REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT BUNGOMA
CIVIL DIVISION
CIVIL APPEAL NO. E139 OF 2025
EDITH MURUNGA …………………………………..…………APPELLANT
-AND-
EMILY NANJALA BARASA …..................................RESPONDENT
RULING
1. The applicant in this matter is seeking an order staying execution of the Ruling and order delivered on 21st August 2025 in Bungoma CMCC Misc. Application No. E064 of 2024, pending the determination of the Appeal.
2. The application has been opposed. The applicant's argument is that she is unable to pay the agreed sum of Ksh. 200,000/= and can only afford Ksh. 56,931. Accordingly, she prays for a stay of execution.
3. In a reply affidavit dated 20/9/2026, the respondent argues that the applicant has failed to comply with the provisions of Order 45 Rule 6 of the Civil Procedure (Amendment) Rules 2020. The applicant reached a consent and undertook to liquidate the sum in instalments of 200,000/=. The appeal is a sham and raises no triable issues. They are not agreeable to the proposal and will suffer irreparable loss and damage.
4. The application was canvassed orally. I have considered the submissions. The only issue for determination is whether the applicant is entitled to a stay of execution.
5. The conditions for granting a stay of execution pending appeal are set out in Order 42 Rule 6 of the Civil Procedure Rules, as follows:
“(1) No appeal or second appeal shall operate as a stay of execution or proceedings under a decree or order appealed from except appeal case of 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.
(3) …
(4) For the purposes of this rule an appeal to the Court of Appeal shall be deemed to have been filed when under the Rules of that Court notice of appeal has been given.
(5) …
(6) Notwithstanding anything contained in subrule (1) of this rule the High Court shall have power in the exercise of its appellate jurisdiction to grant a temporary injunction on such terms as it thinks just provided the procedure for instituting an appeal from a subordinate court or tribunal has been complied with.”
6 . An applicant for a stay of execution of a decree or order pending appeal is obliged to satisfy the conditions set out in Order 42 Rule 6(2), namely (a) that the application has been made without unreasonable delay, (b) that substantial loss may result to the applicant unless the order is made, and (c) that such security as the court orders for the due performance of any decree or order that may ultimately be binding on the applicant has been given.
DETERMINATION
7. Having considered the rival affidavits and oral submissions, I find as follows: the application was filed within a reasonable period. The ruling the applicant seeks to appeal was delivered on 21/8/2025, and the application was filed on 10/9/2025. There was no delay in filing the application.
8. The second condition is that the applicant must demonstrate that she will suffer substantial loss. In the affidavit dated 9/10/2025, she merely states that she has paid Ksh. 1,900,000/= towards the decretal sum of Ksh. 4,308,364.65/= and that, due to unforeseen hardship, including her own medical condition and the withdrawal of financial support from the daughters, she is unable to pay the 200,000/=. In my view, the applicant has failed to demonstrate the substantial loss she will suffer. She mentions unforeseen hardships, which are not fully disclosed, and a medical condition, which is also not fully disclosed. I am not persuaded that she will suffer substantial loss.
9. The last condition concerns security. She claims that she cannot afford to pay the sum she had consented to pay and that she has filed an appeal with triable issues. The respondent has challenged this and claims that there are no triable issues. The parties entered into a consent with the lower court; it will be upon the applicant to demonstrate that she has an arguable appeal. She states good grounds for having the ruling set aside. Looking at the circumstances in this case, I find that the applicant has failed to offer any security as required by law.
10. In Butt vs Rent Restriction Tribunal [1979], the Court of Appeal stated what ought to be considered in determining whether to grant or refuse a stay of execution pending appeal. The court said that the court's power to grant or refuse an application for a stay of execution is discretionary, and that discretion should be exercised so as not to prevent an appeal. I find that the applicant has failed to persuade this court that she is entitled to a stay of execution. I find no merit in her application, and I dismiss it with costs to the respondent.
Dated, signed and delivered virtually on this 9 th Day of April 2026.
R. E. OUGO
JUDGE
In the presence of:
Miss Rop h/b for Mr. Rene - For the Applicant.
Mr. Bw’onchiri - For Respondent
Wilkister - Court Assistant.
hcca e139 of 2025- ruling 2
IN THE HIGH COURT OF KENYA AT BUNGOMA
CIVIL DIVISION
CIVIL APPEAL NO. E139 OF 2025
EDITH MURUNGA …………………………………..…………APPELLANT
-AND-
EMILY NANJALA BARASA …..................................RESPONDENT
RULING
1. The applicant in this matter is seeking an order staying execution of the Ruling and order delivered on 21st August 2025 in Bungoma CMCC Misc. Application No. E064 of 2024, pending the determination of the Appeal.
2. The application has been opposed. The applicant's argument is that she is unable to pay the agreed sum of Ksh. 200,000/= and can only afford Ksh. 56,931. Accordingly, she prays for a stay of execution.
3. In a reply affidavit dated 20/9/2026, the respondent argues that the applicant has failed to comply with the provisions of Order 45 Rule 6 of the Civil Procedure (Amendment) Rules 2020. The applicant reached a consent and undertook to liquidate the sum in instalments of 200,000/=. The appeal is a sham and raises no triable issues. They are not agreeable to the proposal and will suffer irreparable loss and damage.
4. The application was canvassed orally. I have considered the submissions. The only issue for determination is whether the applicant is entitled to a stay of execution.
5. The conditions for granting a stay of execution pending appeal are set out in Order 42 Rule 6 of the Civil Procedure Rules, as follows:
“(1) No appeal or second appeal shall operate as a stay of execution or proceedings under a decree or order appealed from except appeal case of 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.
(3) …
(4) For the purposes of this rule an appeal to the Court of Appeal shall be deemed to have been filed when under the Rules of that Court notice of appeal has been given.
(5) …
(6) Notwithstanding anything contained in subrule (1) of this rule the High Court shall have power in the exercise of its appellate jurisdiction to grant a temporary injunction on such terms as it thinks just provided the procedure for instituting an appeal from a subordinate court or tribunal has been complied with.”
6 . An applicant for a stay of execution of a decree or order pending appeal is obliged to satisfy the conditions set out in Order 42 Rule 6(2), namely (a) that the application has been made without unreasonable delay, (b) that substantial loss may result to the applicant unless the order is made, and (c) that such security as the court orders for the due performance of any decree or order that may ultimately be binding on the applicant has been given.
DETERMINATION
7. Having considered the rival affidavits and oral submissions, I find as follows: the application was filed within a reasonable period. The ruling the applicant seeks to appeal was delivered on 21/8/2025, and the application was filed on 10/9/2025. There was no delay in filing the application.
8. The second condition is that the applicant must demonstrate that she will suffer substantial loss. In the affidavit dated 9/10/2025, she merely states that she has paid Ksh. 1,900,000/= towards the decretal sum of Ksh. 4,308,364.65/= and that, due to unforeseen hardship, including her own medical condition and the withdrawal of financial support from the daughters, she is unable to pay the 200,000/=. In my view, the applicant has failed to demonstrate the substantial loss she will suffer. She mentions unforeseen hardships, which are not fully disclosed, and a medical condition, which is also not fully disclosed. I am not persuaded that she will suffer substantial loss.
9. The last condition concerns security. She claims that she cannot afford to pay the sum she had consented to pay and that she has filed an appeal with triable issues. The respondent has challenged this and claims that there are no triable issues. The parties entered into a consent with the lower court; it will be upon the applicant to demonstrate that she has an arguable appeal. She states good grounds for having the ruling set aside. Looking at the circumstances in this case, I find that the applicant has failed to offer any security as required by law.
10. In Butt vs Rent Restriction Tribunal [1979], the Court of Appeal stated what ought to be considered in determining whether to grant or refuse a stay of execution pending appeal. The court said that the court's power to grant or refuse an application for a stay of execution is discretionary, and that discretion should be exercised so as not to prevent an appeal. I find that the applicant has failed to persuade this court that she is entitled to a stay of execution. I find no merit in her application, and I dismiss it with costs to the respondent.
Dated, signed and delivered virtually on this 9 th Day of April 2026.
R. E. OUGO
JUDGE
In the presence of:
Miss Rop h/b for Mr. Rene - For the Applicant.
Mr. Bw’onchiri - For Respondent
Wilkister - Court Assistant.
hcca e139 of 2025- ruling 2