REPUBLIC OF KENYA
IN THE HIGH COURT AT MACHAKOS
CIVIL APPEAL NO E112 OF 2024
DAVD MBAI KIWA ................................................................................APPELLANT
VERSUS
MOHAMED MWAMBOA MWAKULOMBA .........................................RESPONDENT
RULING
1. This ruling is on the Appellants/Applicants’ application by way of Notice of Motion dated 16th April 2024 seeking for orders:
a) Spent
b) TAT there be a stay of execution of the judgement delivered by Honourable B. A Luova delivered on the 4th April 2024 In MACHAKOS SCC E017 OF 2024 and any consequent decree thereon pending the hearing and determination of this Application.
c) THAT there be a stay of Execution of the judgment delivered by Honourable B. A Luova delivered in MACHAKOS SCC EO 17 OF 2024 and any consequent decree thereon pending the hearing and determination of the Appeal.
d) THAT costs of this application be provided for.
2. The application is supported by the supporting affidavit of Timbwa Grace sworn on 16th April 2024 and which application is premised on the grounds on the face of the application as follows:
a) The Respondent has moved the lower court seeking for a Decree to be issued with intention to proceed with execution.
b) The Respondent's Counsel has advised the Applicant through an email dated 8th April 2024 of their intention to proceed with execution immediately upon lapse of the stay period
c) The Applicant/Appellant being aggrieved by the Court's decision on the assessment on liability at 100% against the Appellant and award of General damages of Kshs.460,000 and Special damages of Kshs.5,550/ = for the Respondent duly instructed their Advocates on record to proceed and file an Appeal against that decision.
d) The Applicant/Appellant has an arguable appeal which raises serious questions of law and fact.
e) The Respondent is person of unknown means and that the Applicant is apprehensive that if the decretal sum is paid out, then the appeal if successful would be rendered academic in nature.
f) The Applicant's insurer is ready and willing to give security for the decretal amount as per the courts discretion as a condition for stay of execution.
3. In opposition to the said application, the Respondent Mohamed Mwamboa Mwakulomba filed a replying affidavit and sought for Applicant’s notice of motion to be dismissed for reasons that;
a) The judgement entered in the lower court suit was on account of admission to facts by the Appellant as highlighted by Hon. Luova under paragraph 15 of the judgment.
b) The averments made by the deponing Advocate with regards to substantial loss amounts to hearsay and thus has the Appellant/Applicant has immensely failed to prove and/or establish the substantial loss he is likely to suffer if the Orders sought are not granted.
c) No security for due performance of the decree has been provided. A mere inference of will to provide security does not amount to security.
d) The Respondent is ready to provide a bank guarantee for the decretal sum to confirm that I am of means to refund the decretal sum in the likely event the Appeal is successful.
4. The Respondent contends that this application has been brought with the sole intention of denying him from enjoying the fruits of his lawfully obtained judgement.
5. Directions were given for the application to be canvassed through written submissions. The Applicant’s submissions are dated 05/06/2025 whilst the Respondent’s submissions are dated 18/09/2025.
Analysis and Determination
6. I have carefully perused and considered the application, the supporting affidavit, the replying affidavit and the Parties’ Counsel submissions as well as the judicial decisions relied upon. In my view, the issues for determination are as follows:-
a. Whether the Applicant/Appellant has met the criteria for grant of orders of stay pending Appeal.
b. Who shall bear costs of the application?
a. Whether the Applicant/Appellant has met the criteria for grant of orders of stay pending Appeal.
7. The law relating to stay pending Appeal is Order 42 Rule 6 (2). It is also important to state that the power to grant an order of stay is discretionary and is dependent on certain conditions being met.
8. Order 42 rule 6(1) and (2) of the Civil Procedure Rules,2010 provides as follows:
“(1) No appeal or second appeal shall operate as a stay of execution or proceeding under a decree or order appealed from except in so far as the court appealed from may order but, the court appealed from may for sufficient cause order stay of execution of such decree or order, and whether the application for such stay shall have been granted or refused by the court appealed from, the court to which such appeal is preferred shall be at liberty, on application being made, to consider such application and to make such order thereon as may to it seem just, and any person aggrieved by an order of stay made by the court from whose decision the appeal is preferred may apply to the appellate court to have such order set aside.
(2) No order for stay of execution shall be made under subrule (1) unless –
(a) 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
(b) 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.”
9. In Vishram Ravji Halai vs. Thornton & Turpin Civil Application No. Nai. 15 of 1990 [1990] KLR 365, the Court of Appeal held that whereas the Court of Appeal’s power to grant a stay pending appeal is unfettered, the High Court’s jurisdiction to do so under Order 41 rule 6 of the Civil Procedure Rules is fettered by three conditions namely:
(i) establishment of a sufficient cause,
(ii) satisfaction of substantial loss and
(iii) the furnishing of security.
Further the application must be made without unreasonable delay.
10. In Butt Vs. Rent Restriction Tribunal [1979], the Court of Appeal gave pointers on what ought to be considered in determining whether to grant or refuse stay of execution pending appeal. The court stated thus:
i. The power of the court to grant or refuse an application for a stay of execution is a discretionary, and the discretion should be exercised in such a way as not to prevent an Appeal.
ii. The general principle 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 the Appeal court reverse the judge’s discretion.
iii. Thirdly, 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. Finally, 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.
11. On the first criterion as set out in Order 42 Rule 6 (2) i.e. Whether Applicant/Appellant has brought this application without unreasonable delay. The Judgement was delivered on 04/04/2024. The Memorandum of Appeal dated 12/04/2024 and the instant application dated 16/04/2024 were filed in court on 17/04/2024, which was within the 30 days span of filing an appeal. In the circumstances, I find that application has been brought without unreasonable delay.
12. On second criterion is whether the Applicant/Appellant has demonstrated that he is bound to suffer substantial loss if orders of stay of execution are not granted. The question that follows is what comprises substantial loss. In Silverstein Vs Chesoni (2002)1 KLR 867 it was held that
“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”
5. The Appellant/Applicant has deposed that he stands to be greatly prejudiced and will suffer substantial loss and damage if execution were to issue in respect of the judgment herein. That the appeal is arguable with high chances of success as the court erroneously assessed liability and awarded a colossal sum for General & Special damages compared to the injuries suffered by the Respondent. Lastly that the Respondent is person of unknown means and that the Applicant is apprehensive that if the decretal sum is paid out, then the appeal if successful would be rendered academic in nature.
6. That the order for stay is desirable so that the Appellant/Applicant may have his appeal heard in Court. If the decretal sum is released to the Respondent and the subsequent appeal allowed, where the financial capability of the Respondent is unknown then the Applicant stands to suffer loss.
7. The court is under a duty to hold the rings of justice even handed; it should not offer any illegitimate advantage to either party. The Appellant/Applicant appeals to this Honourable Court to grant the order of stay to enable the Applicant an opportunity to be heard on its Appeal.
8. In James Wangalwa & Another vs. Agnes Naliaka Cheseto [2012] eKLR, it was held that:
"No doubt, in law, the fact that the process of execution has been put in motion, or is likely to be put in motion, by itself, does not amount to substantial loss. Even when execution has been levied and completed the attached properties have been sold, as is the case here, does not in itself amount to substantial loss under Order 42 Rule 6 of the CPR. This is so because execution is a lawful process. The applicant must establish other factors which show that the execution will create a situation that will irreparably affect or negate the very essential core of the applicant as the successful party in the appeal ... the issue of substantial loss is the cornerstone of both jurisdictions. Substantial loss is what must be prevented by preserving the status quo because such loss would render the appeal nugatory."
9. In response to the Applicant’s assertions on the 1st Respondent’s inability to refund the decretal sum if released to him, the Respondent argued that it is the Appellant/Applicant the Appellants/Applicants have to demonstrate that fact. The Respondent stated that he is ready to provide a bank guarantee for the decretal sum to confirm that I am of means to refund the decretal sum in the likely event the Appeal is successful.
10. The Appellant/Applicant had a duty to demonstrate facts, and not merely to allege that the Respondent's means are unknown. Indeed, on a similar issue in ISAAC MUTETI KISUA -VS - FELIX MWANGI NDEGWA [2016] eKLR the Court rendered itself thus:
“This Court finds that the Applicant from the reading of the above quoted provisions has the burden to demonstrate that he would suffer "substantial loss" and not just loss unless stay of execution is granted. I am not convinced that the burden of demonstrating financial means is the other way round as submitted by the Applicant. Looking at the authorities quoted, especially by the Respondent and the provisions of the quoted rules it is clear that an applicant has a duty to demonstrate that a substantial loss may result to him/her unless an order of stay is made”.
11. Similarly, in SOCFINAC COMPANY LIMITED -VS- NELPHAT KIMOTHO MUTURI [2013] eKLR Odunga J, held as follows:
The appellant's belief that the respondent will be unable to repay the same is solely based on the appellant's lack of knowledge as to the respondent's financial ability or capability. In my view, the mere fact that an appellant does not know the respondent's financial capability does not give rise to the presumption that the respondent will be unable to repay the sum. There must be other factors that lead to that presumption. On the material before the court. I am not satisfied that the appellant has shown that it stands to suffer substantial loss if the stay sought is not granted.
12. Further, Radido J at paragraphs 16 - 18 in VAN DEN BERG (K) LIMITED VS- CHARLES OSEWE OSODO [2015] eKLR rendered himself thus:
“ 16. I have carefully perused the supporting affidavit sworn by Isaac M. Wamaasa and I have not been able to decipher what substantial loss the Appellant would suffer if stay were not grant.
17. The closest contention is that the Respondent is a man of straw who has not demonstrated that he could refund the decretal sum. 18. The position as urged by the Appellant on this point cannot be correct. It is not a burden placed upon decree holders to prove that they can refund the decretal sum. It is the appellant who alleges that the decree holder is a man of straw to demonstrate that fact.
13. In granting an order of stay of execution, the court should not be seen to interfere with a party's enjoyment of the fruit of the judgment. See the case of Stephen Wanjohi vs. Central Glass Industries Ltd. Nairobi HCCC No.6726 of 1991 where the court stated as follows: -
"The financial ability of a decree-holder solely is not a reason for allowing stay, it is enough that the decree-holder is not a dishonourable miscreant without any form of income. Suffice to state that the respondent, at this moment, is the successful party and in order to deny him the fruits of his success, it is upon the applicant to prove that he is unlikely to make good whatever sum he may have received in the meantime."
14. The loss the Appellant has alluded to is that the appeal herein will be rendered nugatory should the stay order be declined. It is my considered view that this being a monetary claim, any loss to be suffered by either party can adequately be compensated by an award in damages. The Applicant has not shown by evidence through an affidavit that the Respondent is incapable of refunding the decretal sums should the appeal succeed.
15. On the third criterion where the Applicant/Appellant must furnish security for the due performance of the decree. I am fully aware that the court has a delicate task of balancing the interests of both the Appellant and the Respondent. The Appellant who seek to preserve the status quo pending the hearing of the Appeal so that his Appeal is not rendered nugatory and the interest of the Respondent who is seeking to enjoy the fruits of his judgement. It is true that under Order 42 rule 6 aforesaid, the Applicant is required to offer security for the due performance of the decree and the Court is entitled to take into account the fact that no such security has been offered in deciding an application thereunder. I agree with the position in Mwaura Karuga t/a Limit Enterprises .vs. Kenya Bus Services Ltd & 4 Others [2015] eKLR, where it was held that:
“… the security must be one which shall achieve due performance of the decree which might ultimately be binding on the applicant. The rule does not, therefore, envisage just any security. The words ‘’ultimately be binding’ are deliberately used and are useful here, for they refer to the entire decree as will be payable at the time the appeal is lost. That is the presumption of law here. Therefore, the ultimate decree envisaged under order 42 rule 6 (2) (b) of the Civil Procedure Rules includes costs and interest on the judgment sum unless the latter two were not granted-which is seldom. The security to be given is measured on that yardstick.”
16. I also associate myself with the holding in Gianfranco Manenthi & another vs. Africa Merchant Assurance Company Ltd [2019] eKLR, where the court observed:
“… the applicant must show and meet the condition of payment of security for due performance of the decree. Under this condition a party who seeks the right of appeal from money decree of the lower court for an order of stay must satisfy this condition on security. In this regard, the security for due performance of the decree under order 42 rule 6(1) of the Civil Procedure Rules, it is trite that the winner of litigation should not be denied the opportunity to execute the degree in order to enjoy the fruits of his judgment in case the appeal fails.
Further, order 42 should be seen from the point of view that a debt is already owed and due for payment to the successful litigant in a litigation before a court which has delivered the matter in his favour. This is therefore to provide a situation for the court that if the appellant fails to succeed on appeal there could be no return to status quo on the part of the plaintiff to initiate execution proceedings where the judgement involves a money decree. The court would order for the release of the deposited decretal amount to the respondent in the appeal … This the objective of the legal provisions on security was never intended to fetter the right of appeal. It was also put in place to ensure that courts do not assist litigants to delay execution of decrees through filing vexatious and frivolous appeals. In any event, the issue of deposit of security for due performance of decree is not a matter of willingness by the applicant but for the court to determine.”
17. The law is that where the Applicant intends to exercise its undoubted right of appeal, and in the event, it were eventually to succeed it should not be faced with a situation in which it would find itself unable to get back its money. Likewise, the Respondent who has a decree in his favour should not, if the applicant were eventually to be unsuccessful in its intended appeal, find it difficult or impossible to realize the decree. This is the cornerstone of the requirement for security. The issue of adequacy of security was dealt with by the Court of Appeal in Nduhiu Gitahi vs. Warugongo [1988] KLR 621; 1 KAR 100; [1988-92] 2 KAR 100 where the Court of Appeal expressed itself as follows:
“The process of giving security is one, which arises constantly. So long as the opposite party can be adequately protected, it is right and proper that security should be given in a way, which is least disadvantageous to the party giving the security. It may take many forms. Bank guarantee and payment into court are but two of them. So long as it is adequate, then the form of it is a matter, which is immaterial. In an application for stay pending appeal the court is faced with a situation where judgement has been given. It is subject to appeal. It may be affirmed or it may be set aside. The court is concerned with preserving the rights of both parties pending that appeal. It is not the function of the court to disadvantage the defendant while giving no legitimate advantage to the plaintiffs. It is the duty of the court to hold the ring even-handedly without prejudicing the issue pending the appeal. For that purpose, it matters not whether the plaintiffs are secured in one way rather than another. It would be easier for the defendants or if for any reason they would prefer to provide security by a bank guarantee rather than cash. There is absolutely no reason in principle why they should not do so. The aim of the court in this case was to make sure, in an even-handed manner, that the appeal would not be prejudiced and that the decretal sum would be available if required. The respondent is not entitled, for instance, to make life difficult for the applicant, so as to tempt him into settling the appeal. Nor will either party lose if the sum is actually paid with interest at court rates. Indeed, in this case there is less need to protect the defendant because nearly half the sum will have been paid and the balance was at one stage open to negotiation to reduce it”.
18. The Applicant has averred in the supporting affidavit that his Insurer is willing to offer security for the decretal amount as per the courts discretion as a condition for stay of execution pending the hearing and determination of the intended appeal.
19. I find that the Applicant has not satisfying the legal requirement for security for costs as he is relying on a person who is not a party to these proceedings to offer security. There is nothing to show any commitment by the said Insurer third person to offer security as alleged by the Applicant.
b) Who should bear the cost of this application?
20. On the question of costs of the application, the general rule is that costs shall follow the event in accordance with the provisions of Section 27 of the Civil Procedure Act (Cap. 21). A successful party should ordinarily be awarded costs of an action unless the court, for good reason, directs otherwise. See Jasbir Singh Rai & 3 Others Vs Tarlochan Singh Rai & 4 others SC. Petition No. 4 of 2012: [2014] eKLR. The Supreme Court held that costs follow the event and that the Court has the discretion in awarding such costs.
21. Taking all the above factors into account and in order not to render the intended appeal nugatory as well as to give effect to the overriding objective of the Civil Procedure Act, I will reluctantly allow the application dated 16th April 2024 and in the interest of administration of justice direct that the appeal must be fast-tracked, heard and determined on its merits. Consequently, I make the following orders:
a. I hereby allow the Appellant/Applicant’s application dated 16th April 2024 and grant stay of Execution of the judgment delivered by Honourable B. A Luova delivered in MACHAKOS SCC EO17 OF 2024 and any consequent decree thereon pending the hearing and determination of the Appeal.
b. The Applicant shall deposit the entire decretal sum into a joint interest earning bank account to be opened in the names of Parties’ Advocates on record within Forty-Five (45) days of this Ruling.
c. That failure by the Appellant/Applicant to comply with Order in (b) the Respondents will be at liberty to execute.
d. The Appellant shall file and serve a record of appeal within Sixty (60) days of this ruling failure to which the appeal will stand dismissed.
c. Costs shall be in the appeal;
d. A mention date to be fixed for directions on the disposal of the appeal.
It is so ordered.
RULING WRITTEN, DATED & SIGNED AT MACHAKOS THIS 30TH JANUARY 2026
NOEL I. ADAGI
JUDGE
DELIVERED VIRTUALLY ON TEAMS AT MACHAKOS THIS 30TH JANUARY 2026
IN THE HIGH COURT AT MACHAKOS
CIVIL APPEAL NO E112 OF 2024
DAVD MBAI KIWA ................................................................................APPELLANT
VERSUS
MOHAMED MWAMBOA MWAKULOMBA .........................................RESPONDENT
RULING
1. This ruling is on the Appellants/Applicants’ application by way of Notice of Motion dated 16th April 2024 seeking for orders:
a) Spent
b) TAT there be a stay of execution of the judgement delivered by Honourable B. A Luova delivered on the 4th April 2024 In MACHAKOS SCC E017 OF 2024 and any consequent decree thereon pending the hearing and determination of this Application.
c) THAT there be a stay of Execution of the judgment delivered by Honourable B. A Luova delivered in MACHAKOS SCC EO 17 OF 2024 and any consequent decree thereon pending the hearing and determination of the Appeal.
d) THAT costs of this application be provided for.
2. The application is supported by the supporting affidavit of Timbwa Grace sworn on 16th April 2024 and which application is premised on the grounds on the face of the application as follows:
a) The Respondent has moved the lower court seeking for a Decree to be issued with intention to proceed with execution.
b) The Respondent's Counsel has advised the Applicant through an email dated 8th April 2024 of their intention to proceed with execution immediately upon lapse of the stay period
c) The Applicant/Appellant being aggrieved by the Court's decision on the assessment on liability at 100% against the Appellant and award of General damages of Kshs.460,000 and Special damages of Kshs.5,550/ = for the Respondent duly instructed their Advocates on record to proceed and file an Appeal against that decision.
d) The Applicant/Appellant has an arguable appeal which raises serious questions of law and fact.
e) The Respondent is person of unknown means and that the Applicant is apprehensive that if the decretal sum is paid out, then the appeal if successful would be rendered academic in nature.
f) The Applicant's insurer is ready and willing to give security for the decretal amount as per the courts discretion as a condition for stay of execution.
3. In opposition to the said application, the Respondent Mohamed Mwamboa Mwakulomba filed a replying affidavit and sought for Applicant’s notice of motion to be dismissed for reasons that;
a) The judgement entered in the lower court suit was on account of admission to facts by the Appellant as highlighted by Hon. Luova under paragraph 15 of the judgment.
b) The averments made by the deponing Advocate with regards to substantial loss amounts to hearsay and thus has the Appellant/Applicant has immensely failed to prove and/or establish the substantial loss he is likely to suffer if the Orders sought are not granted.
c) No security for due performance of the decree has been provided. A mere inference of will to provide security does not amount to security.
d) The Respondent is ready to provide a bank guarantee for the decretal sum to confirm that I am of means to refund the decretal sum in the likely event the Appeal is successful.
4. The Respondent contends that this application has been brought with the sole intention of denying him from enjoying the fruits of his lawfully obtained judgement.
5. Directions were given for the application to be canvassed through written submissions. The Applicant’s submissions are dated 05/06/2025 whilst the Respondent’s submissions are dated 18/09/2025.
Analysis and Determination
6. I have carefully perused and considered the application, the supporting affidavit, the replying affidavit and the Parties’ Counsel submissions as well as the judicial decisions relied upon. In my view, the issues for determination are as follows:-
a. Whether the Applicant/Appellant has met the criteria for grant of orders of stay pending Appeal.
b. Who shall bear costs of the application?
a. Whether the Applicant/Appellant has met the criteria for grant of orders of stay pending Appeal.
7. The law relating to stay pending Appeal is Order 42 Rule 6 (2). It is also important to state that the power to grant an order of stay is discretionary and is dependent on certain conditions being met.
8. Order 42 rule 6(1) and (2) of the Civil Procedure Rules,2010 provides as follows:
“(1) No appeal or second appeal shall operate as a stay of execution or proceeding under a decree or order appealed from except in so far as the court appealed from may order but, the court appealed from may for sufficient cause order stay of execution of such decree or order, and whether the application for such stay shall have been granted or refused by the court appealed from, the court to which such appeal is preferred shall be at liberty, on application being made, to consider such application and to make such order thereon as may to it seem just, and any person aggrieved by an order of stay made by the court from whose decision the appeal is preferred may apply to the appellate court to have such order set aside.
(2) No order for stay of execution shall be made under subrule (1) unless –
(a) 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
(b) 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.”
9. In Vishram Ravji Halai vs. Thornton & Turpin Civil Application No. Nai. 15 of 1990 [1990] KLR 365, the Court of Appeal held that whereas the Court of Appeal’s power to grant a stay pending appeal is unfettered, the High Court’s jurisdiction to do so under Order 41 rule 6 of the Civil Procedure Rules is fettered by three conditions namely:
(i) establishment of a sufficient cause,
(ii) satisfaction of substantial loss and
(iii) the furnishing of security.
Further the application must be made without unreasonable delay.
10. In Butt Vs. Rent Restriction Tribunal [1979], the Court of Appeal gave pointers on what ought to be considered in determining whether to grant or refuse stay of execution pending appeal. The court stated thus:
i. The power of the court to grant or refuse an application for a stay of execution is a discretionary, and the discretion should be exercised in such a way as not to prevent an Appeal.
ii. The general principle 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 the Appeal court reverse the judge’s discretion.
iii. Thirdly, 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. Finally, 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.
11. On the first criterion as set out in Order 42 Rule 6 (2) i.e. Whether Applicant/Appellant has brought this application without unreasonable delay. The Judgement was delivered on 04/04/2024. The Memorandum of Appeal dated 12/04/2024 and the instant application dated 16/04/2024 were filed in court on 17/04/2024, which was within the 30 days span of filing an appeal. In the circumstances, I find that application has been brought without unreasonable delay.
12. On second criterion is whether the Applicant/Appellant has demonstrated that he is bound to suffer substantial loss if orders of stay of execution are not granted. The question that follows is what comprises substantial loss. In Silverstein Vs Chesoni (2002)1 KLR 867 it was held that
“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”
5. The Appellant/Applicant has deposed that he stands to be greatly prejudiced and will suffer substantial loss and damage if execution were to issue in respect of the judgment herein. That the appeal is arguable with high chances of success as the court erroneously assessed liability and awarded a colossal sum for General & Special damages compared to the injuries suffered by the Respondent. Lastly that the Respondent is person of unknown means and that the Applicant is apprehensive that if the decretal sum is paid out, then the appeal if successful would be rendered academic in nature.
6. That the order for stay is desirable so that the Appellant/Applicant may have his appeal heard in Court. If the decretal sum is released to the Respondent and the subsequent appeal allowed, where the financial capability of the Respondent is unknown then the Applicant stands to suffer loss.
7. The court is under a duty to hold the rings of justice even handed; it should not offer any illegitimate advantage to either party. The Appellant/Applicant appeals to this Honourable Court to grant the order of stay to enable the Applicant an opportunity to be heard on its Appeal.
8. In James Wangalwa & Another vs. Agnes Naliaka Cheseto [2012] eKLR, it was held that:
"No doubt, in law, the fact that the process of execution has been put in motion, or is likely to be put in motion, by itself, does not amount to substantial loss. Even when execution has been levied and completed the attached properties have been sold, as is the case here, does not in itself amount to substantial loss under Order 42 Rule 6 of the CPR. This is so because execution is a lawful process. The applicant must establish other factors which show that the execution will create a situation that will irreparably affect or negate the very essential core of the applicant as the successful party in the appeal ... the issue of substantial loss is the cornerstone of both jurisdictions. Substantial loss is what must be prevented by preserving the status quo because such loss would render the appeal nugatory."
9. In response to the Applicant’s assertions on the 1st Respondent’s inability to refund the decretal sum if released to him, the Respondent argued that it is the Appellant/Applicant the Appellants/Applicants have to demonstrate that fact. The Respondent stated that he is ready to provide a bank guarantee for the decretal sum to confirm that I am of means to refund the decretal sum in the likely event the Appeal is successful.
10. The Appellant/Applicant had a duty to demonstrate facts, and not merely to allege that the Respondent's means are unknown. Indeed, on a similar issue in ISAAC MUTETI KISUA -VS - FELIX MWANGI NDEGWA [2016] eKLR the Court rendered itself thus:
“This Court finds that the Applicant from the reading of the above quoted provisions has the burden to demonstrate that he would suffer "substantial loss" and not just loss unless stay of execution is granted. I am not convinced that the burden of demonstrating financial means is the other way round as submitted by the Applicant. Looking at the authorities quoted, especially by the Respondent and the provisions of the quoted rules it is clear that an applicant has a duty to demonstrate that a substantial loss may result to him/her unless an order of stay is made”.
11. Similarly, in SOCFINAC COMPANY LIMITED -VS- NELPHAT KIMOTHO MUTURI [2013] eKLR Odunga J, held as follows:
The appellant's belief that the respondent will be unable to repay the same is solely based on the appellant's lack of knowledge as to the respondent's financial ability or capability. In my view, the mere fact that an appellant does not know the respondent's financial capability does not give rise to the presumption that the respondent will be unable to repay the sum. There must be other factors that lead to that presumption. On the material before the court. I am not satisfied that the appellant has shown that it stands to suffer substantial loss if the stay sought is not granted.
12. Further, Radido J at paragraphs 16 - 18 in VAN DEN BERG (K) LIMITED VS- CHARLES OSEWE OSODO [2015] eKLR rendered himself thus:
“ 16. I have carefully perused the supporting affidavit sworn by Isaac M. Wamaasa and I have not been able to decipher what substantial loss the Appellant would suffer if stay were not grant.
17. The closest contention is that the Respondent is a man of straw who has not demonstrated that he could refund the decretal sum. 18. The position as urged by the Appellant on this point cannot be correct. It is not a burden placed upon decree holders to prove that they can refund the decretal sum. It is the appellant who alleges that the decree holder is a man of straw to demonstrate that fact.
13. In granting an order of stay of execution, the court should not be seen to interfere with a party's enjoyment of the fruit of the judgment. See the case of Stephen Wanjohi vs. Central Glass Industries Ltd. Nairobi HCCC No.6726 of 1991 where the court stated as follows: -
"The financial ability of a decree-holder solely is not a reason for allowing stay, it is enough that the decree-holder is not a dishonourable miscreant without any form of income. Suffice to state that the respondent, at this moment, is the successful party and in order to deny him the fruits of his success, it is upon the applicant to prove that he is unlikely to make good whatever sum he may have received in the meantime."
14. The loss the Appellant has alluded to is that the appeal herein will be rendered nugatory should the stay order be declined. It is my considered view that this being a monetary claim, any loss to be suffered by either party can adequately be compensated by an award in damages. The Applicant has not shown by evidence through an affidavit that the Respondent is incapable of refunding the decretal sums should the appeal succeed.
15. On the third criterion where the Applicant/Appellant must furnish security for the due performance of the decree. I am fully aware that the court has a delicate task of balancing the interests of both the Appellant and the Respondent. The Appellant who seek to preserve the status quo pending the hearing of the Appeal so that his Appeal is not rendered nugatory and the interest of the Respondent who is seeking to enjoy the fruits of his judgement. It is true that under Order 42 rule 6 aforesaid, the Applicant is required to offer security for the due performance of the decree and the Court is entitled to take into account the fact that no such security has been offered in deciding an application thereunder. I agree with the position in Mwaura Karuga t/a Limit Enterprises .vs. Kenya Bus Services Ltd & 4 Others [2015] eKLR, where it was held that:
“… the security must be one which shall achieve due performance of the decree which might ultimately be binding on the applicant. The rule does not, therefore, envisage just any security. The words ‘’ultimately be binding’ are deliberately used and are useful here, for they refer to the entire decree as will be payable at the time the appeal is lost. That is the presumption of law here. Therefore, the ultimate decree envisaged under order 42 rule 6 (2) (b) of the Civil Procedure Rules includes costs and interest on the judgment sum unless the latter two were not granted-which is seldom. The security to be given is measured on that yardstick.”
16. I also associate myself with the holding in Gianfranco Manenthi & another vs. Africa Merchant Assurance Company Ltd [2019] eKLR, where the court observed:
“… the applicant must show and meet the condition of payment of security for due performance of the decree. Under this condition a party who seeks the right of appeal from money decree of the lower court for an order of stay must satisfy this condition on security. In this regard, the security for due performance of the decree under order 42 rule 6(1) of the Civil Procedure Rules, it is trite that the winner of litigation should not be denied the opportunity to execute the degree in order to enjoy the fruits of his judgment in case the appeal fails.
Further, order 42 should be seen from the point of view that a debt is already owed and due for payment to the successful litigant in a litigation before a court which has delivered the matter in his favour. This is therefore to provide a situation for the court that if the appellant fails to succeed on appeal there could be no return to status quo on the part of the plaintiff to initiate execution proceedings where the judgement involves a money decree. The court would order for the release of the deposited decretal amount to the respondent in the appeal … This the objective of the legal provisions on security was never intended to fetter the right of appeal. It was also put in place to ensure that courts do not assist litigants to delay execution of decrees through filing vexatious and frivolous appeals. In any event, the issue of deposit of security for due performance of decree is not a matter of willingness by the applicant but for the court to determine.”
17. The law is that where the Applicant intends to exercise its undoubted right of appeal, and in the event, it were eventually to succeed it should not be faced with a situation in which it would find itself unable to get back its money. Likewise, the Respondent who has a decree in his favour should not, if the applicant were eventually to be unsuccessful in its intended appeal, find it difficult or impossible to realize the decree. This is the cornerstone of the requirement for security. The issue of adequacy of security was dealt with by the Court of Appeal in Nduhiu Gitahi vs. Warugongo [1988] KLR 621; 1 KAR 100; [1988-92] 2 KAR 100 where the Court of Appeal expressed itself as follows:
“The process of giving security is one, which arises constantly. So long as the opposite party can be adequately protected, it is right and proper that security should be given in a way, which is least disadvantageous to the party giving the security. It may take many forms. Bank guarantee and payment into court are but two of them. So long as it is adequate, then the form of it is a matter, which is immaterial. In an application for stay pending appeal the court is faced with a situation where judgement has been given. It is subject to appeal. It may be affirmed or it may be set aside. The court is concerned with preserving the rights of both parties pending that appeal. It is not the function of the court to disadvantage the defendant while giving no legitimate advantage to the plaintiffs. It is the duty of the court to hold the ring even-handedly without prejudicing the issue pending the appeal. For that purpose, it matters not whether the plaintiffs are secured in one way rather than another. It would be easier for the defendants or if for any reason they would prefer to provide security by a bank guarantee rather than cash. There is absolutely no reason in principle why they should not do so. The aim of the court in this case was to make sure, in an even-handed manner, that the appeal would not be prejudiced and that the decretal sum would be available if required. The respondent is not entitled, for instance, to make life difficult for the applicant, so as to tempt him into settling the appeal. Nor will either party lose if the sum is actually paid with interest at court rates. Indeed, in this case there is less need to protect the defendant because nearly half the sum will have been paid and the balance was at one stage open to negotiation to reduce it”.
18. The Applicant has averred in the supporting affidavit that his Insurer is willing to offer security for the decretal amount as per the courts discretion as a condition for stay of execution pending the hearing and determination of the intended appeal.
19. I find that the Applicant has not satisfying the legal requirement for security for costs as he is relying on a person who is not a party to these proceedings to offer security. There is nothing to show any commitment by the said Insurer third person to offer security as alleged by the Applicant.
b) Who should bear the cost of this application?
20. On the question of costs of the application, the general rule is that costs shall follow the event in accordance with the provisions of Section 27 of the Civil Procedure Act (Cap. 21). A successful party should ordinarily be awarded costs of an action unless the court, for good reason, directs otherwise. See Jasbir Singh Rai & 3 Others Vs Tarlochan Singh Rai & 4 others SC. Petition No. 4 of 2012: [2014] eKLR. The Supreme Court held that costs follow the event and that the Court has the discretion in awarding such costs.
21. Taking all the above factors into account and in order not to render the intended appeal nugatory as well as to give effect to the overriding objective of the Civil Procedure Act, I will reluctantly allow the application dated 16th April 2024 and in the interest of administration of justice direct that the appeal must be fast-tracked, heard and determined on its merits. Consequently, I make the following orders:
a. I hereby allow the Appellant/Applicant’s application dated 16th April 2024 and grant stay of Execution of the judgment delivered by Honourable B. A Luova delivered in MACHAKOS SCC EO17 OF 2024 and any consequent decree thereon pending the hearing and determination of the Appeal.
b. The Applicant shall deposit the entire decretal sum into a joint interest earning bank account to be opened in the names of Parties’ Advocates on record within Forty-Five (45) days of this Ruling.
c. That failure by the Appellant/Applicant to comply with Order in (b) the Respondents will be at liberty to execute.
d. The Appellant shall file and serve a record of appeal within Sixty (60) days of this ruling failure to which the appeal will stand dismissed.
c. Costs shall be in the appeal;
d. A mention date to be fixed for directions on the disposal of the appeal.
It is so ordered.
RULING WRITTEN, DATED & SIGNED AT MACHAKOS THIS 30TH JANUARY 2026
NOEL I. ADAGI
JUDGE
DELIVERED VIRTUALLY ON TEAMS AT MACHAKOS THIS 30TH JANUARY 2026