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JudgmentDarius M. Oyaro VS Agripina Wakiriro Mwangombe3 min read

Darius M. Oyaro VS Agripina Wakiriro Mwangombe

High Court at Voi High Court · · George. Dulu


  1. Before me is an application by way of Notice of Motion dated 13th October 2023 through counsel Kimondo Gachoka & Company under Section 1A, 1B, 3 and 3A, 79G of the Civil Procedure Act, and Order 22, Order 42 Rule 6, Order 50 Rule 6, and Order 51 Rule 1 & 3 of the Civil Procedure Rules.
  2. The prayers in the application are that:-
  3. (Spent).
  4. (Spent).
  5. (Spent).
  6. That the court be pleased to stay execution and proceedings of the judgment from Wundanyi Civil Suit No. E045 of 2021 pending hearing and determination of this appeal herein.
  7. That the costs of this application abide the outcome of the appeal.
  8. The application has grounds on the face of the Notice of Motion that the application arises from a judgment in Wundanyi PMCC No. E045 of 2021 delivered on 11th September 2023; that the applicant has now filed the present appeal No. E048 of 2023; and that the applicant will suffer substantial loss if the stay orders sought are not granted as the respondent might not be able to refund the decretal amount if the appeal succeeds.
  9. The application was filed with a supporting affidavit sworn on 13th October 2023 by Darius M. Oyaro the applicant herein which amplifies the grounds.  Annexed to the affidavit is a copy of the Memorandum of Appeal.
  10. The application was canvassed through written submissions.  I have perused and considered the submissions filed by Kimondo Gachoka & Company Advocates for the applicant as well as the submissions filed by Njoroge Mwangi & Company Advocates for the respondent.

  1. I note that the respondent’s counsel has submitted strongly that the respondent is a successful litigant who is entitled to enjoy the fruits of her lawful judgment.
  2. Such application for stay of execution of judgment or decree pending appeal are governed by the provisions of Order 42 Rule 6 of the Civil Procedure Rules.  In particular, Rule 6(2) provides as follows:-

6(2) No order for stay of execution shall be made under sub rule (1) unless:-

  1. The court is satisfied that substantial loss may result to the applicant unless the order is made and that the application has been made without unreasonable delay; and
  2. Such security as the court orders for the due performance of such decree or order as may ultimately be binding on him has been given by the applicant. 
  3. The judgment herein was delivered on 11th September 2023.  This application was filed on 16th October 2023.  In my view, the application was filed without unreasonable delays.
  4. Is the applicant likely to suffer substantial loss or prejudice if the stay orders sought are not granted?  This is a money decree.  The grounds of appeal are primarily on quantum of damages.  In those circumstances, I find that the applicant will suffer substantial prejudice only if no stay orders are granted for the whole amount of decree.  However, in my view, if the stay order is granted for a reasonable amount of the award, the applicant will not suffer prejudice.  I will thus order payment of part of the decretal amount, as a condition for granting stay orders.
  5. With regard to provision of security, the applicant has offered to provide a bank guarantee.  In my view however, the part of the decretal amount to be paid by the applicant will be adequate security. 
  6. Consequently and for the above reasons, I allow the application in the following terms:-
  7. Stay of execution of judgment or decree herein is granted pending determination of appeal.
  8. The stay orders above are subject to the applicant paying to the respondent through counsel part of the decretal amount of Kshs. 70,000/= within 45 days from today.
  9. If the applicant defaults to comply with (b) above, the stay orders herein granted will automatically lapse and be of no effect.
  10. Costs of the application will abide the decision of the appeal.

Dated, signed and delivered this 25th day of April 2024 in open court at Voi virtually.

In the presence of:-

Alfred – Court Assistant

Mr. Njiru holding brief for Rasanga for appellant

Mr. Kazungu for respondent

    Darius M. Oyaro VS Agripina Wakiriro Mwangombe Darius M. Oyaro VS Agripina Wakiriro Mwangombe