as conclusively established. I therefore make a clear finding that the full decretal sum was deposited in court on 05th November 2025 and that adequate security for the due performance of the decree has been furnished.
11. The existence of full security materially alters the balance of convenience. As stated in Arun C. Sharma v Ashana Raikundalia t/a Raikundalia & Co. Advocates (supra), security is intended to safeguard the decree-holder’s interests while the appeal is pending, not to punish the appellant or stifle the right of appeal. In the present case, the Respondents’ monetary interest is fully secured. The only prejudice they face is delay, which is an inevitable incident of the appellate process.
12. As regards the warrants of attachment and sale issued on 28th October 2025, it is acknowledged that they were issued after the lapse of the trial court’s stay and were, at that point, procedurally permissible. However, once this Court is satisfied that the threshold for stay under Order 42 Rule 6 has been met and that the entire decretal sum has been secured, the continuation of execution would undermine the purpose of the appeal. Guided by the reasoning in Bamburi Portland Cement Company Limited v Imranali Chandbhai Abdullhussein (supra) and in order to preserve the substratum of the appeal, those warrants cannot be allowed to subsist pending the determination of the appeal.
13. On the question of costs, Section 27 of the Civil Procedure Act vests discretion in the Court. Applying the principles in Peter Gichini Njuguna v UAP Insurance Company Limited (supra), and bearing in mind that execution had lawfully commenced before the deposit was made, but that the Applicant has now secured the decree in full, the just order is that costs of the application shall abide the outcome of the appeal.
14. In the final analysis, the Applicant has satisfied all the requirements under Order 42 Rule 6 of the Civil Procedure Rules. The application dated 29th October 2025 is merited and it is hereby ordered:
1) There shall be a stay of execution of the judgment delivered on 17th September 2025 in Keroka MCCC E075 of 2024 pending the hearing and determination of the appeal.
2) The warrants of attachment and sale issued on 28th October 2025 are hereby lifted.
3) Costs of attachment shall be borne by the Applicant
4) The decretal sum deposited in court on 05th November 2025 shall remain as security pending the hearing and determination of the appeal.
5) Mention on 05th March 2026 before the Deputy Registrar to confirm filing and service of the record and exchange of submissions
6) The costs of the application shall abide the outcome of the appeal.
2. The application is brought under Order 42 Rule 6 of the Civil Procedure Rules and is supported by affidavits sworn by the Appellant, Charles Kipyeogon Ngetich. The Respondents opposed the application through a replying affidavit sworn by the 1st Respondent, Scola Bunyige alias Scola P. John, on 10th November 2025. Both parties filed written submissions which I have read and considered in full.
3. The factual background is largely uncontested. Judgment was delivered by the subordinate court on 17th September 2025 in favour of the 1st Respondent. The trial court granted a stay of execution for thirty days from the date of judgment. The Appellant filed a memorandum of appeal dated 30th September 2025. Upon lapse of the thirty-day stay, execution proceedings were commenced, and warrants of attachment and proclamation were issued on 28th October 2025 in respect of the Appellant’s motor vehicle, registration number KCT 289T Isuzu FRR. The present application followed shortly thereafter.
4. The principles governing an application for stay of execution pending appeal are settled. Under Order 42 Rule 6(2) of the Civil Procedure Rules, an applicant must demonstrate that the application has been brought without unreasonable delay, that substantial loss may result unless the order is made, and that security for the due performance of the decree has been furnished.
5. The parties relied on well-established authority from the Court of Appeal. The Respondents placed emphasis on Kenya Shell Limited v Kibiru & Another [1986] KLR 410, where the Court held that substantial loss is the cornerstone of the jurisdiction to grant stay and that, absent such loss, a successful litigant should not be deprived of the fruits of judgment. The Applicant relied on Peter Ondande t/a Spreawett Chemist v Josephine Wangari Karanu [2006] eKLR, where the Court explained that the purpose of stay is to preserve the subject matter of the appeal and that security is mandatory once stay is granted. Both parties cited Utalii Transport Company Limited v NIC Bank Limited & Another [2014] eKLR on the contextual assessment of delay, Arun C. Sharma v Ashana Raikundalia t/a Raikundalia & Co. Advocates [2014] eKLR on the nature and purpose of security, and Peter Gichini Njuguna v UAP Insurance Company Limited [2016] eKLR on the discretion of the Court in relation to costs. The Applicant further relied on Bamburi Portland Cement Company Limited v Imranali Chandbhai Abdullhussein [1994] KECA 202 (KLR) in relation to execution proceedings.
6. On the question of delay, the judgment was delivered on 17th September 2025 and the application before this Court was filed on 29th October 2025. In assessing delay, the Court must consider the surrounding circumstances. The Appellant lodged an appeal within time and approached this Court after execution proceedings were initiated following the lapse of the trial court’s stay. Guided by the reasoning in Utalii Transport Company Limited v NIC Bank Limited & Another (supra) , I am not persuaded that the delay in the circumstances of this case is inordinate or unreasonable.
7. The more substantive question is whether the Applicant has demonstrated substantial loss. Execution had progressed beyond a mere threat. Warrants of attachment and proclamation had issued in respect of a specific motor vehicle. The forced sale of such property would not be easily reversible and carries a real risk of rendering the appeal nugatory. This is not a case of speculative loss. Applying the principles articulated in Kenya Shell Limited v Kibiru & Another (supra) and Peter Ondande t/a Spreawett Chemist v Josephine Wangari Karanu (supra), I am satisfied that the Applicant demonstrated a real and imminent risk of substantial loss.
8. The Court must then consider whether security for due performance of the decree has been furnished. Initially, the Respondents’ position was that no security had been provided and that any stay, if granted, should be conditional. However, the position on the record changed subsequently.
9. The Appellant deponed, on oath, that pursuant to an order of this Court issued on 30th October 2025, he deposited the entire decretal sum in court on 05th November 2025. Importantly, this is not a matter resting solely on affidavit evidence. The court record itself confirms receipt of the decretal sum in the amount of KES. 2,911,746 on 05th November 2025. The deposit is reflected in the court’s financial records and was acknowledged in correspondence placed on the record. The Respondents did not place before the Court any evidence disputing that deposit.
10. In law, uncontroverted affidavit evidence stands, and where such evidence is further corroborated by the court record, the Court is entitled to treat the fact as conclusively established. I therefore make a clear finding that the full decretal sum was deposited in court on 05th November 2025 and that adequate security for the due performance of the decree has been furnished.
11. The existence of full security materially alters the balance of convenience. As stated in Arun C. Sharma v Ashana Raikundalia t/a Raikundalia & Co. Advocates (supra), security is intended to safeguard the decree-holder’s interests while the appeal is pending, not to punish the appellant or stifle the right of appeal. In the present case, the Respondents’ monetary interest is fully secured. The only prejudice they face is delay, which is an inevitable incident of the appellate process.
12. As regards the warrants of attachment and sale issued on 28th October 2025, it is acknowledged that they were issued after the lapse of the trial court’s stay and were, at that point, procedurally permissible. However, once this Court is satisfied that the threshold for stay under Order 42 Rule 6 has been met and that the entire decretal sum has been secured, the continuation of execution would undermine the purpose of the appeal. Guided by the reasoning in Bamburi Portland Cement Company Limited v Imranali Chandbhai Abdullhussein (supra) and in order to preserve the substratum of the appeal, those warrants cannot be allowed to subsist pending the determination of the appeal.
13. On the question of costs, Section 27 of the Civil Procedure Act vests discretion in the Court. Applying the principles in Peter Gichini Njuguna v UAP Insurance Company Limited (supra), and bearing in mind that execution had lawfully commenced before the deposit was made, but that the Applicant has now secured the decree in full, the just order is that costs of the application shall abide the outcome of the appeal.
14. In the final analysis, the Applicant has satisfied all the requirements under Order 42 Rule 6 of the Civil Procedure Rules. The application dated 29th October 2025 is merited and it is hereby ordered:
1) There shall be a stay of execution of the judgment delivered on 17th September 2025 in Keroka MCCC E075 of 2024 pending the hearing and determination of the appeal.
2) The warrants of attachment and sale issued on 28th October 2025 are hereby lifted.
3) Costs of attachment shall be borne by the Applicant
4) The decretal sum deposited in court on 05th November 2025 shall remain as security pending the hearing and determination of the appeal.
5) Mention on 05th March 2026 before the Deputy Registrar to confirm filing and service of the record and exchange of submissions
6) The costs of the application shall abide the outcome of the appeal.