1. By Notice of Motion dated 11th June 2026 brought under Order 42 Rule 6 and Order 51 Rule 1 of the Civil Procedure Rules, sections 1A, 1B and 3A of the Civil Procedure Act and all other enabling provisions of the law, Dennis Kembora, the appellant seeks a stay of execution of the judgment and decree delivered on 13th May 2026 in Keroka CMCC 215 of 2015 pending the hearing and determination of this appeal.
2. In the supporting affidavit sworn on even date, the applicant depones that judgment was entered against him for KES. 557,200, together with costs and interest, whereupon, being dissatisfied with the findings on both liability and quantum, he lodged a Memorandum of Appeal dated 02nd June 2026. He further depones that unless execution is stayed the appeal will be rendered nugatory as there is no assurance that the respondent would be able to refund the decretal sum should the appeal ultimately succeed, while expressing willingness to furnish such security for the due performance of the decree as the Court may direct.
3. The respondent, Moses Warungi Kariuki,opposes the application through his Replying Affidavit sworn on 22nd June 2026, in which he depones that the applicant has failed to satisfy the conditions for the grant of a stay of execution, that he is capable of refunding the decretal sum should the appeal succeed, and that, if the Court is nevertheless inclined to grant a stay, one half of the decretal sum should be released to him while the balance is deposited in a joint interest-earning account in the names of the parties' advocates.
4. The principles governing the grant of a stay are set out in Order 42 Rule 6 of the Civil Procedure Rules. An applicant must demonstrate that the application was made without unreasonable delay, that substantial loss may result unless the order is granted, and that security has been offered for the due performance of the decree. As the Court of Appeal observed in Halai & Another v Thornton & Turpin (1963) Ltd [1990] KECA 65 (KLR), those conditions are cumulative and must all be satisfied before the Court can exercise its discretion.
5. A consideration of the chronology of events shows that judgment was delivered on 13th May 2026, the Memorandum of Appeal was lodged on 02nd June 2026, and the Notice of Motion dated 11th June 2026 was filed shortly thereafter, leaving the xcourt satisfied that the application was presented without unreasonable delay.
6. On substantial loss, the appellant expresses apprehension that the respondent may not be able to refund the decretal sum if the appeal succeeds. Although the respondent states that he is a person of means, he has not disclosed any material demonstrating his financial ability. In National Industrial Credit Bank Ltd v Aquinas Francis Wasike & another [2006] KECA 333 (KLR),the Court of Appeal held that once an applicant raises a reasonable apprehension regarding a respondent's ability to refund the decretal sum, the evidential burden shifts to the respondent because the state of his finances is a matter peculiarly within his knowledge.
7. The appellant has also undertaken to deposit the decretal sum as security. That undertaking secures the respondent's interest while preserving the appellant's right of appeal and satisfies the final requirement under Order 42 Rule 6.
8. The Notice of Motion dated 11th June 2026 is consequently allowed on the following terms:
1) There shall be a stay of execution of the judgment and decree in Keroka CMCC No. 215 of 2015 pending the hearing and determination of the appeal.
2) The appellant shall deposit the entire decretal sum in Court within seven (7) days of this ruling.
3) In default of compliance with order (b), the stay granted herein shall automatically lapse.
4) Costs of the application shall abide the outcome of the appeal.
5) Mention on 05th October 2026 before the DR to confirm filing of the Record of Appeal and submissions
2. In the supporting affidavit sworn on even date, the applicant depones that judgment was entered against him for KES. 557,200, together with costs and interest, whereupon, being dissatisfied with the findings on both liability and quantum, he lodged a Memorandum of Appeal dated 02nd June 2026. He further depones that unless execution is stayed the appeal will be rendered nugatory as there is no assurance that the respondent would be able to refund the decretal sum should the appeal ultimately succeed, while expressing willingness to furnish such security for the due performance of the decree as the Court may direct.
3. The respondent, Moses Warungi Kariuki,opposes the application through his Replying Affidavit sworn on 22nd June 2026, in which he depones that the applicant has failed to satisfy the conditions for the grant of a stay of execution, that he is capable of refunding the decretal sum should the appeal succeed, and that, if the Court is nevertheless inclined to grant a stay, one half of the decretal sum should be released to him while the balance is deposited in a joint interest-earning account in the names of the parties' advocates.
4. The principles governing the grant of a stay are set out in Order 42 Rule 6 of the Civil Procedure Rules. An applicant must demonstrate that the application was made without unreasonable delay, that substantial loss may result unless the order is granted, and that security has been offered for the due performance of the decree. As the Court of Appeal observed in Halai & Another v Thornton & Turpin (1963) Ltd [1990] KECA 65 (KLR), those conditions are cumulative and must all be satisfied before the Court can exercise its discretion.
5. A consideration of the chronology of events shows that judgment was delivered on 13th May 2026, the Memorandum of Appeal was lodged on 02nd June 2026, and the Notice of Motion dated 11th June 2026 was filed shortly thereafter, leaving the xcourt satisfied that the application was presented without unreasonable delay.
6. On substantial loss, the appellant expresses apprehension that the respondent may not be able to refund the decretal sum if the appeal succeeds. Although the respondent states that he is a person of means, he has not disclosed any material demonstrating his financial ability. In National Industrial Credit Bank Ltd v Aquinas Francis Wasike & another [2006] KECA 333 (KLR),the Court of Appeal held that once an applicant raises a reasonable apprehension regarding a respondent's ability to refund the decretal sum, the evidential burden shifts to the respondent because the state of his finances is a matter peculiarly within his knowledge.
7. The appellant has also undertaken to deposit the decretal sum as security. That undertaking secures the respondent's interest while preserving the appellant's right of appeal and satisfies the final requirement under Order 42 Rule 6.
8. The Notice of Motion dated 11th June 2026 is consequently allowed on the following terms:
1) There shall be a stay of execution of the judgment and decree in Keroka CMCC No. 215 of 2015 pending the hearing and determination of the appeal.
2) The appellant shall deposit the entire decretal sum in Court within seven (7) days of this ruling.
3) In default of compliance with order (b), the stay granted herein shall automatically lapse.
4) Costs of the application shall abide the outcome of the appeal.
5) Mention on 05th October 2026 before the DR to confirm filing of the Record of Appeal and submissions