1. This is a Ruling in respect to the Applicant’s application by way of a Notice of Motion dated 19th June, 2025.
Background Facts
2. The Applicant moved the Court vide the Notice of Motion dated 19th June 2025 seeking the following orders;
1) Spent
2) Spent
3) Spent
4) Pending the hearing and determination of this application and the intended appeal, the court to issue an order of stay of execution of the judgment issued on 22nd May 2025 and all the consequential orders thereto.
5) The costs of this application be provided for.
6) The Court do make any such further orders and issue any other relief it may deem just to grant in the interest of justice.
3. The Application was supported by the grounds on the face of it and by the Affidavit of Nazir Surani . He stated that Judgment in MCCC/E4062/2023 was delivered on 22nd May 2025 by Hon. William Lopokoiyit , dismissing the Applicant’s suit and awarding costs to the Respondent. Soon after, the Respondent moved with notable haste to initiate execution by writing to the Trial Court on 23rd May 2025, requesting the extraction of the decree and assessment of costs.
4. The Applicant contended that unless execution is stayed, it will suffer irreparable harm. This is because its core business of supplying petroleum products would be disrupted, adversely affecting its cash flow and contractual obligations to third parties. Further, execution prior to the hearing and determination of the intended appeal would render the appeal nugatory. This would undermine the Applicant’s right of appeal and defeat the ends of justice.
5. In response, the Respondent vide its Replying Affidavit, sworn on 29th July 2025, contended that the Application is riddled with misrepresentation and misapplication of the law relating to stay of execution. That it is overtaken by events, and does not disclose plausible grounds for the grant of the reliefs sought.
6. The Judgment of the Court made on 22nd May 2025 dismissed the Appellant’s suit against the Respondent, a resultant holding of which is a negative order, whose execution is incapable of being stayed. Further, in any event, it does not meet the mandatory requirements for the grant of an order for stay of execution.
7. In a Further Affidavit sworn on 13th August 2025, the Applicant pointed out that the Respondent’s contention that the judgment constitutes a “negative order” incapable of execution is erroneous. This is because the judgment dismissed the Applicant’s claim and expressly awarded costs to the Respondent. That the costs form an integral and executable part of the decree.
8. Indeed, the Respondent has already taken active steps toward execution by seeking the extraction of the decree and assessment of costs, demonstrating that enforcement is imminent. It is well established that a decree for costs is executable, and the impending recovery of such costs justifies the present application for stay so as to preserve the substratum of the appeal.
9. In any event, the Applicant’s Memorandum of Appeal dated 18th June 2025 expressly challenges the entirety of the judgment, including the award of costs, thereby further negating the Respondent’s assertion that the judgment is incapable of execution.
Issues for determination
10. Having considered the Application, the response and the written submissions, the Court finds that the only issue for determination is;
a) Whether an order of stay of execution should issue.
Analysis
11. An order for stay of execution pending appeal is governed by Order 42 Rule 6 of the Civil Procedure Rules . In essence, an Applicant is required to show that substantial loss will be suffered if the stay is denied, to furnish security for the due performance of the decree that may ultimately be binding, and to bring the application without undue delay.
12. Order 42 rule 6(1) of the Civil Procedure Rules provides that: -
“No appeal or a 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 orders thereon as may to it seem just, 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 the orders set aside.”
13. Further Order 42, rule 6(2) states: -
“No order for stay of execution shall be made under sub-rule (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.”
14. Before proceeding further, the Court notes that the Respondent argued that a stay of execution cannot apply against the award of costs as this is not the subject of an Appeal. However, a cursory look at the Memorandum of Appeal dated 18th June 2025 reveals that the said Appeal is “against the whole of the said judgment and any other consequential orders”. Thus, the Applicant is also appealing against the award of costs.
15. Substantial loss – The second consideration is whether the Applicant has illustrated that they will suffer substantial loss if the stay is not granted. The Applicant is apprehensive that if the stay of execution is not granted pending the determination of this appeal, the Respondent will proceed with the execution of the orders earlier issued by the Subordinate Court. Thus, the Applicant herein shall suffer substantial loss being that it will be made to part with a colossal sum of not less than Kshs. 550,000/= as costs payable to the Respondent. That this loss is of real worth and value, notwithstanding its smallness or greatness.
16. On the other hand, the Respondent submitted that the Appellant has not demonstrated how the pursuit of the costs awarded in the Trial Court would render the Appeal nugatory. That they have not demonstrated that the Respondent is a company of straw incapable of reimbursing, in the unfortunate and unlikely event that the Court overturns the decision of the Trial Court on the issue of costs.
17. Notably, the Respondent has not demonstrated that it has the means and capacity to refund the Applicant. In the instant case, the Applicant is likely to suffer substantial loss.
18. Delay - the judgment in the Trial Court was delivered on 22nd May 2025, and the present Application is dated 19th June 2025. Thus, the Application was filed without undue delay.
19. Security – The purpose of security was clearly enunciated in Arun C. Sharma v Ashana Raikundalia t/a Rairundalia & Co. Advocates & 2 others [2014] eKLR , where the court stated: -
“ The purpose of the security needed under Order 42 is to guarantee the due performance of such decree or order as may ultimately be binding on the applicant. It is not to punish the judgment debtor…. Civil process is quite different because in civil process the judgment is like a debt hence the applicants become and are judgment debtors in relation to the respondent. That is why any security given under Order 42 rule 6 of the Civil Procedure Rules acts as security for due performance of such decree or order as may ultimately be binding on the applicants. I presume the security must be one which can serve that purpose.”
20. Applicant stated in its Supporting Affidavit that it is ready and willing to furnish security for the due performance of the decree as a condition for the grant of stay pending the hearing and determination of the intended appeal
21. In the Court of Appeal case of Housing Finance Company of Kenya v Sharok Kher Mohamed Ali Hirji & another [2015] eKLR , it was stated: -
“In seeking to balance the interests of the respective parties, the approach we have always taken in determining whether or not to grant a stay of execution is to ensure that applicants are not denied their opportunity to ventilate their legal cases as afforded under the laws through the appeal process, with the possibility of success, while at the same time, respondents are not denied the fruit of judgement in their favour and their rights are safeguarded.”
22. Considering all relevant factors and in order not to render the intended appeal nugatory, the Court allows the application for stay of execution pending appeal on condition that the Applicant deposits a sum of Kshs.550,000.00 into Court as security for this appeal within 30 days from the date of this Ruling. In default of compliance within the stipulated time, this Application shall be deemed to have been dismissed with costs, and the Respondent shall be at liberty to execute.
Determination
23. The Applicant’s Application by way of a Notice of Motion dated 19th June, 2025 is allowed in the following terms;
a) THAT Pending the hearing and determination of this application and the intended appeal, the Court HEREBY issues an order of stay of execution of the judgment issued on 22nd May 2025 and all the consequential orders thereto.
b) THAT the costs of this application be costs in the cause.
c) THAT this is on condition that the Applicant deposits a sum of Kshs.550,000.00 into Court as security for this appeal, within Thirty (30) days from the date of this Ruling. In default of compliance within the stipulated time, this Application shall be deemed to have been dismissed with costs, and the Respondent shall be at liberty to execute
d) THAT the Court will proceed to issue directions to facilitate The hearing of the Appeal.
24. It is so ordered.
DATED, SIGNED AND DELIVERED AT MILIMANI THIS 26TH DAY OF FEBRUARY, 2026.
NJOROGE BENJAMIN K.
JUDGE
In the presence of:
Miss Magla for the Applicant/Applicant.
Mr. Onyango Respondent
Peter Wabwire - Court Assistant.
Background Facts
2. The Applicant moved the Court vide the Notice of Motion dated 19th June 2025 seeking the following orders;
1) Spent
2) Spent
3) Spent
4) Pending the hearing and determination of this application and the intended appeal, the court to issue an order of stay of execution of the judgment issued on 22nd May 2025 and all the consequential orders thereto.
5) The costs of this application be provided for.
6) The Court do make any such further orders and issue any other relief it may deem just to grant in the interest of justice.
3. The Application was supported by the grounds on the face of it and by the Affidavit of Nazir Surani . He stated that Judgment in MCCC/E4062/2023 was delivered on 22nd May 2025 by Hon. William Lopokoiyit , dismissing the Applicant’s suit and awarding costs to the Respondent. Soon after, the Respondent moved with notable haste to initiate execution by writing to the Trial Court on 23rd May 2025, requesting the extraction of the decree and assessment of costs.
4. The Applicant contended that unless execution is stayed, it will suffer irreparable harm. This is because its core business of supplying petroleum products would be disrupted, adversely affecting its cash flow and contractual obligations to third parties. Further, execution prior to the hearing and determination of the intended appeal would render the appeal nugatory. This would undermine the Applicant’s right of appeal and defeat the ends of justice.
5. In response, the Respondent vide its Replying Affidavit, sworn on 29th July 2025, contended that the Application is riddled with misrepresentation and misapplication of the law relating to stay of execution. That it is overtaken by events, and does not disclose plausible grounds for the grant of the reliefs sought.
6. The Judgment of the Court made on 22nd May 2025 dismissed the Appellant’s suit against the Respondent, a resultant holding of which is a negative order, whose execution is incapable of being stayed. Further, in any event, it does not meet the mandatory requirements for the grant of an order for stay of execution.
7. In a Further Affidavit sworn on 13th August 2025, the Applicant pointed out that the Respondent’s contention that the judgment constitutes a “negative order” incapable of execution is erroneous. This is because the judgment dismissed the Applicant’s claim and expressly awarded costs to the Respondent. That the costs form an integral and executable part of the decree.
8. Indeed, the Respondent has already taken active steps toward execution by seeking the extraction of the decree and assessment of costs, demonstrating that enforcement is imminent. It is well established that a decree for costs is executable, and the impending recovery of such costs justifies the present application for stay so as to preserve the substratum of the appeal.
9. In any event, the Applicant’s Memorandum of Appeal dated 18th June 2025 expressly challenges the entirety of the judgment, including the award of costs, thereby further negating the Respondent’s assertion that the judgment is incapable of execution.
Issues for determination
10. Having considered the Application, the response and the written submissions, the Court finds that the only issue for determination is;
a) Whether an order of stay of execution should issue.
Analysis
11. An order for stay of execution pending appeal is governed by Order 42 Rule 6 of the Civil Procedure Rules . In essence, an Applicant is required to show that substantial loss will be suffered if the stay is denied, to furnish security for the due performance of the decree that may ultimately be binding, and to bring the application without undue delay.
12. Order 42 rule 6(1) of the Civil Procedure Rules provides that: -
“No appeal or a 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 orders thereon as may to it seem just, 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 the orders set aside.”
13. Further Order 42, rule 6(2) states: -
“No order for stay of execution shall be made under sub-rule (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.”
14. Before proceeding further, the Court notes that the Respondent argued that a stay of execution cannot apply against the award of costs as this is not the subject of an Appeal. However, a cursory look at the Memorandum of Appeal dated 18th June 2025 reveals that the said Appeal is “against the whole of the said judgment and any other consequential orders”. Thus, the Applicant is also appealing against the award of costs.
15. Substantial loss – The second consideration is whether the Applicant has illustrated that they will suffer substantial loss if the stay is not granted. The Applicant is apprehensive that if the stay of execution is not granted pending the determination of this appeal, the Respondent will proceed with the execution of the orders earlier issued by the Subordinate Court. Thus, the Applicant herein shall suffer substantial loss being that it will be made to part with a colossal sum of not less than Kshs. 550,000/= as costs payable to the Respondent. That this loss is of real worth and value, notwithstanding its smallness or greatness.
16. On the other hand, the Respondent submitted that the Appellant has not demonstrated how the pursuit of the costs awarded in the Trial Court would render the Appeal nugatory. That they have not demonstrated that the Respondent is a company of straw incapable of reimbursing, in the unfortunate and unlikely event that the Court overturns the decision of the Trial Court on the issue of costs.
17. Notably, the Respondent has not demonstrated that it has the means and capacity to refund the Applicant. In the instant case, the Applicant is likely to suffer substantial loss.
18. Delay - the judgment in the Trial Court was delivered on 22nd May 2025, and the present Application is dated 19th June 2025. Thus, the Application was filed without undue delay.
19. Security – The purpose of security was clearly enunciated in Arun C. Sharma v Ashana Raikundalia t/a Rairundalia & Co. Advocates & 2 others [2014] eKLR , where the court stated: -
“ The purpose of the security needed under Order 42 is to guarantee the due performance of such decree or order as may ultimately be binding on the applicant. It is not to punish the judgment debtor…. Civil process is quite different because in civil process the judgment is like a debt hence the applicants become and are judgment debtors in relation to the respondent. That is why any security given under Order 42 rule 6 of the Civil Procedure Rules acts as security for due performance of such decree or order as may ultimately be binding on the applicants. I presume the security must be one which can serve that purpose.”
20. Applicant stated in its Supporting Affidavit that it is ready and willing to furnish security for the due performance of the decree as a condition for the grant of stay pending the hearing and determination of the intended appeal
21. In the Court of Appeal case of Housing Finance Company of Kenya v Sharok Kher Mohamed Ali Hirji & another [2015] eKLR , it was stated: -
“In seeking to balance the interests of the respective parties, the approach we have always taken in determining whether or not to grant a stay of execution is to ensure that applicants are not denied their opportunity to ventilate their legal cases as afforded under the laws through the appeal process, with the possibility of success, while at the same time, respondents are not denied the fruit of judgement in their favour and their rights are safeguarded.”
22. Considering all relevant factors and in order not to render the intended appeal nugatory, the Court allows the application for stay of execution pending appeal on condition that the Applicant deposits a sum of Kshs.550,000.00 into Court as security for this appeal within 30 days from the date of this Ruling. In default of compliance within the stipulated time, this Application shall be deemed to have been dismissed with costs, and the Respondent shall be at liberty to execute.
Determination
23. The Applicant’s Application by way of a Notice of Motion dated 19th June, 2025 is allowed in the following terms;
a) THAT Pending the hearing and determination of this application and the intended appeal, the Court HEREBY issues an order of stay of execution of the judgment issued on 22nd May 2025 and all the consequential orders thereto.
b) THAT the costs of this application be costs in the cause.
c) THAT this is on condition that the Applicant deposits a sum of Kshs.550,000.00 into Court as security for this appeal, within Thirty (30) days from the date of this Ruling. In default of compliance within the stipulated time, this Application shall be deemed to have been dismissed with costs, and the Respondent shall be at liberty to execute
d) THAT the Court will proceed to issue directions to facilitate The hearing of the Appeal.
24. It is so ordered.
DATED, SIGNED AND DELIVERED AT MILIMANI THIS 26TH DAY OF FEBRUARY, 2026.
NJOROGE BENJAMIN K.
JUDGE
In the presence of:
Miss Magla for the Applicant/Applicant.
Mr. Onyango Respondent
Peter Wabwire - Court Assistant.