1. The Appellant seeks a stay of execution of the judgment delivered on 20th August 2025 against the Respondent on various grounds set out in the supporting affidavit of Nicholus Ngoli Inyangala, sworn on 25th November 2025. The deponent, the Sales Manager of the Appellant, deposes that the Appellant entered into a hire purchase agreement dated 1st April 2025 with the Respondent. He further narrates the circumstances leading to the suit before the trial court, where the court held that since the Appellant had repossessed the subject motor vehicle registration number KDD 176B, the Respondent was entitled to a refund of his deposit less Kshs. 50,000 for wear and tear during his possession.
It is further deponed that the Respondent paid a deposit of Kshs. 200,000 and was to pay a balance of Kshs. 1,000,000. The deponent also states that the subject motor vehicle was impounded and detained by the police during the Respondent’s possession for reasons which have not been disclosed.
In demonstrating urgency, the Appellant produced Warrants of Attachment and a Proclamation dated 13th October 2025 and 15th October 2025 respectively, indicating that the Respondent’s auctioneers intend to recover Kshs. 233,000 by attaching motor vehicle registration number KDD 320M or any other motor vehicle in the Appellant’s possession. The Appellant contends that it does not have possession of the subject motor vehicle and stands to suffer substantial loss unless the orders sought are granted.
2. The Application was served upon counsel for the Respondent in the trial court, as evidenced by the affidavit of service sworn by Ngundo Mulevu on 3rd December 2025. Despite service, no response was filed. The Court therefore deems the Application unopposed.
In Gideon Sitela Konchellah v Julius Lekakeny Ole Sunkuli & Others (2018) eKLR , the Court held that:
“It is not automatic that for any unopposed application the court will as a matter of course grant the sought orders. It behoves the court to be satisfied that prima facie, with no objection, the application is meritorious and the prayers may be granted. The court is under a duty to look at the application and without making any inferences on facts, point out any points of law, such as any jurisdictional impediment, which might render the application a non-starter.”
3. The issue for determination is whether the Appellant has met the threshold for grant of stay of execution. Stay of execution pending appeal is governed by Order 42 Rule 6 of the Civil Procedure Rules. The Court is guided by the decision in James Wangalwa & Another v Agnes Naliaka Cheseto [2012] eKLR , where it was held that:
“The granting of stay of execution pending appeal by the High Court is governed by Order 42 Rule 6 of the Civil Procedure Rules. It is grantable at the discretion of the Court on sufficient cause being established by the applicant. The legal burden of proof lies with the applicant…”
The Court further stated that an applicant must demonstrate that:
a) Substantial loss may result unless the order is granted;b) The application has been made without unreasonable delay; andc) Such security as the Court may order has been provided.
4. The burden of satisfying the above conditions lies with the Appellant. In the present case, the Appellant has demonstrated, on a prima facie basis, the likelihood of substantial loss.
In Wangalwa v Cheseto (supra) , the Court defined substantial loss as follows:
“The applicant must establish other factors which show that execution will create a state of affairs that will irreparably affect or negate the very essence of the appeal…”
The Court emphasized that substantial loss is the cornerstone of jurisdiction in applications for stay of execution.
5. In the circumstances of this case, unless a stay is granted, the appeal may be rendered nugatory. It is therefore necessary to preserve the subject matter pending the determination of the appeal. Accordingly, the Court finds merit in the Application and exercises its discretion in favour of the Given that the Respondent did not participate in these proceedings, there shall be no order as to costs.
6. It is so ordered.
DATED, SIGNED AND DELIVERED IN OPEN COURT / ONLINE THROUGH MS TEAMS THIS …23… DAY OF …FEB…… 2026.
HON. LADY JUSTICE W. K. MICHENI
JUDGE
It is further deponed that the Respondent paid a deposit of Kshs. 200,000 and was to pay a balance of Kshs. 1,000,000. The deponent also states that the subject motor vehicle was impounded and detained by the police during the Respondent’s possession for reasons which have not been disclosed.
In demonstrating urgency, the Appellant produced Warrants of Attachment and a Proclamation dated 13th October 2025 and 15th October 2025 respectively, indicating that the Respondent’s auctioneers intend to recover Kshs. 233,000 by attaching motor vehicle registration number KDD 320M or any other motor vehicle in the Appellant’s possession. The Appellant contends that it does not have possession of the subject motor vehicle and stands to suffer substantial loss unless the orders sought are granted.
2. The Application was served upon counsel for the Respondent in the trial court, as evidenced by the affidavit of service sworn by Ngundo Mulevu on 3rd December 2025. Despite service, no response was filed. The Court therefore deems the Application unopposed.
In Gideon Sitela Konchellah v Julius Lekakeny Ole Sunkuli & Others (2018) eKLR , the Court held that:
“It is not automatic that for any unopposed application the court will as a matter of course grant the sought orders. It behoves the court to be satisfied that prima facie, with no objection, the application is meritorious and the prayers may be granted. The court is under a duty to look at the application and without making any inferences on facts, point out any points of law, such as any jurisdictional impediment, which might render the application a non-starter.”
3. The issue for determination is whether the Appellant has met the threshold for grant of stay of execution. Stay of execution pending appeal is governed by Order 42 Rule 6 of the Civil Procedure Rules. The Court is guided by the decision in James Wangalwa & Another v Agnes Naliaka Cheseto [2012] eKLR , where it was held that:
“The granting of stay of execution pending appeal by the High Court is governed by Order 42 Rule 6 of the Civil Procedure Rules. It is grantable at the discretion of the Court on sufficient cause being established by the applicant. The legal burden of proof lies with the applicant…”
The Court further stated that an applicant must demonstrate that:
a) Substantial loss may result unless the order is granted;b) The application has been made without unreasonable delay; andc) Such security as the Court may order has been provided.
4. The burden of satisfying the above conditions lies with the Appellant. In the present case, the Appellant has demonstrated, on a prima facie basis, the likelihood of substantial loss.
In Wangalwa v Cheseto (supra) , the Court defined substantial loss as follows:
“The applicant must establish other factors which show that execution will create a state of affairs that will irreparably affect or negate the very essence of the appeal…”
The Court emphasized that substantial loss is the cornerstone of jurisdiction in applications for stay of execution.
5. In the circumstances of this case, unless a stay is granted, the appeal may be rendered nugatory. It is therefore necessary to preserve the subject matter pending the determination of the appeal. Accordingly, the Court finds merit in the Application and exercises its discretion in favour of the Given that the Respondent did not participate in these proceedings, there shall be no order as to costs.
6. It is so ordered.
DATED, SIGNED AND DELIVERED IN OPEN COURT / ONLINE THROUGH MS TEAMS THIS …23… DAY OF …FEB…… 2026.
HON. LADY JUSTICE W. K. MICHENI
JUDGE