Background
1. The Respondent Applicant herein filed a Notice of Motion dated 4th March 2026 seeking the following orders: -
a) Spent.
b) Spent.
c) There be a stay of execution of the judgment and decree in this matter pending full and final determination of the Respondent’s intended appeal against the said judgment and decree.
d) Costs of the Application be in the cause.
2. The Notice of Motion application is based on the grounds outlined therein and is supported by an affidavit from Mr. Simon Maina, the Applicant’s Head of Employee Relations, sworn on 4th March 2026.
3. The Respondent opposes the application on the grounds set out in her replying affidavit, sworn on 13th March 2026.
4. This Court issued directives that the application be addressed through written submissions. The parties complied accordingly. Their respective submissions are record for the Court's consideration.
The Applicant’s Application
5. The Applicant’s application is expressed to be under the provisions of Order 42 Rule 6 and Order 51 Rule 1 of the Civil Procedure Rules 2010.
6. It is anchored upon the following principal grounds:
i. Judgment was entered against the Respondent /Applicant herein.
ii. Being dissatisfied with and aggrieved by the said judgment, the Respondent/Applicant duly lodged and served a Notice of Appeal and requested copies of the typed proceedings, thereby indicating its intention to appeal against the decision.
iii. That the Respondent /Applicant will suffer irreparable loss if the order to stay execution is not granted. The Claimant’s employment with the Applicant was terminated, and she testified at the hearing that she is currently unemployed, so her income is unknown.
iv. The judgment sum is substantial, and the Claimant/Respondent would be unable to refund the same if the Applicant's claim succeeds.
v. That the instant application has been filed without undue delay.
vi. They are prepared to adhere to any conditions that this Court may consider appropriate to attach to the issuance of the stay order.
The Claimant’s/ Respondent’s Response
7. The Claimant asserts that the Applicant is guilty of non-disclosure of material facts. It has failed to disclose that it has also commenced execution proceedings against her for the sum of KShs. 44,450, the party and party costs taxed in its favour. The amount has already been deducted from the sum of KShs. 284.13, her party and party costs. The Applicant has approached this Court with dirty hands. As a result, it doesn’t deserve a favourable exercise of discretion by this Court.
8. It is additionally contended that Order 42 Rule 6 delineates obligatory criteria that an Applicant seeking a stay of execution pending appeal must fulfil; failure to do so will result in the rejection of their application. They must demonstrate that a substantial loss may result to them unless the order is granted, that the application has been made without undue delay, and that such security pending appeal has been offered.
9. Order 42[6] contemplates that, for the court’s jurisdiction to arise, an appeal must be filed. In the instant matter, it is clear that the Applicant has not filed an appeal against the judgment herein. It has only filed a Notice of Appeal. As such, the application for a stay of execution is incompetent.
10. The Applicant has not produced any draft memorandum of appeal from which this Court can determine whether the intended appeal is not frivolous.
11. It is further argued that the Applicant’s offer to furnish any security pending appeal within 30 days is unreasonable.
12. The Claimant contends that the balance of convenience favours her. She possesses a judgment in her favor, which she is entitled to enjoy. The decree flowing from the judgment has neither been reviewed nor set aside. The Applicant cannot purport to argue that it will suffer economically as a result of a legal process. The allegations that it would suffer substantial loss are unsubstantiated.
Analysis and Determination
13. I have carefully considered the Notice of Motion application, 2023; the ground set out on its face; the affidavit in support; the replying affidavit; and the parties’ respective submissions, and return that the sole issue for determination is as follows: -
a) Whether this Court should grant the Applicant stay of execution of the Judgment and Decree herein, pending the hearing and determination of the intended appeal.
14. Order 42 Rule 6 (1) and (2) of the Civil Procedure Rules 2010 provides for a stay of execution pending appeal, thus;
“Stay in case of appeal [Order 42, rule 6.]
(1) No appeal or second appeal shall operate as a stay of execution or proceedings 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 an application being made, to consider such application and to make such order thereon as may to it seems 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.”
15. The above provision vests jurisdiction to entertain an application for a stay of execution pending appeal in two forums: firstly, the court that issued the decree or order appealed against, and secondly, the appellate court before which the appeal has been lodged. The rule, therefore, grants an applicant the latitude to approach either court for appropriate relief.
16. Consequently, an applicant cannot be faulted or prejudiced for electing to move directly to the appellate court where the appeal has been or is intended to be preferred. Such a course is expressly sanctioned by the law, and it is often informed by considerations of convenience, expedition, or other circumstances of the matter. What remains material is whether the Applicant satisfies the legal threshold for the grant of a stay, and not the forum chosen from the two courts clothed with concurrent jurisdiction under the rule.
17. In exercising its jurisdiction under Order 42 Rule 6, the court is called upon to balance two competing rights: the right of a successful litigant to enjoy the fruits of a lawful judgment, and the right of an appellant to pursue an appeal that is not rendered nugatory or merely academic by execution before its determination.
18. It is for this reason that the discretion to grant stay of execution is not absolute or capricious. The discretion is circumscribed by the conditions expressly set out in the provision, including the demonstration of substantial loss, the promptness with which the application is brought, and the furnishing of security for the due performance of the decree. The Court must therefore exercise the discretion judiciously and within the confines of the law.
19. It is imperative to point out that the conditions stipulated under Order 42 Rule 6 are couched in conjunctive terms. Consequently, an applicant must satisfy all the prescribed requirements before the court can exercise its discretion in his favour. The requirements are not alternative or optional. Failure to satisfy even one of them is fatal to the application.
20. The Claimant/ Respondent argues that the instant application is incompetent as no appeal has been filed in the Court of Appeal. I find this argument not persuasive. For purposes of Order 42 Rule 6, a duly filed Notice of Appeal is sufficient to signify the existence of an intended appeal and invoke the court’s jurisdiction to entertain an application for a pending appeal. The law does not require that the substantive appeal must already have been filed before such an application can be considered.
21. The Applicant contends that failure to grant the orders sought would result in irreparable harm. The Claimant is unlikely to reimburse the judgment amount if the intended appeal is successful, as she lacks a source of income. The Claimant, on the other hand, argues that the Applicant has not, beyond baldly asserting that it would suffer substantial loss, demonstrated how.
22. In James Wangalwa & Another v Agnes Naliaka Chesato [2012] eKLR, the Court stated;
“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, that is to say, the attached properties have been sold, as is the case here, it does not, in itself, amount to substantial loss under Order 42 Rule 6 of CPR. This is so because execution is a lawful process.
The Applicant must establish other factors which show that the execution will create affairs that will irreparably affect or negate the very essential core of the Applicant as the successful party in the appeal. This is what substantial loss would entail, a question that was aptly discussed in the case of Silverstone v Chesoni [2001]eKLR. The issue of substantial loss is the cornerstone of both jurisdictions. Substantial loss in what has to be prevented by preserving the status quo, because such would render the appeal nugatory.”
23. This Court notes that the Claimant Applicant has not sufficiently responded to the Applicant’s expressed doubt as to her ability to refund the decretal sum should she be called upon to do so at the end of the day. She needed to swear a further affidavit explaining her means and capability. She did not do so.
24. In the case of Century Oil Trading Company Ltd vs. Kenya Shell Limited, Nairobi (Milimani) HCMCA No. 1561 of 2007, the Court expressed itself, thus;
“Where execution of a money decree is sought to be stayed, in considering whether the applicant will suffer a substantial loss, the financial position of the applicant and that of the respondent becomes an issue. The court cannot shut its eyes where it appears the possibility is doubtful of the respondent refunding the decretal sum in the event that the applicant is successful in his appeal. The court has to balance the interest of the applicant who is seeking 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 judgment.”
25. By reason of the foregoing premises, I am certified that the Applicant has established that if the orders sought are not given, it will suffer substantial loss.
26. Was the application filed timeously? Is the next question that needs to be answered? There is no doubt that the instant application was filed almost four months after the judgment was delivered and a Notice of Appeal was filed. This Court is cognisant that what constitutes unreasonable delay depends on the circumstances of each case. In the instant case, I see no plausible reason why it took the Applicant almost four months to file the instant application, noting that the judgment was uploaded into the system for public access immediately it was delivered. In light of this, I come to an inescapable conclusion that the application was not filed within a reasonable time.
27. In an application for a stay pending appeal, all that an Applicant is required to do is to show that they will offer security for the due performance of the decree pending appeal. They may suggest the kind and extent of the security they intend to offer. However, ultimately, the Court has the authority to decide what kind and the extent of the security, depending on the circumstances of each case. The Applicant has thus satisfied the condition regarding security, as required under Order 42 Rule 6 of the Civil Procedure Rules.
28. As the Applicant has failed to satisfy one of the conditions required under Order 42 Rule 6, this Court would readily dismiss the Applicant’s application for a stay of execution pending appeal. However, for the wider interests of justice and given the specific unsatisfied condition, I am constrained to allow the application in part rather than dismiss it in full.
29. Consequently, I allow the Applicant’s application for stay pending the intended appeal on the following terms;
I. The Applicant shall pay the Claimant/Respondent a sum of KShs. 500,000, plus the party and party costs allowed to him [KShs. 277,734.14].
II. The amount in [I] above is to be paid out of the sum, KShs. 1,900,000, already deposited in court by the Applicant.
III. The balance out of the amount in [II] above shall remain so deposited in court, pending the hearing and determination of the intended appeal and or further orders of the Court.
IV. Costs of the application shall be in the cause.
READ, DELIVERED AND SIGNED THIS 7th DAY OF May 2026
In the presence of:
Mr Otieno for the Claimant/Respondent
Mr Omino for the Respondent/Applicant