1. The Appellant/Applicant has filed an application dated 21/3/2026 principally seeking for an order of stay of execution of the judgement and decree delivered by Hon. B.Limo (PM) in Siaya CMCC No. E016 of 2024 together with all consequential orders granted or issued therein pending the hearing and determination of the Appellant’s appeal and that the costs thereof be in the cause.
2. The application is supported by the grounds set out thereunder and by the supporting affidavit of the Appellant/Applicant’s authorized representative sworn on even date. The Applicant’s gravamen is inter alia; that the Respondent instituted Siaya Chief Magistrate's Civil Case No. MCCC/E016/2024 (KEVINE SIMBISI OCHIENG -VS- CHINA RAILWAY NO. 10 ENGINEERING GROUP CO. LTD) ("the lower court suit") against the Appellant/Applicant, which culminated in a Judgment and Decree delivered on 27th February 2026 by Hon. B. Limo (Magistrate); that the Appellant/Applicant has filed a Memorandum of Appeal dated 21st March 2026 impugning the Judgment and decree of the lower court; that the appeal raises serious, substantial, and arguable questions of law and fact which merit full judicial scrutiny, and which, if left untested, would result in a miscarriage of justice and undermine the Appellant/Applicant's right to a fair appellate process; that the Judgment and Decree of the lower court condemned the Appellant/Applicant to pay the Respondent the substantial sum of Kshs. 2,848,000/=, the immediate execution of which would cause irreparable financial prejudice, including the forced liquidation of the Appellant/Applicant's operational assets, which constitute the very tools of its trade and are indispensable for the continued conduct of its business, thereby threatening not only financial ruin but also the futility of the pending Appeal; that the Appeal is highly arguable and demonstrates strong prospects of success, presenting substantial and legitimate questions as to the correctness of the findings and conclusions of the lower court, which, if left unexamined, would occasion manifest injustice to the Appellant/Applicant and frustrate the proper administration of justice; that unless a stay of execution is granted, the Respondent is likely to initiate execution proceedings causing irreparable prejudice to the Appellant/Applicant by liquidating assets necessary for the conduct of its trade, thereby undermining the very purpose of the Appeal; that in the absence of an order staying execution, the Respondent is poised to initiate enforcement proceedings, which would cause irreparable prejudice to the Appellant/Applicant by compelling the sale or attachment of assets critical to the conduct of its business, thereby destroying the substratum of the Appeal and rendering the appellate process ineffective; that execution of the lower court Judgment prior to the hearing and determination of the Appeal would render the Appeal wholly nugatory, as it would irreversibly compromise the Appellant/Applicant's ability to obtain meaningful or effective relief, reducing the Appeal to a mere academic exercise and defeating the very purpose of appellate review; that the Appellant/Applicant is fully prepared to mitigate any potential prejudice to the Respondent by depositing half of the decretal sum (Kshs. 1,424,000/=) into a joint interest-bearing account in the names of the Advocates for both parties, thereby guaranteeing that the Respondent's financial interests are fully safeguarded pending the hearing and determination of the Appeal, and ensuring that the grant of a stay does not occasion any real or irreparable prejudice to the Respondent; that the Respondent will suffer no real or substantial prejudice if the stay of execution is granted, and any theoretical or contingent prejudice can be fully remedied by an award of costs, ensuring that the Respondent's rights remain protected while preserving the integrity of the Appeal; that the application has been filed promptly and without due delay, reflecting the Appellant/Applicant's bona fide intention to prosecute the Appeal diligently, and demonstrating that the request for a stay is made in good faith and not for purposes of obstruction or delay; that it is in the interests of justice, equity, and good conscience that this Honourable Court grants the stay of execution, as refusal to do so would unjustly penalize the Appellant/Applicant, defeat the purpose of the Appeal, and undermine the proper administration of justice.
3. The Respondent opposed the application and duly filed a replying affidavit as well as a Notice of Preliminary Objection dated 8/4/2026.The Respondent’s replying affidavit averred inter alia; that the application is incurably defective having been supported by the supporting affidavit sworn by unrecognized agent of the Appellant contrary to the law; that one of the primary requirement for a stay of execution pending hearing and determination of appeal is the existence of an "arguable appeal.”; that the Appellant's Memorandum of Appeal is fatally defective and improperly drawn in violation of the mandatory statutory provisions of law as it is not concise and is excessively argumentative and narrative (specifically Grounds 1 and 11); that consequently, there is no competent or arguable appeal before this Honourable Court, and that a stay of execution cannot be granted to protect a nullity; that the decree issued by the trial Court is a monetary decree for the sum of Kshs. 2,848,000/= and which decree is not annexed to the application; that it is a settled principle of law that an appeal against a monetary decree cannot be rendered nugatory by execution, as money is always capable of being refunded; that the Appellant's fears of "irreparable loss" are speculative and unfounded, as they have not proved that he is a person of "straw" or incapable of refunding the sum; that he is a person of substantial means and a businessman of high standing, currently running a successful public transportation and construction business within the Republic of Kenya including Siaya Town and that the Appellant is aware – the case before the trial court was a commercial dispute involving him hiring his motor vehicle to the Appellant; that he has a steady and verifiable stream of income from his business operations which ensures that he has the absolute financial capacity to repay the decretal sum in the unlikely event that the Appellant's appeal is successful; that this Honourable Court be inclined to grant a stay of execution on the following terms:
a. That 50% of the decretal sum (Kshs. 1,424,000/=) plus interest be released to me immediately to satisfy my urgent business and legal needs.
b. That the remaining 50% (Kshs. 1,424,000/=) plus interest be deposited in a joint interest-bearing account in the names of the Advocates for both parties or in Court as security.
; That it would be a travesty of justice to deny a successful litigant the fruits of his judgment, especially when his financial solvency is not in doubt.
4. The Respondent’s Notice of Preliminary Objection is dated 8/4/2026 wherein he sought as a preliminary point of law, to be determined in limine, that the Appellant’s application dated 23rd January 2026 and Appeal are fatally defective and incompetent hence should be struck out and or dismissed with costs based on points of law inter alia: that the Memorandum of Appeal dated 21st March 2026 is drawn in blatant contravention of Order 42, Rule 1(2) of the Civil Procedure Rules, which mandatorily requires grounds of appeal to be set forth concisely and without argument or narrative; that the application dated 21st March 2026 is predicated on an incompetent memorandum of appeal hence there is no arguable appeal upon which to consider the application; that the appeal as brought vide memorandum of appeal and the application is an abuse of court process.
5. The parties herein agreed to have the Respondent’s Notice of Preliminary Objection dated 8/4/2026 and the Appellant’s application dated 21/3/2026 be canvassed by way of written submissions.
6. As the Respondent has raised a Notice of Preliminary Objection, he is the first to start. The Respondent relied on his replying affidavit and went ahead to raise two issues for determination namely, whether the P.O is merited and whether the application for stay pending appeal is merited.
7. As regards the first issue, it was submitted that the Respondent’s Preliminary Objection (PO) is a “pure point of law” as defined in the locus classicus Mukisa Biscuits Manufacturing Co. Ltd v West End Distributors Ltd (1969) EA 696.
It was submitted that the Memorandum of Appeal dated 21st March 2026 is fatally defective for blatantly contravening Order 42 Rule 1(2) of the Civil Procedure Rules. That the law mandatorily requires grounds of appeal to be set forth “concisely and without argument or narrative.” The court was invited to scrutinize the 15 grounds of appeal which take up 3 pages of the memorandum of appeal due to non-conciseness/verbosity, argumentativeness and long narrations. It was submitted that the grounds fail the conditions for a proper memorandum of appeal as can be seen in the manner the grounds have been drafted. Reliance was placed in the case of Matton Contractors Limited v Mwangi KEHC 13311 (KLR) , where Justice Wasilke observed that the 6 grounds of appeal were a “classical study on how not to write a Memorandum of Appeal.” The court held that they were severely prolix, repetitive, argumentative, and unseemly, actively violating the statutory requirement to present grounds concisely and without narrative. That in the said case, there was no application by the Respondent to strike out the memorandum of appeal but the Honourable Court still picked up the violation and frowned upon it. That by failing this test, the entire appeal herein is improperly anchored and should be struck out in that by including “narratives” and “arguments”, the Appellant has denied the Respondent the opportunity to see the concise legal errors for proper preparation to counter the Appeal and hence the memorandum of appeal should be struck out.
8. As regards the second issue, it was submitted that the application for stay of execution lacks merit and should be dismissed for two reasons namely, that the deponent of the supporting affidavit is an unrecognized agent and that the application does not meet the threshold of Order 42 Rule 6 of the Civil Procedure Rules. That the description of the deponent in the affidavit in support by the name Wang Qian, described as a “Project Manager.” Is misleading there is no evidence on record that Wang Qian is a person authorized to depose to facts on behalf of the Appellant in these proceedings.
In Giant View Investments Limited v Land Registrar, Kiambu & another KEELC 5262 (KLR) , the court struck out an entire suit for lack of locus standi to swear affidavits on behalf of a company. That in the present situation, no authority to act on behalf of the company was annexed and hence, the court should proceed to strike out the application.
9. It was also contended that the application does not meet the threshold provided by Order 42 Rule 6 (2) of the Civil Procedure Rules which sets the conditions for stay pending appeal namely, arguable appeal, substantial loss, application filed without unreasonable delay and provision of security for the due performance of the decree.
10. As regards the arguability of the appeal, it was submitted that the memorandum of appeal does not raise any triable issues to attract orders of stay of execution of the decree.
11. As regards the issue of substantial loss, it was submitted that the decree
is for Kshs. 2,848,000/=. That the Appellant argues that execution will render the appeal nugatory yet does not show that the Respondent is a person of no means and is incapable of reimbursing the decretal sum if the appeal succeeds. That the Respondent on the other hand has shown that he is a businessman of means running Bungoma line Prestige Shuttle and Liz Ville Construction and further owns high-value motor vehicles (KBK 099R and KCC 584B) and is fully capable of refunding the decretal sum. That the Appellant’s fears are thus speculative and unsupported by evidence.
In Equity Bank Limited V Taiga Adams Company Limited KEHC 860 (KLR) , the court held that:
"the applicant has not shown or established the substantial loss that would ensue if this stay is not granted. The only way of showing or establishing substantial loss is by showing that if the decretal sum is paid to the Respondent – that is execution is carried out – in the event the appeal succeeds, the Respondent would not be in a position to pay- reimburse – he/it is a person of no means. Here, no such allegation is made, much less established, by the appellant/applicant"
12. It was contended that if the Court is inclined to grant a stay, the Respondent prays for the release of 50% of the decretal sum (Kshs. 1,424,000/=) and the balance thereof be deposited into a joint interest earning account in the names of the Advocates for the parties.
In Kimuyu Wambua Titus v Iluku Shadrack Ikonze KEHC 3529 (KLR) , where the court was faced with an application to stay execution of a money decree and the court granted stay of execution upon the appellant paying half (50%) the decretal sums to the respondent while the other half be deposited into a joint interest earning account in the names of both advocates within thirty days from the date of the ruling, and in default the stay shall lapse. It was also contended that the court should consider that a successful litigant should not be deprived of the fruits of his judgment for an indefinite period. That releasing half the funds while securing the other half in a joint account provides a “fair balance” between the parties.
13. The Respondent therefore sought for orders inter alia; that the Notice of Motion dated 21st March 2026 be dismissed with costs to the Respondent; that the Memorandum of Appeal dated 21st March 2026 be struck out for contravening Order 42 Rule 1(2) of the Civil Procedure Rules; that in the alternative, a conditional conditional stay upon payment of 50% of the decretal sum to the Respondent and deposit of the balance 50% into a joint interest earning account in the names of both advocates within 30 days.
14. The Appellant/Applicant submitted separately on both the Notice of Preliminary Objection dated 8/4/2026 and the application for orders of stay of execution pending the appeal dated 21/3/2026.
15. As regards the Preliminary Objection, it was submitted that the same essentially seeks to have the Appellant’s Memorandum of Appeal dated 21 st March 2026 to be dismissed for the alleged failure of not being drafted concisely. It was contended that the said preliminary objection is unmeritorious and is solely intended to derail the expeditious disposal of this matter.
16. The Appellant contended that the Memorandum of Appeal is in full compliance with Order 42 Rule 1(2) of the Civil Procedure Rules and as such the same meets all the requirements stipulated. That the test set forth under Order 42 Rule 1(2) of the Civil Procedure rules requires only that the grounds of appeal be set forth in a manner that will allow the Court to derive triable issues that require determination before the court.
17. In a holistic analysis of the Preliminary Objection, it is evident that it raises contested factual issues, thereby offending the well-settled principles governing Preliminary Objections. The same appears calculated to derail the expeditious disposal of the Appeal rather than advance any pure point of law, and ought therefore to be dismissed with costs.
18. It is trite that preliminary objection must be based purely on a clear point of law which is capable of disposing of the matter without recourse to contested facts or evidence. The Supreme Court in Hassan Ali Joho & Another v Suleiman Said Shahbal & 2 Others relied with approval on the case of, Mukisa Biscuit Manufacturing Co. Ltd –vs.- West End Distributors (1969) EA 696 :
‘a preliminary objection consists of a point of law which has been pleaded or which arises by clear implication out of pleadings and which if argued as a preliminary point may dispose of the suit. Examples are an objection to the jurisdiction of the court or a plea of limitation or a submission that the parties are bound by the contract giving rise to the suit to refer the dispute to arbitration … a preliminary objection is in the nature of what used to be a demurrer. It raises a pure point of law which is argued on the assumption that all the facts pleaded by the other side are correct. It cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion’.”
19. It was contended that the Preliminary Objection herein improperly interrogates the factual basis of the grounds of the Memorandum of Appeal filed by the Appellant and which cannot be resolved as pure points of law. It is trite that where a dispute requires interrogation of facts or evidence, the same cannot be determined through a Preliminary Objection. In John Musakali v Speaker County of Bungoma & 4 Others [2015] eKLR , the High Court relied with approval the court of appeal case of Oraro vs Mbaja [2005] KLR 141 which emphasized that;
“A ‘Preliminary Objection’ correctly understood is now well defined as and declared to be, a point of law which must not be blurred by factual details liable to be contested and in any event, to be proved through the process of evidence. Any assertion which claims to be a Preliminary Objection, yet it bears factual aspects calling for proof, or seeks to adduce evidence for its authentication, is not, as a matter of legal principle, a true Preliminary Objection which the court should allow to proceed. Where a court needs to investigate facts, a matter cannot be raised as a Preliminary point ... Anything that purports to be a preliminary objection must not deal with disputed facts, and it must not itself derive its foundation from factual information which stands to be tested by normal rules of evidence ...”
20. The Memorandum of Appeal dated 21 st March 2026 raises substantial and arguable questions of both law and fact, including the propriety of the trial court’s findings and its interpretation of the evidentiary record. Such matters are thus quintessential appellate issues that require full hearing and judicial interrogation.
The Black's Law Dictionary defines the term “triable” as, “ subject or liable to judicial examination and trial ”. It therefore does not need to be an issue that would succeed, but just one that warrants further intervention by the Court. (see the case of Kilach v Nation Media Group Ltd, Salaba Agencies Ltd & Michael Rono [2015] KECA 846 (KLR ))
Further, in Nairobi Flour Mills Limited v Kiambaa Dairy Farmers Co-operative Society Limited [2025] KEHC 12760 (KLR) the court stated that,
“ We may add that like Madan J.A the power to strike out a pleading which ends in driving a party from the judgement seat should be sparingly used and only in cases where the pleading is shown to be clearly untenable.”
21. From the foregoing cases, it is clear that courts should resist striking out cases and drive away litigants from the seat of justice where it is evident that there are triable issues requiring the determination of the court. This point of law is further buttressed in the case of Lake Victoria North Water Services Board v Densey Tours & Travels & another [2025] KEHC 19670 (KLR) where the court emphatically held that,
“A triable issue has been held to be an issue that is not frivolous and one that would require the court to examine the facts and evidence at a full trial. It need not necessarily mean that the appeal will succeed. The appeal was filed within time and since it raises triable issues, I will not strike it out.
It was contended that Order 42 rule 1(2) should therefore not be used as an obstacle in the pursuit of justice rather, it exists for the sole purpose of ensuring that the grounds of appeal raised do contain issues that require a determination of law and of fact on merit. It is trite that even where one single bonafide ground is found in a memorandum of appeal, then the court cannot strike out the matter as this would amount to an injustice. This is seen in the case of Narok County Government & another v Mwavali [2024] KECA 1799 (KLR) where the Court of Appeal stated that;
“ it is not a requirement that the appeal will necessarily succeed, rather it is sufficient if it appears to be one that deserves to be fully argued before the court and besides an appeal is considered arguable even if it raises a single bonafide ground.”
The Supreme Court in Schoonbee v Kenya National Examinations Council & 2 Others [2019] eKLR underscored that where pleadings disclose arguable issues, however thin, the matter ought to proceed to full determination rather than be summarily disposed of.
Further, the Court of Appeal in Karuturi Limited v Barclays Bank of Kenya Ltd [2018] eKLR held that appellate courts must be slow to terminate proceedings where arguable issues of fact and law are disclosed, as justice demands full ventilation of disputes.
22. It is therefore evident that the issues raised in the Appeal are not merely speculative but raise weighty and bona fide questions touching on the evaluation of evidence, the application of legal principles governing contractual relationships, and the propriety of the findings made by the lower court. Such issues can only be conclusively determined upon a full hearing of the Appeal and, as such, constitute triable issues deserving the intervention and determination of this Honourable Court.
23. The Respondent is essentially seeking to convert contested factual and evidential issues into a Preliminary Objection, and in effect attempting to clog the appellate process and pre-empt the due determination of the substantive grounds of appeal. It is without doubt that this amounts to an abuse of the court process. From the foregoing, the present Preliminary Objection is fatally defective as it improperly invites this Honourable Court to delve into evidential matters reserved for the appellate hearing.
24. In the circumstances, the Preliminary Objection is misconceived, lacks legal foundation, and ought to be dismissed with costs to allow the Appeal to be heard on its merits.
25.. As regards the application dated 21/3/2026 which essentially seeks for inter alia stay of execution of the judgment and decree of the subordinate court delivered by Hon. B. Limo on 27 th February 2026 pending the hearing and determination of this appeal. Even though the same is opposed by the Respondent, the said Respondent has proposed that half of the decretal sums be paid to the Respondent while the balance be deposited into a joint interest earning account in names of both Advocates for the parties pending determination of the appeal.
26. As to whether the Appellant’s application has satisfied the mandatory threshold under Order 42 Rule 6 of the Civil Procedure Rules, it was contended that the Appellant has surmounted the same.
27. As regards the condition of a likelihood of substantial loss to be suffered by the Applicant if stay is not granted, the Applicant has contended and demonstrated that it stands to suffer irreparable harm in the event the requisite orders of stay are not granted and as such make the instant appeal moot.
In Halsbury's Laws of England, 4th Edition, Vol. 37 at p. 330, the book states as doth with respect to stay of proceedings;
" The stay of proceedings is a serious, grave and fundamental interruption in the right that a party has to conduct his litigation towards the trial on the basis of the substantive merits of his case, and therefore the Court's general practice is that a stay of proceedings should not be imposed unless the proceedings, beyond reasonable doubt, ought not to be allowed to continue. This is a power which, it has been emphasized, ought to be exercised sparingly, and only in exceptional cases. lt will be exercised where the proceedings are shown to be frivolous, vexatious or harassing or to be manifestly groundless or in which there is clearly no cause of action in law or in equity. The applicant for a stay on this ground must show not merely that the plaintiff might not, or probably would not, succeed but that he could not possibly succeed on the basis of the pleading and the facts of this case."
In the case of Butt VS Rent Restriction Tribunal [1982] KLR 417 it was stated as follows: -
i. The power of the court to grant or refuse an application for a stay of execution is a discretionary power. The discretion should be exercised in such a way as not to prevent an appeal.
ii. The general principal 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 that appeal court reverse the judge’s discretion.
iii. 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.
iv. The court in exercising its discretion whether to grant or refuse an application for stay will consider the special circumstances of the case and its unique requirements.’’
In the present case, the Applicant has sufficiently demonstrated that unless the orders sought are granted, the decretal sum may be paid out to the Plaintiff/Decree Holder, whose financial means and ability to refund the same in the event the intended appeal succeeds remain unknown. The Applicant has no knowledge of the Plaintiff’s income, assets, or financial standing, and there is therefore a real and imminent risk that recovery of the decretal sum may prove impossible, thereby rendering the intended appeal nugatory. It is trite law that where there exists reasonable apprehension that the decretal amount may not be recoverable, substantial loss is deemed to have been established. The Applicant/Appellant respectfully submits that unless this Honourable Court grants an order of stay of execution pending the hearing and determination of the intended appeal, the appeal shall be rendered nugatory and the Applicant shall suffer substantial loss incapable of being adequately compensated by an award of damages. That the impugned judgment exposes the Applicant to immediate execution, attachment, and possible dissipation of its property and financial resources, thereby occasioning grave prejudice before the appellate court has had an opportunity to interrogate the merits of the appeal. That the Applicant has demonstrated that the appeal raises serious and arguable issues of both fact and law with high prospects of success, and unless preservatory orders are issued, the Respondent may proceed with execution in a manner that irreversibly alters the substratum of the dispute. In the event that the decretal sum is paid out and the appeal subsequently succeeds, there exists a real and legitimate apprehension that the Respondent may not be in a financial position to refund the monies paid, thus occasioning irreparable financial prejudice to the Applicant. Such a scenario would defeat the ends of justice and reduce the appeal process into a mere academic exercise. Further, the Applicant submits that substantial loss does not only arise from the inability to recover the decretal amount, but also from the disruption, hardship, and prejudice likely to be occasioned upon enforcement of the decree prior to the determination of the appeal. Execution proceedings, particularly attachment of assets and disruption of business operations, would severely affect the Applicant’s ability to continue its lawful activities and meet its financial obligations, thereby exposing it to reputational and economic harm. The Court has consistently held that substantial loss is the cornerstone upon which an application for stay of execution is founded, and where an Applicant demonstrates that the appeal would be rendered nugatory absent a stay, the Court ought to exercise its discretion in favour of preserving the status quo.
28. It is noted that the Applicant has approached this Court without unreasonable delay and remains ready and willing to abide by any reasonable conditions as to security that the Court may impose for the due performance of the decree. It is therefore in the interests of justice, fairness, and preservation of the appellate process that this Honourable Court grants an order of stay pending appeal.
This Court, in the case of Masisi Mwita V Damaris Wanjiku Njeri [2016] EKLR held that :
“The corner stone of the jurisdiction of the court under Order 42 of the Civil Procedure Rules is that substantial loss would result to the applicant unless a stay of execution is granted.”
As to what constitutes substantial loss was broadly discussed by Gikonyo J in the case of James Wangalwa & Another Vs Agnes Naliaka Cheseto where it was held inter alia that:-
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. This is what substantial loss would entail 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 ”
In William Odhiambo Ramogi & 2 Others v the Honourable Attorney General & 3 Others [2019] eKLR , a 5-judge Bench of the High Court authoritatively laid out the principles for the grant of stay
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2. The application is supported by the grounds set out thereunder and by the supporting affidavit of the Appellant/Applicant’s authorized representative sworn on even date. The Applicant’s gravamen is inter alia; that the Respondent instituted Siaya Chief Magistrate's Civil Case No. MCCC/E016/2024 (KEVINE SIMBISI OCHIENG -VS- CHINA RAILWAY NO. 10 ENGINEERING GROUP CO. LTD) ("the lower court suit") against the Appellant/Applicant, which culminated in a Judgment and Decree delivered on 27th February 2026 by Hon. B. Limo (Magistrate); that the Appellant/Applicant has filed a Memorandum of Appeal dated 21st March 2026 impugning the Judgment and decree of the lower court; that the appeal raises serious, substantial, and arguable questions of law and fact which merit full judicial scrutiny, and which, if left untested, would result in a miscarriage of justice and undermine the Appellant/Applicant's right to a fair appellate process; that the Judgment and Decree of the lower court condemned the Appellant/Applicant to pay the Respondent the substantial sum of Kshs. 2,848,000/=, the immediate execution of which would cause irreparable financial prejudice, including the forced liquidation of the Appellant/Applicant's operational assets, which constitute the very tools of its trade and are indispensable for the continued conduct of its business, thereby threatening not only financial ruin but also the futility of the pending Appeal; that the Appeal is highly arguable and demonstrates strong prospects of success, presenting substantial and legitimate questions as to the correctness of the findings and conclusions of the lower court, which, if left unexamined, would occasion manifest injustice to the Appellant/Applicant and frustrate the proper administration of justice; that unless a stay of execution is granted, the Respondent is likely to initiate execution proceedings causing irreparable prejudice to the Appellant/Applicant by liquidating assets necessary for the conduct of its trade, thereby undermining the very purpose of the Appeal; that in the absence of an order staying execution, the Respondent is poised to initiate enforcement proceedings, which would cause irreparable prejudice to the Appellant/Applicant by compelling the sale or attachment of assets critical to the conduct of its business, thereby destroying the substratum of the Appeal and rendering the appellate process ineffective; that execution of the lower court Judgment prior to the hearing and determination of the Appeal would render the Appeal wholly nugatory, as it would irreversibly compromise the Appellant/Applicant's ability to obtain meaningful or effective relief, reducing the Appeal to a mere academic exercise and defeating the very purpose of appellate review; that the Appellant/Applicant is fully prepared to mitigate any potential prejudice to the Respondent by depositing half of the decretal sum (Kshs. 1,424,000/=) into a joint interest-bearing account in the names of the Advocates for both parties, thereby guaranteeing that the Respondent's financial interests are fully safeguarded pending the hearing and determination of the Appeal, and ensuring that the grant of a stay does not occasion any real or irreparable prejudice to the Respondent; that the Respondent will suffer no real or substantial prejudice if the stay of execution is granted, and any theoretical or contingent prejudice can be fully remedied by an award of costs, ensuring that the Respondent's rights remain protected while preserving the integrity of the Appeal; that the application has been filed promptly and without due delay, reflecting the Appellant/Applicant's bona fide intention to prosecute the Appeal diligently, and demonstrating that the request for a stay is made in good faith and not for purposes of obstruction or delay; that it is in the interests of justice, equity, and good conscience that this Honourable Court grants the stay of execution, as refusal to do so would unjustly penalize the Appellant/Applicant, defeat the purpose of the Appeal, and undermine the proper administration of justice.
3. The Respondent opposed the application and duly filed a replying affidavit as well as a Notice of Preliminary Objection dated 8/4/2026.The Respondent’s replying affidavit averred inter alia; that the application is incurably defective having been supported by the supporting affidavit sworn by unrecognized agent of the Appellant contrary to the law; that one of the primary requirement for a stay of execution pending hearing and determination of appeal is the existence of an "arguable appeal.”; that the Appellant's Memorandum of Appeal is fatally defective and improperly drawn in violation of the mandatory statutory provisions of law as it is not concise and is excessively argumentative and narrative (specifically Grounds 1 and 11); that consequently, there is no competent or arguable appeal before this Honourable Court, and that a stay of execution cannot be granted to protect a nullity; that the decree issued by the trial Court is a monetary decree for the sum of Kshs. 2,848,000/= and which decree is not annexed to the application; that it is a settled principle of law that an appeal against a monetary decree cannot be rendered nugatory by execution, as money is always capable of being refunded; that the Appellant's fears of "irreparable loss" are speculative and unfounded, as they have not proved that he is a person of "straw" or incapable of refunding the sum; that he is a person of substantial means and a businessman of high standing, currently running a successful public transportation and construction business within the Republic of Kenya including Siaya Town and that the Appellant is aware – the case before the trial court was a commercial dispute involving him hiring his motor vehicle to the Appellant; that he has a steady and verifiable stream of income from his business operations which ensures that he has the absolute financial capacity to repay the decretal sum in the unlikely event that the Appellant's appeal is successful; that this Honourable Court be inclined to grant a stay of execution on the following terms:
a. That 50% of the decretal sum (Kshs. 1,424,000/=) plus interest be released to me immediately to satisfy my urgent business and legal needs.
b. That the remaining 50% (Kshs. 1,424,000/=) plus interest be deposited in a joint interest-bearing account in the names of the Advocates for both parties or in Court as security.
; That it would be a travesty of justice to deny a successful litigant the fruits of his judgment, especially when his financial solvency is not in doubt.
4. The Respondent’s Notice of Preliminary Objection is dated 8/4/2026 wherein he sought as a preliminary point of law, to be determined in limine, that the Appellant’s application dated 23rd January 2026 and Appeal are fatally defective and incompetent hence should be struck out and or dismissed with costs based on points of law inter alia: that the Memorandum of Appeal dated 21st March 2026 is drawn in blatant contravention of Order 42, Rule 1(2) of the Civil Procedure Rules, which mandatorily requires grounds of appeal to be set forth concisely and without argument or narrative; that the application dated 21st March 2026 is predicated on an incompetent memorandum of appeal hence there is no arguable appeal upon which to consider the application; that the appeal as brought vide memorandum of appeal and the application is an abuse of court process.
5. The parties herein agreed to have the Respondent’s Notice of Preliminary Objection dated 8/4/2026 and the Appellant’s application dated 21/3/2026 be canvassed by way of written submissions.
6. As the Respondent has raised a Notice of Preliminary Objection, he is the first to start. The Respondent relied on his replying affidavit and went ahead to raise two issues for determination namely, whether the P.O is merited and whether the application for stay pending appeal is merited.
7. As regards the first issue, it was submitted that the Respondent’s Preliminary Objection (PO) is a “pure point of law” as defined in the locus classicus Mukisa Biscuits Manufacturing Co. Ltd v West End Distributors Ltd (1969) EA 696.
It was submitted that the Memorandum of Appeal dated 21st March 2026 is fatally defective for blatantly contravening Order 42 Rule 1(2) of the Civil Procedure Rules. That the law mandatorily requires grounds of appeal to be set forth “concisely and without argument or narrative.” The court was invited to scrutinize the 15 grounds of appeal which take up 3 pages of the memorandum of appeal due to non-conciseness/verbosity, argumentativeness and long narrations. It was submitted that the grounds fail the conditions for a proper memorandum of appeal as can be seen in the manner the grounds have been drafted. Reliance was placed in the case of Matton Contractors Limited v Mwangi KEHC 13311 (KLR) , where Justice Wasilke observed that the 6 grounds of appeal were a “classical study on how not to write a Memorandum of Appeal.” The court held that they were severely prolix, repetitive, argumentative, and unseemly, actively violating the statutory requirement to present grounds concisely and without narrative. That in the said case, there was no application by the Respondent to strike out the memorandum of appeal but the Honourable Court still picked up the violation and frowned upon it. That by failing this test, the entire appeal herein is improperly anchored and should be struck out in that by including “narratives” and “arguments”, the Appellant has denied the Respondent the opportunity to see the concise legal errors for proper preparation to counter the Appeal and hence the memorandum of appeal should be struck out.
8. As regards the second issue, it was submitted that the application for stay of execution lacks merit and should be dismissed for two reasons namely, that the deponent of the supporting affidavit is an unrecognized agent and that the application does not meet the threshold of Order 42 Rule 6 of the Civil Procedure Rules. That the description of the deponent in the affidavit in support by the name Wang Qian, described as a “Project Manager.” Is misleading there is no evidence on record that Wang Qian is a person authorized to depose to facts on behalf of the Appellant in these proceedings.
In Giant View Investments Limited v Land Registrar, Kiambu & another KEELC 5262 (KLR) , the court struck out an entire suit for lack of locus standi to swear affidavits on behalf of a company. That in the present situation, no authority to act on behalf of the company was annexed and hence, the court should proceed to strike out the application.
9. It was also contended that the application does not meet the threshold provided by Order 42 Rule 6 (2) of the Civil Procedure Rules which sets the conditions for stay pending appeal namely, arguable appeal, substantial loss, application filed without unreasonable delay and provision of security for the due performance of the decree.
10. As regards the arguability of the appeal, it was submitted that the memorandum of appeal does not raise any triable issues to attract orders of stay of execution of the decree.
11. As regards the issue of substantial loss, it was submitted that the decree
is for Kshs. 2,848,000/=. That the Appellant argues that execution will render the appeal nugatory yet does not show that the Respondent is a person of no means and is incapable of reimbursing the decretal sum if the appeal succeeds. That the Respondent on the other hand has shown that he is a businessman of means running Bungoma line Prestige Shuttle and Liz Ville Construction and further owns high-value motor vehicles (KBK 099R and KCC 584B) and is fully capable of refunding the decretal sum. That the Appellant’s fears are thus speculative and unsupported by evidence.
In Equity Bank Limited V Taiga Adams Company Limited KEHC 860 (KLR) , the court held that:
"the applicant has not shown or established the substantial loss that would ensue if this stay is not granted. The only way of showing or establishing substantial loss is by showing that if the decretal sum is paid to the Respondent – that is execution is carried out – in the event the appeal succeeds, the Respondent would not be in a position to pay- reimburse – he/it is a person of no means. Here, no such allegation is made, much less established, by the appellant/applicant"
12. It was contended that if the Court is inclined to grant a stay, the Respondent prays for the release of 50% of the decretal sum (Kshs. 1,424,000/=) and the balance thereof be deposited into a joint interest earning account in the names of the Advocates for the parties.
In Kimuyu Wambua Titus v Iluku Shadrack Ikonze KEHC 3529 (KLR) , where the court was faced with an application to stay execution of a money decree and the court granted stay of execution upon the appellant paying half (50%) the decretal sums to the respondent while the other half be deposited into a joint interest earning account in the names of both advocates within thirty days from the date of the ruling, and in default the stay shall lapse. It was also contended that the court should consider that a successful litigant should not be deprived of the fruits of his judgment for an indefinite period. That releasing half the funds while securing the other half in a joint account provides a “fair balance” between the parties.
13. The Respondent therefore sought for orders inter alia; that the Notice of Motion dated 21st March 2026 be dismissed with costs to the Respondent; that the Memorandum of Appeal dated 21st March 2026 be struck out for contravening Order 42 Rule 1(2) of the Civil Procedure Rules; that in the alternative, a conditional conditional stay upon payment of 50% of the decretal sum to the Respondent and deposit of the balance 50% into a joint interest earning account in the names of both advocates within 30 days.
14. The Appellant/Applicant submitted separately on both the Notice of Preliminary Objection dated 8/4/2026 and the application for orders of stay of execution pending the appeal dated 21/3/2026.
15. As regards the Preliminary Objection, it was submitted that the same essentially seeks to have the Appellant’s Memorandum of Appeal dated 21 st March 2026 to be dismissed for the alleged failure of not being drafted concisely. It was contended that the said preliminary objection is unmeritorious and is solely intended to derail the expeditious disposal of this matter.
16. The Appellant contended that the Memorandum of Appeal is in full compliance with Order 42 Rule 1(2) of the Civil Procedure Rules and as such the same meets all the requirements stipulated. That the test set forth under Order 42 Rule 1(2) of the Civil Procedure rules requires only that the grounds of appeal be set forth in a manner that will allow the Court to derive triable issues that require determination before the court.
17. In a holistic analysis of the Preliminary Objection, it is evident that it raises contested factual issues, thereby offending the well-settled principles governing Preliminary Objections. The same appears calculated to derail the expeditious disposal of the Appeal rather than advance any pure point of law, and ought therefore to be dismissed with costs.
18. It is trite that preliminary objection must be based purely on a clear point of law which is capable of disposing of the matter without recourse to contested facts or evidence. The Supreme Court in Hassan Ali Joho & Another v Suleiman Said Shahbal & 2 Others relied with approval on the case of, Mukisa Biscuit Manufacturing Co. Ltd –vs.- West End Distributors (1969) EA 696 :
‘a preliminary objection consists of a point of law which has been pleaded or which arises by clear implication out of pleadings and which if argued as a preliminary point may dispose of the suit. Examples are an objection to the jurisdiction of the court or a plea of limitation or a submission that the parties are bound by the contract giving rise to the suit to refer the dispute to arbitration … a preliminary objection is in the nature of what used to be a demurrer. It raises a pure point of law which is argued on the assumption that all the facts pleaded by the other side are correct. It cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion’.”
19. It was contended that the Preliminary Objection herein improperly interrogates the factual basis of the grounds of the Memorandum of Appeal filed by the Appellant and which cannot be resolved as pure points of law. It is trite that where a dispute requires interrogation of facts or evidence, the same cannot be determined through a Preliminary Objection. In John Musakali v Speaker County of Bungoma & 4 Others [2015] eKLR , the High Court relied with approval the court of appeal case of Oraro vs Mbaja [2005] KLR 141 which emphasized that;
“A ‘Preliminary Objection’ correctly understood is now well defined as and declared to be, a point of law which must not be blurred by factual details liable to be contested and in any event, to be proved through the process of evidence. Any assertion which claims to be a Preliminary Objection, yet it bears factual aspects calling for proof, or seeks to adduce evidence for its authentication, is not, as a matter of legal principle, a true Preliminary Objection which the court should allow to proceed. Where a court needs to investigate facts, a matter cannot be raised as a Preliminary point ... Anything that purports to be a preliminary objection must not deal with disputed facts, and it must not itself derive its foundation from factual information which stands to be tested by normal rules of evidence ...”
20. The Memorandum of Appeal dated 21 st March 2026 raises substantial and arguable questions of both law and fact, including the propriety of the trial court’s findings and its interpretation of the evidentiary record. Such matters are thus quintessential appellate issues that require full hearing and judicial interrogation.
The Black's Law Dictionary defines the term “triable” as, “ subject or liable to judicial examination and trial ”. It therefore does not need to be an issue that would succeed, but just one that warrants further intervention by the Court. (see the case of Kilach v Nation Media Group Ltd, Salaba Agencies Ltd & Michael Rono [2015] KECA 846 (KLR ))
Further, in Nairobi Flour Mills Limited v Kiambaa Dairy Farmers Co-operative Society Limited [2025] KEHC 12760 (KLR) the court stated that,
“ We may add that like Madan J.A the power to strike out a pleading which ends in driving a party from the judgement seat should be sparingly used and only in cases where the pleading is shown to be clearly untenable.”
21. From the foregoing cases, it is clear that courts should resist striking out cases and drive away litigants from the seat of justice where it is evident that there are triable issues requiring the determination of the court. This point of law is further buttressed in the case of Lake Victoria North Water Services Board v Densey Tours & Travels & another [2025] KEHC 19670 (KLR) where the court emphatically held that,
“A triable issue has been held to be an issue that is not frivolous and one that would require the court to examine the facts and evidence at a full trial. It need not necessarily mean that the appeal will succeed. The appeal was filed within time and since it raises triable issues, I will not strike it out.
It was contended that Order 42 rule 1(2) should therefore not be used as an obstacle in the pursuit of justice rather, it exists for the sole purpose of ensuring that the grounds of appeal raised do contain issues that require a determination of law and of fact on merit. It is trite that even where one single bonafide ground is found in a memorandum of appeal, then the court cannot strike out the matter as this would amount to an injustice. This is seen in the case of Narok County Government & another v Mwavali [2024] KECA 1799 (KLR) where the Court of Appeal stated that;
“ it is not a requirement that the appeal will necessarily succeed, rather it is sufficient if it appears to be one that deserves to be fully argued before the court and besides an appeal is considered arguable even if it raises a single bonafide ground.”
The Supreme Court in Schoonbee v Kenya National Examinations Council & 2 Others [2019] eKLR underscored that where pleadings disclose arguable issues, however thin, the matter ought to proceed to full determination rather than be summarily disposed of.
Further, the Court of Appeal in Karuturi Limited v Barclays Bank of Kenya Ltd [2018] eKLR held that appellate courts must be slow to terminate proceedings where arguable issues of fact and law are disclosed, as justice demands full ventilation of disputes.
22. It is therefore evident that the issues raised in the Appeal are not merely speculative but raise weighty and bona fide questions touching on the evaluation of evidence, the application of legal principles governing contractual relationships, and the propriety of the findings made by the lower court. Such issues can only be conclusively determined upon a full hearing of the Appeal and, as such, constitute triable issues deserving the intervention and determination of this Honourable Court.
23. The Respondent is essentially seeking to convert contested factual and evidential issues into a Preliminary Objection, and in effect attempting to clog the appellate process and pre-empt the due determination of the substantive grounds of appeal. It is without doubt that this amounts to an abuse of the court process. From the foregoing, the present Preliminary Objection is fatally defective as it improperly invites this Honourable Court to delve into evidential matters reserved for the appellate hearing.
24. In the circumstances, the Preliminary Objection is misconceived, lacks legal foundation, and ought to be dismissed with costs to allow the Appeal to be heard on its merits.
25.. As regards the application dated 21/3/2026 which essentially seeks for inter alia stay of execution of the judgment and decree of the subordinate court delivered by Hon. B. Limo on 27 th February 2026 pending the hearing and determination of this appeal. Even though the same is opposed by the Respondent, the said Respondent has proposed that half of the decretal sums be paid to the Respondent while the balance be deposited into a joint interest earning account in names of both Advocates for the parties pending determination of the appeal.
26. As to whether the Appellant’s application has satisfied the mandatory threshold under Order 42 Rule 6 of the Civil Procedure Rules, it was contended that the Appellant has surmounted the same.
27. As regards the condition of a likelihood of substantial loss to be suffered by the Applicant if stay is not granted, the Applicant has contended and demonstrated that it stands to suffer irreparable harm in the event the requisite orders of stay are not granted and as such make the instant appeal moot.
In Halsbury's Laws of England, 4th Edition, Vol. 37 at p. 330, the book states as doth with respect to stay of proceedings;
" The stay of proceedings is a serious, grave and fundamental interruption in the right that a party has to conduct his litigation towards the trial on the basis of the substantive merits of his case, and therefore the Court's general practice is that a stay of proceedings should not be imposed unless the proceedings, beyond reasonable doubt, ought not to be allowed to continue. This is a power which, it has been emphasized, ought to be exercised sparingly, and only in exceptional cases. lt will be exercised where the proceedings are shown to be frivolous, vexatious or harassing or to be manifestly groundless or in which there is clearly no cause of action in law or in equity. The applicant for a stay on this ground must show not merely that the plaintiff might not, or probably would not, succeed but that he could not possibly succeed on the basis of the pleading and the facts of this case."
In the case of Butt VS Rent Restriction Tribunal [1982] KLR 417 it was stated as follows: -
i. The power of the court to grant or refuse an application for a stay of execution is a discretionary power. The discretion should be exercised in such a way as not to prevent an appeal.
ii. The general principal 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 that appeal court reverse the judge’s discretion.
iii. 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.
iv. The court in exercising its discretion whether to grant or refuse an application for stay will consider the special circumstances of the case and its unique requirements.’’
In the present case, the Applicant has sufficiently demonstrated that unless the orders sought are granted, the decretal sum may be paid out to the Plaintiff/Decree Holder, whose financial means and ability to refund the same in the event the intended appeal succeeds remain unknown. The Applicant has no knowledge of the Plaintiff’s income, assets, or financial standing, and there is therefore a real and imminent risk that recovery of the decretal sum may prove impossible, thereby rendering the intended appeal nugatory. It is trite law that where there exists reasonable apprehension that the decretal amount may not be recoverable, substantial loss is deemed to have been established. The Applicant/Appellant respectfully submits that unless this Honourable Court grants an order of stay of execution pending the hearing and determination of the intended appeal, the appeal shall be rendered nugatory and the Applicant shall suffer substantial loss incapable of being adequately compensated by an award of damages. That the impugned judgment exposes the Applicant to immediate execution, attachment, and possible dissipation of its property and financial resources, thereby occasioning grave prejudice before the appellate court has had an opportunity to interrogate the merits of the appeal. That the Applicant has demonstrated that the appeal raises serious and arguable issues of both fact and law with high prospects of success, and unless preservatory orders are issued, the Respondent may proceed with execution in a manner that irreversibly alters the substratum of the dispute. In the event that the decretal sum is paid out and the appeal subsequently succeeds, there exists a real and legitimate apprehension that the Respondent may not be in a financial position to refund the monies paid, thus occasioning irreparable financial prejudice to the Applicant. Such a scenario would defeat the ends of justice and reduce the appeal process into a mere academic exercise. Further, the Applicant submits that substantial loss does not only arise from the inability to recover the decretal amount, but also from the disruption, hardship, and prejudice likely to be occasioned upon enforcement of the decree prior to the determination of the appeal. Execution proceedings, particularly attachment of assets and disruption of business operations, would severely affect the Applicant’s ability to continue its lawful activities and meet its financial obligations, thereby exposing it to reputational and economic harm. The Court has consistently held that substantial loss is the cornerstone upon which an application for stay of execution is founded, and where an Applicant demonstrates that the appeal would be rendered nugatory absent a stay, the Court ought to exercise its discretion in favour of preserving the status quo.
28. It is noted that the Applicant has approached this Court without unreasonable delay and remains ready and willing to abide by any reasonable conditions as to security that the Court may impose for the due performance of the decree. It is therefore in the interests of justice, fairness, and preservation of the appellate process that this Honourable Court grants an order of stay pending appeal.
This Court, in the case of Masisi Mwita V Damaris Wanjiku Njeri [2016] EKLR held that :
“The corner stone of the jurisdiction of the court under Order 42 of the Civil Procedure Rules is that substantial loss would result to the applicant unless a stay of execution is granted.”
As to what constitutes substantial loss was broadly discussed by Gikonyo J in the case of James Wangalwa & Another Vs Agnes Naliaka Cheseto where it was held inter alia that:-
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. This is what substantial loss would entail 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 ”
In William Odhiambo Ramogi & 2 Others v the Honourable Attorney General & 3 Others [2019] eKLR , a 5-judge Bench of the High Court authoritatively laid out the principles for the grant of stay
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