' Introduction
1. Before this Court is the Notice of Motion dated 21st July 2025, filed by the Appellant/Applicant, Francis Kereyiant Morintat, seeking an order for stay of execution of the judgment delivered on 17th June 2025 in Nyamira CMCC No. E081 of 2021 and decree thereof, pending the hearing and determination of this appeal.
2. The application is expressed to be brought under Order 42 Rule 6 of the Civil Procedure Rules and Sections 1A, 1B, and 3A of the Civil Procedure Act. It is supported by the affidavit Appellant/Applicant sworn on 21st July 2025, wherein he avers that he has filed an arguable appeal and that unless stay is granted, execution will render the appeal nugatory. He further deposes that he is ready and willing to abide by any conditions that the Court may impose regarding security.
3. The Respondent, Philip Nyakundi Nyamota, filed a Replying Affidavit sworn on 29th July 2025, opposing the motion. He terms the application frivolous, an abuse of process, and an attempt to deny him the fruits of the judgment delivered on 17th June 2025, arising from a road traffic accident that occurred on 11th March 2021.
Submissions
4. The application was canvassed by way of written submissions. The Appellant/Applicant’s submissions, dated 04th August 2025 support the motion for stay of execution of the judgment and decree. It is submitted that the appeal has already been lodged, and unless stay is granted, its outcome will be rendered nugatory as the Respondent lacks the financial means to refund the decretal sum of KES. 8,474,125 should the appeal succeed. The Applicant invokes Order 42 Rule 6(2) of the Civil Procedure Rules, which requires proof of substantial loss, timeliness, and willingness to furnish security.
5. On substantial loss, the Appellant/Applicant argues that payment of the decretal amount would occasion grave prejudice, as the Respondent lacks known means of income and would be unable to refund the decretal sum should the appeal succeed. It is further noted that the Respondent’s replying affidavit does not address or demonstrate capacity to make such refund. Citing National Industrial Credit Bank Ltd v Aquinas Francis Wasike & Another [2006] eKLR, the Appellant/Applicant contends that once a reasonable fear is expressed that a respondent may be unable to refund the decretal sum, the evidential burden shifts to the respondent to demonstrate means, pursuant to section 112 of the Evidence Act (Cap. 80).
6. Similar reasoning is drawn from Kenya Alliance Insurance Co. Ltd v John Mutuku Musyimi, HCCA No. 473 of 2004, where the court held that where information as to means lies solely with the Respondent, it is his duty to rebut the allegation of impecuniosity.
7. Reliance is further placed on Joseph Simiyu Mukenya v Agnes Naliaka Cheseto Bgm High Court Misc. Application No. 42 of 2011 (2012) eKLR), where the court held that the right of appeal is a constitutional entitlement that actualizes access to justice, and anything rendering it nugatory infringes that right. In support thereof, the Appellant/Applicant relied on Stanley Kang’ethe Kinyanjui v Tony Ketter & 5 Others [2013] eKLR, in which the Court of Appeal observed that an arguable appeal is one that deserving of full consideration by the court and cannot be regarded as frivolous.
8. The respondent filed written submissions dated 21st August 2025 opposing the notice of motion dated 21st July 2025 seeking stay of execution pending appeal. It is the Respondent’s position that the Appellant/Applicant has not satisfied the cumulative requirements for stay under Order 42 Rule 6(2) of the Civil Procedure Rules.
9. It was submitted that the respondent obtained judgment on 17th June 2025 in a claim for damages arising from a road traffic accident involving the applicant’s motor vehicle. Instead of satisfying the decree, the applicant filed an application for stay before the trial court, which was dismissed, and has now filed the present application pending appeal in this court.
10. The Respondent relies on the authorities of RWW v EKW [2019] eKLR and Absalom Dova v Tarbo Transporters [2013] eKLR, for the proposition that stay of execution is a discretionary remedy that is granted only when the applicant satisfies all statutory conditions.
11. Relying on Elena Doudoladova Korir v Kenyatta University [2014] eKLR, and the Court of Appeal decision in Halai & Another v Thornton & Turpin (1963) Ltd [1990] KLR 365, the Respondent contends that three conditions must be met, namely, proof of substantial loss; provision of security; and that the application has been brought without unreasonable delay.
12. On the first limb, it is contended that the Appellant/Applicant has not demonstrated the substantial loss that would result if stay is denied. The respondent cites Equity Bank Limited V Taiga Adams Company Limited [2006] KEHC 860 (KLR) as applied in Luxus Woods (K) Ltd v Patrick Amugune Kamadi [2016] eKLR, to argue that substantial loss is only proved by evidence showing that the decree-holder would be unable to refund the decretal amount if paid. The applicant has not made or proved such an allegation.
13. Further reliance is placed on Mutua Kilonzo v Kioko David [2008] eKLR, where the court held that a mere claim that the respondent is “a man of straw” without supporting evidence does not meet the threshold for substantial loss. The same principle was articulated in Lalji Bhimji Sanghani Builders & Contractors v City Council of Nairobi [2012] eKLR, where Ringera J held that the applicant must persuade the court through affidavit evidence that it would be impossible or difficult to recover the decretal sum if the appeal succeeds.
14. The Respondent also invokes the authority of Kenya Shell Ltd v Benjamin Karuga Kibiru & Another [1986] KLR 410, in which the Court of Appeal held that it is not normal for an appeal to be rendered nugatory merely because payment is made in satisfaction of a money decree, and that the mere assertion that the decretal sum is large does not constitute proof of substantial loss.
15. On the second condition, the Respondent contends that the applicant has failed to propose or offer any security for the due performance of the decree, contrary to Order 42 Rule 6(2)(b). Citing again Luxus Woods (K) Ltd v Patrick Amugune Kamadi (supra), it is argued that the right of appeal must be balanced against the decree-holder’s right to enjoy the fruits of judgment, and that there must be a just cause to deprive the Respondent of that right.
16. Finally, the Respondent contends that the application is unmerited, and the discretion of the court should not be exercised in favour of a party who has failed to satisfy the mandatory requirements for stay. However, should the court be inclined to allow the application, it is urged that the applicant be ordered to deposit three-quarters (¾) of the decretal amount plus costs to the respondent, and the balance in court as security pending appeal. Reliance is placed on Amoke Otieno Pascal v Melvin Anyango Owuor [2022] eKLR.
Issues for Determination
17. Having carefully considered the pleadings, affidavits, and submissions of the parties, the following issues arise for determination:
1) Whether the applicant has satisfied the conditions for the grant of stay of execution pending appeal under Order 42 Rule 6(2) of the Civil Procedure Rules
2) What orders should issue, including as to costs.
Analysis and Determination
18. The law under Order 42 Rule 6(2) requires the Applicant to demonstrate three elements: substantial loss if stay is not granted; that the application was filed without unreasonable delay; and that the Applicant is willing to furnish security for due performance of the decree. These conditions are cumulative, not alternative.
19. On substantial loss, the decretal sum of KES. 8,474,125 is not insignificant. The Appellant/Applicant contends that the Respondent lacks the means to refund it should the appeal succeed. The Respondent did not rebut this assertion, nor tender any evidence of means. In National Industrial Credit Bank Ltd v Aquinas Francis Wasike & Another (supra), the Court held that once an applicant expresses a reasonable apprehension that the respondent may not refund the decretal sum, the evidential burden shifts to the respondent to show his means, a principle anchored in section 112 of the Evidence Act (Cap 80). The same reasoning was applied in Kenya Alliance Insurance Co. Ltd v John Mutuku Musyimi (supra).
20. The Court therefore finds the Applicant’s apprehension reasonable and concludes that substantial loss has been sufficiently demonstrated. This finding aligns with the constitutional protection of the right to appeal articulated in Joseph Simiyu Mukenya v Agnes Naliaka Cheseto (supra), which underscores that anything rendering an appeal nugatory offends that right.
21. On delay, the judgment was delivered on 17th June 2025, and the motion was filed on 21st July 2025. The period of one month is reasonable and cannot be said to amount to unreasonable delay within the contemplation of Order 42 Rule 6(2).
22. Regarding security, the Applicant has expressed willingness to abide by terms to be imposed by the Court, including depositing a portion of the decretal sum in a joint interest-earning account. As held in Halai & Another v Thornton & Turpin (supra), the purpose of security is to balance the interests of both parties, protecting the decree-holder from loss while preserving the appellant’s right of appeal. The Court is satisfied that the Applicant’s proposal meets the ends of justice.
23. The Court further takes cognizance of the guidance in Stanley Kang’ethe Kinyanjui v Tony Ketter & 5 Others (supra), where it was stated that an arguable appeal need not necessarily succeed but must raise bona fide issues worth judicial consideration. The Applicant’s appeal, on its face, raises grounds that merit such consideration.
24. Accordingly, this Court is satisfied that the Appellant/Applicant has met the threshold for the grant of stay under Order 42 Rule 6(2). However, being a discretionary remedy, stay must be granted on terms that fairly balance the interests of both parties.
Conclusion
25. In the result, the Notice of Motion dated 21st July 2025 is allowed on the following terms:
1) There shall be a stay of execution of the judgment and decree delivered on 17th June 2025 in Nyamira CMCC No. E081 of 2021, pending the hearing and determination of Nyamira HCCA E036 of 2025.
2) The stay is conditional upon the Appellant/Applicant depositing one-half (½) of the decretal sum in a joint interest-earning account in the names of both advocates within thirty (30) days from the date of this ruling, failing which the stay shall lapse automatically.
3) The record of appeal shall be filed and served within 30 days of today’s ruling
4) The Appeal shall be disposed off by way of submissions with Appellant filing and serving the submission with 30 days from the date of service of the record of appeal
5) Respondent shall have 30 days to file and serve submission from the date of service of Appellant’s submissions
6) Mention on 21st January 2026 to take a judgment date
7) Costs of the application shall abide the outcome of the appeal.
Orders accordingly.
Appearances
Court Assistant - Hilda
For Appellant - Mr. Ombese for Mose, Mose & Mose Advocates
For Respondent - Ms. Sitati for Gekong’a & Co. Advocates
'
1. Before this Court is the Notice of Motion dated 21st July 2025, filed by the Appellant/Applicant, Francis Kereyiant Morintat, seeking an order for stay of execution of the judgment delivered on 17th June 2025 in Nyamira CMCC No. E081 of 2021 and decree thereof, pending the hearing and determination of this appeal.
2. The application is expressed to be brought under Order 42 Rule 6 of the Civil Procedure Rules and Sections 1A, 1B, and 3A of the Civil Procedure Act. It is supported by the affidavit Appellant/Applicant sworn on 21st July 2025, wherein he avers that he has filed an arguable appeal and that unless stay is granted, execution will render the appeal nugatory. He further deposes that he is ready and willing to abide by any conditions that the Court may impose regarding security.
3. The Respondent, Philip Nyakundi Nyamota, filed a Replying Affidavit sworn on 29th July 2025, opposing the motion. He terms the application frivolous, an abuse of process, and an attempt to deny him the fruits of the judgment delivered on 17th June 2025, arising from a road traffic accident that occurred on 11th March 2021.
Submissions
4. The application was canvassed by way of written submissions. The Appellant/Applicant’s submissions, dated 04th August 2025 support the motion for stay of execution of the judgment and decree. It is submitted that the appeal has already been lodged, and unless stay is granted, its outcome will be rendered nugatory as the Respondent lacks the financial means to refund the decretal sum of KES. 8,474,125 should the appeal succeed. The Applicant invokes Order 42 Rule 6(2) of the Civil Procedure Rules, which requires proof of substantial loss, timeliness, and willingness to furnish security.
5. On substantial loss, the Appellant/Applicant argues that payment of the decretal amount would occasion grave prejudice, as the Respondent lacks known means of income and would be unable to refund the decretal sum should the appeal succeed. It is further noted that the Respondent’s replying affidavit does not address or demonstrate capacity to make such refund. Citing National Industrial Credit Bank Ltd v Aquinas Francis Wasike & Another [2006] eKLR, the Appellant/Applicant contends that once a reasonable fear is expressed that a respondent may be unable to refund the decretal sum, the evidential burden shifts to the respondent to demonstrate means, pursuant to section 112 of the Evidence Act (Cap. 80).
6. Similar reasoning is drawn from Kenya Alliance Insurance Co. Ltd v John Mutuku Musyimi, HCCA No. 473 of 2004, where the court held that where information as to means lies solely with the Respondent, it is his duty to rebut the allegation of impecuniosity.
7. Reliance is further placed on Joseph Simiyu Mukenya v Agnes Naliaka Cheseto Bgm High Court Misc. Application No. 42 of 2011 (2012) eKLR), where the court held that the right of appeal is a constitutional entitlement that actualizes access to justice, and anything rendering it nugatory infringes that right. In support thereof, the Appellant/Applicant relied on Stanley Kang’ethe Kinyanjui v Tony Ketter & 5 Others [2013] eKLR, in which the Court of Appeal observed that an arguable appeal is one that deserving of full consideration by the court and cannot be regarded as frivolous.
8. The respondent filed written submissions dated 21st August 2025 opposing the notice of motion dated 21st July 2025 seeking stay of execution pending appeal. It is the Respondent’s position that the Appellant/Applicant has not satisfied the cumulative requirements for stay under Order 42 Rule 6(2) of the Civil Procedure Rules.
9. It was submitted that the respondent obtained judgment on 17th June 2025 in a claim for damages arising from a road traffic accident involving the applicant’s motor vehicle. Instead of satisfying the decree, the applicant filed an application for stay before the trial court, which was dismissed, and has now filed the present application pending appeal in this court.
10. The Respondent relies on the authorities of RWW v EKW [2019] eKLR and Absalom Dova v Tarbo Transporters [2013] eKLR, for the proposition that stay of execution is a discretionary remedy that is granted only when the applicant satisfies all statutory conditions.
11. Relying on Elena Doudoladova Korir v Kenyatta University [2014] eKLR, and the Court of Appeal decision in Halai & Another v Thornton & Turpin (1963) Ltd [1990] KLR 365, the Respondent contends that three conditions must be met, namely, proof of substantial loss; provision of security; and that the application has been brought without unreasonable delay.
12. On the first limb, it is contended that the Appellant/Applicant has not demonstrated the substantial loss that would result if stay is denied. The respondent cites Equity Bank Limited V Taiga Adams Company Limited [2006] KEHC 860 (KLR) as applied in Luxus Woods (K) Ltd v Patrick Amugune Kamadi [2016] eKLR, to argue that substantial loss is only proved by evidence showing that the decree-holder would be unable to refund the decretal amount if paid. The applicant has not made or proved such an allegation.
13. Further reliance is placed on Mutua Kilonzo v Kioko David [2008] eKLR, where the court held that a mere claim that the respondent is “a man of straw” without supporting evidence does not meet the threshold for substantial loss. The same principle was articulated in Lalji Bhimji Sanghani Builders & Contractors v City Council of Nairobi [2012] eKLR, where Ringera J held that the applicant must persuade the court through affidavit evidence that it would be impossible or difficult to recover the decretal sum if the appeal succeeds.
14. The Respondent also invokes the authority of Kenya Shell Ltd v Benjamin Karuga Kibiru & Another [1986] KLR 410, in which the Court of Appeal held that it is not normal for an appeal to be rendered nugatory merely because payment is made in satisfaction of a money decree, and that the mere assertion that the decretal sum is large does not constitute proof of substantial loss.
15. On the second condition, the Respondent contends that the applicant has failed to propose or offer any security for the due performance of the decree, contrary to Order 42 Rule 6(2)(b). Citing again Luxus Woods (K) Ltd v Patrick Amugune Kamadi (supra), it is argued that the right of appeal must be balanced against the decree-holder’s right to enjoy the fruits of judgment, and that there must be a just cause to deprive the Respondent of that right.
16. Finally, the Respondent contends that the application is unmerited, and the discretion of the court should not be exercised in favour of a party who has failed to satisfy the mandatory requirements for stay. However, should the court be inclined to allow the application, it is urged that the applicant be ordered to deposit three-quarters (¾) of the decretal amount plus costs to the respondent, and the balance in court as security pending appeal. Reliance is placed on Amoke Otieno Pascal v Melvin Anyango Owuor [2022] eKLR.
Issues for Determination
17. Having carefully considered the pleadings, affidavits, and submissions of the parties, the following issues arise for determination:
1) Whether the applicant has satisfied the conditions for the grant of stay of execution pending appeal under Order 42 Rule 6(2) of the Civil Procedure Rules
2) What orders should issue, including as to costs.
Analysis and Determination
18. The law under Order 42 Rule 6(2) requires the Applicant to demonstrate three elements: substantial loss if stay is not granted; that the application was filed without unreasonable delay; and that the Applicant is willing to furnish security for due performance of the decree. These conditions are cumulative, not alternative.
19. On substantial loss, the decretal sum of KES. 8,474,125 is not insignificant. The Appellant/Applicant contends that the Respondent lacks the means to refund it should the appeal succeed. The Respondent did not rebut this assertion, nor tender any evidence of means. In National Industrial Credit Bank Ltd v Aquinas Francis Wasike & Another (supra), the Court held that once an applicant expresses a reasonable apprehension that the respondent may not refund the decretal sum, the evidential burden shifts to the respondent to show his means, a principle anchored in section 112 of the Evidence Act (Cap 80). The same reasoning was applied in Kenya Alliance Insurance Co. Ltd v John Mutuku Musyimi (supra).
20. The Court therefore finds the Applicant’s apprehension reasonable and concludes that substantial loss has been sufficiently demonstrated. This finding aligns with the constitutional protection of the right to appeal articulated in Joseph Simiyu Mukenya v Agnes Naliaka Cheseto (supra), which underscores that anything rendering an appeal nugatory offends that right.
21. On delay, the judgment was delivered on 17th June 2025, and the motion was filed on 21st July 2025. The period of one month is reasonable and cannot be said to amount to unreasonable delay within the contemplation of Order 42 Rule 6(2).
22. Regarding security, the Applicant has expressed willingness to abide by terms to be imposed by the Court, including depositing a portion of the decretal sum in a joint interest-earning account. As held in Halai & Another v Thornton & Turpin (supra), the purpose of security is to balance the interests of both parties, protecting the decree-holder from loss while preserving the appellant’s right of appeal. The Court is satisfied that the Applicant’s proposal meets the ends of justice.
23. The Court further takes cognizance of the guidance in Stanley Kang’ethe Kinyanjui v Tony Ketter & 5 Others (supra), where it was stated that an arguable appeal need not necessarily succeed but must raise bona fide issues worth judicial consideration. The Applicant’s appeal, on its face, raises grounds that merit such consideration.
24. Accordingly, this Court is satisfied that the Appellant/Applicant has met the threshold for the grant of stay under Order 42 Rule 6(2). However, being a discretionary remedy, stay must be granted on terms that fairly balance the interests of both parties.
Conclusion
25. In the result, the Notice of Motion dated 21st July 2025 is allowed on the following terms:
1) There shall be a stay of execution of the judgment and decree delivered on 17th June 2025 in Nyamira CMCC No. E081 of 2021, pending the hearing and determination of Nyamira HCCA E036 of 2025.
2) The stay is conditional upon the Appellant/Applicant depositing one-half (½) of the decretal sum in a joint interest-earning account in the names of both advocates within thirty (30) days from the date of this ruling, failing which the stay shall lapse automatically.
3) The record of appeal shall be filed and served within 30 days of today’s ruling
4) The Appeal shall be disposed off by way of submissions with Appellant filing and serving the submission with 30 days from the date of service of the record of appeal
5) Respondent shall have 30 days to file and serve submission from the date of service of Appellant’s submissions
6) Mention on 21st January 2026 to take a judgment date
7) Costs of the application shall abide the outcome of the appeal.
Orders accordingly.
Appearances
Court Assistant - Hilda
For Appellant - Mr. Ombese for Mose, Mose & Mose Advocates
For Respondent - Ms. Sitati for Gekong’a & Co. Advocates
'