1. By the Notice of Motion Amended on 13th May 2026, Thomas Gisairo Nyakanga, the Appellant/Applicant, seeks an order of stay of execution of the judgment delivered by this Court on 29th January 2026 pending the hearing and determination of his intended appeal to the Court of Appeal. The application is expressed to be brought under Order 42 Rule 6 of the Civil Procedure Rules and all other enabling provisions of the law. The Applicant also prays that the costs of the application abide the outcome of the intended appeal.
2. The application is supported by the affidavit of Thomas Gisairo Nyakanga sworn on 13th May 2026. He expresses dissatisfaction with the judgment delivered by this Court on 29th January 2026 and states that he has taken steps to challenge that decision before the Court of Appeal, annexing what is described as a Memorandum of Appeal. He maintains that unless execution is stayed, the intended appeal will be rendered nugatory and that he stands to suffer irreparable loss. He further contends that, having regard to the nature of the dispute, the requirement to furnish security for the due performance of the decree should not apply.
3. Joseph Michieka Momanyi, the Respondent resists the application through the Replying Affidavit sworn on 02nd July 2026. He maintains that the application is devoid of merit, that the judgment delivered by this Court was firmly anchored in both the law and the evidence, and that the present application is intended only to delay the finalisation of the succession proceedings. He therefore urges the Court to decline the discretionary relief sought.
4. The application falls for determination under Order 42 Rule 6(2) of the Civil Procedure Rules, which circumscribes the Court's discretion to grant a stay of execution pending appeal. An applicant must satisfy the Court that the application was presented without unreasonable delay, that substantial loss may result unless the order is granted, and that security has been furnished for the due performance of the decree. These are not alternative considerations but cumulative conditions, each of which must be satisfied before the discretion of the Court can properly be invoked.
5. Judgment was delivered on 29th January 2026, while the present application was filed on 13th May 2026, a little over three months later. No explanation has been offered for the period of inactivity between the delivery of the judgment and the institution of the present application. Although whether delay is unreasonable depends upon the circumstances of each case, an applicant who invokes the equitable discretion of the Court is expected to account for any significant lapse of time. In the absence of such explanation, I conclude that the application was not brought timeously and the first statutory requirement has therefore not been met.
6. The Applicant also asserts that unless a stay is granted, the intended appeal will be rendered nugatory and that he will suffer irreparable loss. Those assertions, however, are not supported by any factual material demonstrating the nature of the loss apprehended or explaining why such loss would be incapable of redress should the intended appeal ultimately succeed. In Kenya Shell Ltd v Kibiru & Another [1986] KLR 410, the Court of Appeal affirmed that substantial loss is the cornerstone upon which an application for stay rests and must be established by evidence. Similarly, in National Industrial Credit Bank Ltd v Aquinas Francis Wasike & Another [2006] KECA 333 (KLR), the Court reiterated that the legal burden rests upon the applicant to demonstrate that refusal of a stay would render the intended appeal nugatory. Beyond the bare averments contained in the supporting affidavit, no material has been placed before the Court to discharge that burden.
7. The position regarding security is equally unavailing to the Applicant. Rather than expressing a willingness to furnish security, he expressly maintains that security ought not to be required because of the nature of the dispute. The requirement for security under Order 42 Rule 6(2)(b) is mandatory and exists to safeguard the interests of the successful litigant pending the determination of an appeal. The Applicant's refusal to offer security therefore constitutes a further failure to satisfy the statutory prerequisites for the grant of stay.
8. Having failed to satisfy the conditions prescribed under Order 42 Rule 6(2) of the Civil Procedure Rules, the Applicant has not laid a proper basis for the exercise of this Court's discretion in his favour.
9. The Notice of Motion Amended on 13th May 2026 is accordingly dismissed with costs to the Respondent.
10. File closed
2. The application is supported by the affidavit of Thomas Gisairo Nyakanga sworn on 13th May 2026. He expresses dissatisfaction with the judgment delivered by this Court on 29th January 2026 and states that he has taken steps to challenge that decision before the Court of Appeal, annexing what is described as a Memorandum of Appeal. He maintains that unless execution is stayed, the intended appeal will be rendered nugatory and that he stands to suffer irreparable loss. He further contends that, having regard to the nature of the dispute, the requirement to furnish security for the due performance of the decree should not apply.
3. Joseph Michieka Momanyi, the Respondent resists the application through the Replying Affidavit sworn on 02nd July 2026. He maintains that the application is devoid of merit, that the judgment delivered by this Court was firmly anchored in both the law and the evidence, and that the present application is intended only to delay the finalisation of the succession proceedings. He therefore urges the Court to decline the discretionary relief sought.
4. The application falls for determination under Order 42 Rule 6(2) of the Civil Procedure Rules, which circumscribes the Court's discretion to grant a stay of execution pending appeal. An applicant must satisfy the Court that the application was presented without unreasonable delay, that substantial loss may result unless the order is granted, and that security has been furnished for the due performance of the decree. These are not alternative considerations but cumulative conditions, each of which must be satisfied before the discretion of the Court can properly be invoked.
5. Judgment was delivered on 29th January 2026, while the present application was filed on 13th May 2026, a little over three months later. No explanation has been offered for the period of inactivity between the delivery of the judgment and the institution of the present application. Although whether delay is unreasonable depends upon the circumstances of each case, an applicant who invokes the equitable discretion of the Court is expected to account for any significant lapse of time. In the absence of such explanation, I conclude that the application was not brought timeously and the first statutory requirement has therefore not been met.
6. The Applicant also asserts that unless a stay is granted, the intended appeal will be rendered nugatory and that he will suffer irreparable loss. Those assertions, however, are not supported by any factual material demonstrating the nature of the loss apprehended or explaining why such loss would be incapable of redress should the intended appeal ultimately succeed. In Kenya Shell Ltd v Kibiru & Another [1986] KLR 410, the Court of Appeal affirmed that substantial loss is the cornerstone upon which an application for stay rests and must be established by evidence. Similarly, in National Industrial Credit Bank Ltd v Aquinas Francis Wasike & Another [2006] KECA 333 (KLR), the Court reiterated that the legal burden rests upon the applicant to demonstrate that refusal of a stay would render the intended appeal nugatory. Beyond the bare averments contained in the supporting affidavit, no material has been placed before the Court to discharge that burden.
7. The position regarding security is equally unavailing to the Applicant. Rather than expressing a willingness to furnish security, he expressly maintains that security ought not to be required because of the nature of the dispute. The requirement for security under Order 42 Rule 6(2)(b) is mandatory and exists to safeguard the interests of the successful litigant pending the determination of an appeal. The Applicant's refusal to offer security therefore constitutes a further failure to satisfy the statutory prerequisites for the grant of stay.
8. Having failed to satisfy the conditions prescribed under Order 42 Rule 6(2) of the Civil Procedure Rules, the Applicant has not laid a proper basis for the exercise of this Court's discretion in his favour.
9. The Notice of Motion Amended on 13th May 2026 is accordingly dismissed with costs to the Respondent.
10. File closed