Introduction
1. The Appellant/Applicant filed the Notice of Motion dated 6th February 2026 brought under sections 3 and 3A of the Civil Procedure Act, Order 42 rule 6, Order 50 rule 5, Order 51 rules 1 and 3, and Order 22 rule 22 of the Civil Procedure Rules. The substantive prayers are for stay of execution of the decretal sum of Kshs. 1,468,835, interest of Kshs. 119,954, further costs of Kshs. 1,500 and collection fee of Kshs. 1,500, and also for stay of attachment, auction, sale and transfer of property proclaimed at Directline Assurance Company Limited's Eldoret office pending the hearing and determination of the appeal.
2. The Applicant further prays that the sum of Kshs. 1,531,165 previously deposited in a joint interest-earning account in Kericho HCCA No. E027 of 2021 be deemed sufficient security for the present appeal and that the balance of the decretal sum be held in abeyance. The motion is supported by the affidavit of Rayn Wendo, the Claims Manager of Directline Assurance Company Limited, sworn on 6th February 2026.
3. The Respondent opposed the application through the replying affidavit sworn on 4th March 2026 by Mr. David Nyakango Onyancha, learned counsel on record for the Respondent, and through written submissions.
Background
4. The record shows that judgment in Kericho CMCC No. 466 of 2019 was delivered on 7th September 2021 in favour of the Respondent for Kshs. 3,062,330 plus costs and interest. The Applicant appealed against that judgment in Kericho HCCA No. E027 of 2021 and deposited Kshs. 1,531,165 in a joint interest-earning account as security for that appeal.
5. On 1st February 2024, the High Court delivered judgment in Kericho HCCA No. E027 of 2021 in the sum of Kshs. 2,912,330 plus costs and interest. The Respondent thereafter withdrew the sum that had been held in the joint account as part satisfaction of the decree, the appeal having partly succeeded.
6. On 30th June 2025, a consent was recorded in the subordinate court. It provided that Directline Assurance Company Limited, the insurer, would pay Kshs. 1,468,835 to the decree-holder in three equal monthly instalments of Kshs. 489,612 with effect from 15th August 2025, and that, in default of any instalment, execution would issue for the outstanding sum together with accrued interest and costs of execution. The consent further provided that Kshs. 371,107 would be paid by the insured, Daniel Omari, personally, failing which execution would issue against him.
7. Upon default, warrants of proclamation, attachment and sale were issued. The Applicant then filed a Notice of Motion dated 15th September 2025 before the subordinate court challenging the warrants on the grounds that Directline Assurance Company Limited was not a party to the suit, had not signed the consent, and that execution against it was irregular and in excess of the statutory limit.
8. In a ruling delivered on 25th November 2025, Hon. T. M. Gesora, Chief Magistrate, dismissed that application. The learned magistrate held that the consent of 30th June 2025 was clear, had not been reviewed or set aside, and remained binding unless demonstrated to have been procured through fraud or misrepresentation. The present appeal challenges that ruling.
9. The immediate trigger for the present motion is that fresh warrants and proclamation were issued in February 2026 against property said to belong to Directline Assurance Company Limited at its Eldoret office, including photocopy machines, office cabinets, chairs, desks, computers and benches.
Parties' Positions
10. The Applicant contends that unless stay is granted, the appeal will be rendered nugatory because the proclaimed property will be sold before the appeal is heard. He argues that Directline Assurance Company Limited was not a party to the primary suit and did not execute the consent; that the prior deposit of Kshs. 1,531,165 should be treated as sufficient security; and that execution against the insurer would exceed the statutory limit of Kshs. 3,000,000.
11. The Respondent opposes the motion. She argues that the supporting affidavit is defective for want of a company resolution or authority; that Directline Assurance Company Limited has not sought joinder and cannot challenge the decree through the insured; that the consent was executed by counsel then on record for the Applicant and has not been set aside; and that no fraud, mistake, collusion or misrepresentation has been pleaded or proved.
12. The Respondent further contends that the decretal claim has been in court since 2019, that she is entitled to enjoy the fruits of her judgment, and that the earlier deposit of Kshs. 1,531,165 cannot be treated as security because it was released to her as part payment after the first appeal was determined.
Issues for Determination
13. Having considered the motion, the supporting affidavit, the replying affidavit, the rival submissions and the material placed before the Court, the issues for determination are whether the supporting affidavit is fatally defective; whether the Applicant has satisfied the requirements for stay of execution pending appeal; and what orders should issue.
Analysis
14. On the objection to the supporting affidavit, I note that the application is brought in the name of the Appellant/Applicant, who is a party to the proceedings. The impugned affidavit was sworn by a claims manager of the insurer in relation to matters concerning the insurer's handling of the claim, the consent, and the execution complained of. In the circumstances of this interlocutory application, I am not persuaded that the absence of a formal company resolution is, by itself, sufficient to strike out the affidavit or the motion. The objection goes to the weight of the evidence rather than to the competence of the application.
15. The applicable law is Order 42 rule 6(2) of the Civil Procedure Rules. A party seeking stay pending appeal must demonstrate that substantial loss may result unless the stay is granted, that the application has been made without unreasonable delay, and that such security as the court orders for the due performance of the decree or order has been given. The discretion is judicial and must balance the Applicant's right of appeal against the Respondent's right to enjoy the fruits of judgment.
16. On delay, the impugned ruling was delivered on 25th November 2025 and the present motion was filed on 6th February 2026. Taking into account the intervening period and the nature of the application, I am prepared to find that the motion was not filed after such unreasonable delay as would, by itself, defeat the application. That finding, however, does not dispense with the other requirements of Order 42 rule 6.
17. On substantial loss, the Applicant's case is anchored on the threatened sale of property said to belong to Directline Assurance Company Limited. Directline Assurance Company Limited is not the Appellant before this Court and has not sought to be joined as a party. Even assuming that the insurer's interest may be relevant because of the statutory and contractual relationship between insurer and insured, the Applicant has not laid evidence to show that the Respondent would be unable to refund any money paid if the appeal ultimately succeeds, or that execution of a money decree would occasion a loss that cannot be remedied by restitution.
18. The mere fact that execution may issue does not, without more, amount to substantial loss. The decree arises from a judgment delivered in 2021, an appeal determined in 2024, and a consent recorded in 2025. The impugned decree is a money decree, and the proclaimed items have not been shown to be unique or incapable of valuation. I therefore find that substantial loss has not been proved.
19. On security, the Applicant asks the Court to deem the previous deposit of Kshs. 1,531,165 as sufficient security for the present appeal. That prayer is not available on the material before the Court. The Applicant's own motion and supporting affidavit acknowledge that the Respondent withdrew that sum after the determination of Kericho HCCA No. E027 of 2021. The Respondent also confirms that the amount was released as part payment of the decree. A sum that has already been paid out to the decree-holder cannot, in practical or legal terms, stand as security for the due performance of the present decree or order. No fresh security has been offered.
20. The Court has also considered the nature of the intended appeal. The appeal attacks the ruling by which the subordinate court declined to interfere with execution founded upon the consent of 30th June 2025. A consent order has contractual effect and may only be set aside on grounds that would justify the setting aside of a contract, including fraud, collusion, mistake, misrepresentation or other sufficient cause. This principle is well stated in Flora N. Wasike v Destimo Wamboko [1982-88] 1 KAR 625, Hirani v Kassam (1952) 19 EACA 131 and Kenya Commercial Bank Ltd v Specialised Engineering Co. Ltd [1982] KLR 485.
21. In this case, the consent was executed by the Respondent's advocates and by M/s Kairu & McCourt Advocates, who were then on record for the Applicant. There is no affidavit from that firm stating that it lacked instructions, acted in error, or exceeded its authority. At this stage , it suffices to say that iam not convinced that the appeal is arguable. t
22. The argument on the statutory limit does not assist the Applicant at this stage. The material before the Court shows that Kshs. 1,531,165 had earlier been released to the Respondent, while the consent required Directline Assurance Company Limited to pay Kshs. 1,468,835. Those two principal sums amount to Kshs. 3,000,000. The additional sums complained of relate to interest and costs of execution. Whether those sums are ultimately recoverable may be canvassed in the appeal, but that contention does not cure the Applicant's failure to demonstrate substantial loss or to provide security.
23. The Respondent is a decree-holder whose claim has been pending since 2019. She obtained judgment in 2021, the appeal was determined in 2024, and the parties thereafter recorded a consent in 2025. To stay execution in the absence of proof of substantial loss, in the absence of available security, and without a demonstrated vitiating factor impeaching the consent would occasion prejudice to the Respondent and further delay her enjoyment of the fruits of judgment.
Disposition
24. In the result, I find that the Appellant/Applicant has not satisfied the requirements of Order 42 rule 6 of the Civil Procedure Rules and has not shown sufficient cause for the Court to exercise its discretion in favour of stay.
a. The Notice of Motion dated 6th February 2026 is dismissed.
c. The costs of the application are awarded to the Respondent.
d. Mention for directions on the appeal on 22.9.26.
.
T. A. ODERA
JUDGE
30.6.26
DATED, SIGNED AND DELIVERED VIRTUALLY VIA TEAMS PLATFORM ON THIS 30TH DAY OF JUNE 2026, IN THE PRESENCE OF COURT ASSISTANT BUSIENEI . PARTIES ABSENT .
1. The Appellant/Applicant filed the Notice of Motion dated 6th February 2026 brought under sections 3 and 3A of the Civil Procedure Act, Order 42 rule 6, Order 50 rule 5, Order 51 rules 1 and 3, and Order 22 rule 22 of the Civil Procedure Rules. The substantive prayers are for stay of execution of the decretal sum of Kshs. 1,468,835, interest of Kshs. 119,954, further costs of Kshs. 1,500 and collection fee of Kshs. 1,500, and also for stay of attachment, auction, sale and transfer of property proclaimed at Directline Assurance Company Limited's Eldoret office pending the hearing and determination of the appeal.
2. The Applicant further prays that the sum of Kshs. 1,531,165 previously deposited in a joint interest-earning account in Kericho HCCA No. E027 of 2021 be deemed sufficient security for the present appeal and that the balance of the decretal sum be held in abeyance. The motion is supported by the affidavit of Rayn Wendo, the Claims Manager of Directline Assurance Company Limited, sworn on 6th February 2026.
3. The Respondent opposed the application through the replying affidavit sworn on 4th March 2026 by Mr. David Nyakango Onyancha, learned counsel on record for the Respondent, and through written submissions.
Background
4. The record shows that judgment in Kericho CMCC No. 466 of 2019 was delivered on 7th September 2021 in favour of the Respondent for Kshs. 3,062,330 plus costs and interest. The Applicant appealed against that judgment in Kericho HCCA No. E027 of 2021 and deposited Kshs. 1,531,165 in a joint interest-earning account as security for that appeal.
5. On 1st February 2024, the High Court delivered judgment in Kericho HCCA No. E027 of 2021 in the sum of Kshs. 2,912,330 plus costs and interest. The Respondent thereafter withdrew the sum that had been held in the joint account as part satisfaction of the decree, the appeal having partly succeeded.
6. On 30th June 2025, a consent was recorded in the subordinate court. It provided that Directline Assurance Company Limited, the insurer, would pay Kshs. 1,468,835 to the decree-holder in three equal monthly instalments of Kshs. 489,612 with effect from 15th August 2025, and that, in default of any instalment, execution would issue for the outstanding sum together with accrued interest and costs of execution. The consent further provided that Kshs. 371,107 would be paid by the insured, Daniel Omari, personally, failing which execution would issue against him.
7. Upon default, warrants of proclamation, attachment and sale were issued. The Applicant then filed a Notice of Motion dated 15th September 2025 before the subordinate court challenging the warrants on the grounds that Directline Assurance Company Limited was not a party to the suit, had not signed the consent, and that execution against it was irregular and in excess of the statutory limit.
8. In a ruling delivered on 25th November 2025, Hon. T. M. Gesora, Chief Magistrate, dismissed that application. The learned magistrate held that the consent of 30th June 2025 was clear, had not been reviewed or set aside, and remained binding unless demonstrated to have been procured through fraud or misrepresentation. The present appeal challenges that ruling.
9. The immediate trigger for the present motion is that fresh warrants and proclamation were issued in February 2026 against property said to belong to Directline Assurance Company Limited at its Eldoret office, including photocopy machines, office cabinets, chairs, desks, computers and benches.
Parties' Positions
10. The Applicant contends that unless stay is granted, the appeal will be rendered nugatory because the proclaimed property will be sold before the appeal is heard. He argues that Directline Assurance Company Limited was not a party to the primary suit and did not execute the consent; that the prior deposit of Kshs. 1,531,165 should be treated as sufficient security; and that execution against the insurer would exceed the statutory limit of Kshs. 3,000,000.
11. The Respondent opposes the motion. She argues that the supporting affidavit is defective for want of a company resolution or authority; that Directline Assurance Company Limited has not sought joinder and cannot challenge the decree through the insured; that the consent was executed by counsel then on record for the Applicant and has not been set aside; and that no fraud, mistake, collusion or misrepresentation has been pleaded or proved.
12. The Respondent further contends that the decretal claim has been in court since 2019, that she is entitled to enjoy the fruits of her judgment, and that the earlier deposit of Kshs. 1,531,165 cannot be treated as security because it was released to her as part payment after the first appeal was determined.
Issues for Determination
13. Having considered the motion, the supporting affidavit, the replying affidavit, the rival submissions and the material placed before the Court, the issues for determination are whether the supporting affidavit is fatally defective; whether the Applicant has satisfied the requirements for stay of execution pending appeal; and what orders should issue.
Analysis
14. On the objection to the supporting affidavit, I note that the application is brought in the name of the Appellant/Applicant, who is a party to the proceedings. The impugned affidavit was sworn by a claims manager of the insurer in relation to matters concerning the insurer's handling of the claim, the consent, and the execution complained of. In the circumstances of this interlocutory application, I am not persuaded that the absence of a formal company resolution is, by itself, sufficient to strike out the affidavit or the motion. The objection goes to the weight of the evidence rather than to the competence of the application.
15. The applicable law is Order 42 rule 6(2) of the Civil Procedure Rules. A party seeking stay pending appeal must demonstrate that substantial loss may result unless the stay is granted, that the application has been made without unreasonable delay, and that such security as the court orders for the due performance of the decree or order has been given. The discretion is judicial and must balance the Applicant's right of appeal against the Respondent's right to enjoy the fruits of judgment.
16. On delay, the impugned ruling was delivered on 25th November 2025 and the present motion was filed on 6th February 2026. Taking into account the intervening period and the nature of the application, I am prepared to find that the motion was not filed after such unreasonable delay as would, by itself, defeat the application. That finding, however, does not dispense with the other requirements of Order 42 rule 6.
17. On substantial loss, the Applicant's case is anchored on the threatened sale of property said to belong to Directline Assurance Company Limited. Directline Assurance Company Limited is not the Appellant before this Court and has not sought to be joined as a party. Even assuming that the insurer's interest may be relevant because of the statutory and contractual relationship between insurer and insured, the Applicant has not laid evidence to show that the Respondent would be unable to refund any money paid if the appeal ultimately succeeds, or that execution of a money decree would occasion a loss that cannot be remedied by restitution.
18. The mere fact that execution may issue does not, without more, amount to substantial loss. The decree arises from a judgment delivered in 2021, an appeal determined in 2024, and a consent recorded in 2025. The impugned decree is a money decree, and the proclaimed items have not been shown to be unique or incapable of valuation. I therefore find that substantial loss has not been proved.
19. On security, the Applicant asks the Court to deem the previous deposit of Kshs. 1,531,165 as sufficient security for the present appeal. That prayer is not available on the material before the Court. The Applicant's own motion and supporting affidavit acknowledge that the Respondent withdrew that sum after the determination of Kericho HCCA No. E027 of 2021. The Respondent also confirms that the amount was released as part payment of the decree. A sum that has already been paid out to the decree-holder cannot, in practical or legal terms, stand as security for the due performance of the present decree or order. No fresh security has been offered.
20. The Court has also considered the nature of the intended appeal. The appeal attacks the ruling by which the subordinate court declined to interfere with execution founded upon the consent of 30th June 2025. A consent order has contractual effect and may only be set aside on grounds that would justify the setting aside of a contract, including fraud, collusion, mistake, misrepresentation or other sufficient cause. This principle is well stated in Flora N. Wasike v Destimo Wamboko [1982-88] 1 KAR 625, Hirani v Kassam (1952) 19 EACA 131 and Kenya Commercial Bank Ltd v Specialised Engineering Co. Ltd [1982] KLR 485.
21. In this case, the consent was executed by the Respondent's advocates and by M/s Kairu & McCourt Advocates, who were then on record for the Applicant. There is no affidavit from that firm stating that it lacked instructions, acted in error, or exceeded its authority. At this stage , it suffices to say that iam not convinced that the appeal is arguable. t
22. The argument on the statutory limit does not assist the Applicant at this stage. The material before the Court shows that Kshs. 1,531,165 had earlier been released to the Respondent, while the consent required Directline Assurance Company Limited to pay Kshs. 1,468,835. Those two principal sums amount to Kshs. 3,000,000. The additional sums complained of relate to interest and costs of execution. Whether those sums are ultimately recoverable may be canvassed in the appeal, but that contention does not cure the Applicant's failure to demonstrate substantial loss or to provide security.
23. The Respondent is a decree-holder whose claim has been pending since 2019. She obtained judgment in 2021, the appeal was determined in 2024, and the parties thereafter recorded a consent in 2025. To stay execution in the absence of proof of substantial loss, in the absence of available security, and without a demonstrated vitiating factor impeaching the consent would occasion prejudice to the Respondent and further delay her enjoyment of the fruits of judgment.
Disposition
24. In the result, I find that the Appellant/Applicant has not satisfied the requirements of Order 42 rule 6 of the Civil Procedure Rules and has not shown sufficient cause for the Court to exercise its discretion in favour of stay.
a. The Notice of Motion dated 6th February 2026 is dismissed.
c. The costs of the application are awarded to the Respondent.
d. Mention for directions on the appeal on 22.9.26.
.
T. A. ODERA
JUDGE
30.6.26
DATED, SIGNED AND DELIVERED VIRTUALLY VIA TEAMS PLATFORM ON THIS 30TH DAY OF JUNE 2026, IN THE PRESENCE OF COURT ASSISTANT BUSIENEI . PARTIES ABSENT .