The Applicant/Appellant herein has brought application dated 10th December 2025 pursuant to Order 42 Rule 6 of the Civil Procedure Rules, Sections IA, 1B & 3A of the Civil Procedure Act seeking that pending the inter partes hearing and determination of this application, there be a temporary stay of execution of the said judgment delivered on 12th November 2025 and all consequential orders in Rongo SPMCCCN0. E062 of2023;
THAT there be a stay of execution of the judgment delivered on 12h November 2025 and all consequential orders in Rongo SPMCCC No. E062 of 2023, pending the hearing and determination of this appeal.
THAT the costs of this application be provided for.
The application is premised on the grounds that judgment in the primary suit was delivered on 12dl November 2025, wherein the Court entered judgment in favour of the Respondent as against the Appellant/Applicant;
That upon delivery of the said judgment, the trial court granted the Appellant/Applicant a 30-day interim stay of execution, which temporary stay is set to expire on 12th December 2025, thereby exposing the Applicant to imminent execution.
That the Appellant/Applicant, being fully dissatisfied with the entire judgment, has already lodged a competent appeal before this Honourable Court, challenging both the findings and conclusions of the trial Court. The appeal raises weighty, arguable, and substantial issues of law and fact, including but not limited to misapprehension of evidence, improper evaluation of material facts, and errors in law. The appeal, therefore, has overwhelming chances of success.
That unless this Honourable Court intervenes and grants a stay, the Respondent is likely to commence execution immediately upon lapse of the interim stay, which execution will render the pending appeal nugatory, academic, and merely an exercise in futility.
That the Appellant/Applicant stands to suffer substantial and irreparable loss in the event execution proceeds, as the Respondent may proceed to attach, sell, or otherwise dispose of the Applicant's property, and in the event the appeal succeeds, the Appellant/Applicant may not recover the decretai sums or property attached due to the Respondent's' uncertain financial capacity.
That the Respondent, as a successful litigant at the trial Court, may be keen to enjoy the fruits of judgment, but such enjoyment should not be permitted at the expense of completely defeating the Appellant's/Applicant's right of appeal, which is a constitutional and statutory right deserving protection.
That the right of appeal conferred upon the Appellant/Applicant under the law must be preserved, and this Court has inherent jurisdiction to prevent an appeal from being rendered elusive, illusory, or worthless by premature execution.
That the Appellant/Applicant is ready, willing, and prepared to comply with any reasonable order on security for the due performance of the decree, including deposit of the decretal sum or part thereof in Court, or deposit in a joint interest-earning account, as the Court may deem fit and just.
That this application has been filed timeously, promptly, and without undue delay, considering that the interim stay granted by the trial court has not yet lapsed.
That the balance of convenience tilts strongly in favour of granting the stay sought, as the Respondent will suffer no prejudice that cannot be compensated by costs, whereas the Applicant will suffer irreparable prejudice if execution proceeds prematurely.
That the Court is clothed with wide discretionary powers under Order 42 Rule 6 of the Civil Procedure Rules, Sections IA, 1B, and 3A of the Civil Procedure Act to issue stay orders, and the exercise of this discretion is necessary to meet the ends of justice.
That it is in the interest of justice, equity, and fairness that the execution of the judgment delivered on 12th November 2025 be stayed pending the hearing and determination of the appeal.
This application was also supported by the affidavit of Edward Masese Obonyo sworn on even date reiterating the grounds on the face of the application.
This application was opposed by the replying affidavit of John Ogolla Otieno sworn on 18th December 2025.
Directions were taken for hearing of the application by way of written submissions. The Applicant’s submissions dated 19th January 2026 and the incomplete and undated submissions filed by the Respondent on 22nd January 2026 have been considered together with the Judgment of the trial court where General damages of Kshs. 800,000 was awarded to the Respondent together with costs and interest.
This court finds that the application was filed within reasonable period of time and the Applicant has offered to furnish security for the decretal sums and in the circumstances the application for stay of execution is granted on condition that the decretal sums are deposited in joint fixed deposit account in the names of the advocates on record within 30 days in default of compliance with the condition herein the respondent will be at liberty to execute without recourse to the court.
Mention before the Deputy Registrar on 11th May 2026 to call for the trial court file and confirm that the records of appeal have been filed and served.
DELIVERED, DATED and SIGNED at MIGORI this 5th day of February, 2026.
THAT there be a stay of execution of the judgment delivered on 12h November 2025 and all consequential orders in Rongo SPMCCC No. E062 of 2023, pending the hearing and determination of this appeal.
THAT the costs of this application be provided for.
The application is premised on the grounds that judgment in the primary suit was delivered on 12dl November 2025, wherein the Court entered judgment in favour of the Respondent as against the Appellant/Applicant;
That upon delivery of the said judgment, the trial court granted the Appellant/Applicant a 30-day interim stay of execution, which temporary stay is set to expire on 12th December 2025, thereby exposing the Applicant to imminent execution.
That the Appellant/Applicant, being fully dissatisfied with the entire judgment, has already lodged a competent appeal before this Honourable Court, challenging both the findings and conclusions of the trial Court. The appeal raises weighty, arguable, and substantial issues of law and fact, including but not limited to misapprehension of evidence, improper evaluation of material facts, and errors in law. The appeal, therefore, has overwhelming chances of success.
That unless this Honourable Court intervenes and grants a stay, the Respondent is likely to commence execution immediately upon lapse of the interim stay, which execution will render the pending appeal nugatory, academic, and merely an exercise in futility.
That the Appellant/Applicant stands to suffer substantial and irreparable loss in the event execution proceeds, as the Respondent may proceed to attach, sell, or otherwise dispose of the Applicant's property, and in the event the appeal succeeds, the Appellant/Applicant may not recover the decretai sums or property attached due to the Respondent's' uncertain financial capacity.
That the Respondent, as a successful litigant at the trial Court, may be keen to enjoy the fruits of judgment, but such enjoyment should not be permitted at the expense of completely defeating the Appellant's/Applicant's right of appeal, which is a constitutional and statutory right deserving protection.
That the right of appeal conferred upon the Appellant/Applicant under the law must be preserved, and this Court has inherent jurisdiction to prevent an appeal from being rendered elusive, illusory, or worthless by premature execution.
That the Appellant/Applicant is ready, willing, and prepared to comply with any reasonable order on security for the due performance of the decree, including deposit of the decretal sum or part thereof in Court, or deposit in a joint interest-earning account, as the Court may deem fit and just.
That this application has been filed timeously, promptly, and without undue delay, considering that the interim stay granted by the trial court has not yet lapsed.
That the balance of convenience tilts strongly in favour of granting the stay sought, as the Respondent will suffer no prejudice that cannot be compensated by costs, whereas the Applicant will suffer irreparable prejudice if execution proceeds prematurely.
That the Court is clothed with wide discretionary powers under Order 42 Rule 6 of the Civil Procedure Rules, Sections IA, 1B, and 3A of the Civil Procedure Act to issue stay orders, and the exercise of this discretion is necessary to meet the ends of justice.
That it is in the interest of justice, equity, and fairness that the execution of the judgment delivered on 12th November 2025 be stayed pending the hearing and determination of the appeal.
This application was also supported by the affidavit of Edward Masese Obonyo sworn on even date reiterating the grounds on the face of the application.
This application was opposed by the replying affidavit of John Ogolla Otieno sworn on 18th December 2025.
Directions were taken for hearing of the application by way of written submissions. The Applicant’s submissions dated 19th January 2026 and the incomplete and undated submissions filed by the Respondent on 22nd January 2026 have been considered together with the Judgment of the trial court where General damages of Kshs. 800,000 was awarded to the Respondent together with costs and interest.
This court finds that the application was filed within reasonable period of time and the Applicant has offered to furnish security for the decretal sums and in the circumstances the application for stay of execution is granted on condition that the decretal sums are deposited in joint fixed deposit account in the names of the advocates on record within 30 days in default of compliance with the condition herein the respondent will be at liberty to execute without recourse to the court.
Mention before the Deputy Registrar on 11th May 2026 to call for the trial court file and confirm that the records of appeal have been filed and served.
DELIVERED, DATED and SIGNED at MIGORI this 5th day of February, 2026.