1. The Applicants through Notice of Motion dated 15 th May, 2025 seek orders as follows;
1) Spent.
2) This honourable court be pleased to grant the Applicants leave to appeal out of time in respect to the Judgment/Decree delivered in Nyahururu CMCC No. E086 of 2023 by Hon. W. Wang’ang’a.
3) Spent.
4) This honourable court be pleased to grant an order of stay of execution of the Judgment and/or the Decree delivered on or about 3 rd March, 2025 and all consequential orders arising therefrom pending the hearing and determination of the intended appeal herein.
5) This honourable court be pleased to issue an order allowing the Applicants to deposit the entire decretal sum in a joint interest earning account only as security pending hearing and determination of the intended appeal herein.
6) This honourable court be pleased to issue any other order as it may deem just, appropriate and expedient in the interest of justice.
7) Costs of this application be provided for.
2. The application is premised on ground that; Judgment in Nyahururu CMCC No. E087 of 2023 was delivered on 3 rd March, 2025 in favour of the Plaintiff/Respondent as against the Defendant/Applicants in the following terms; liability 100% against the Applicants, general damages Kshs.300,000/-, special damages Kshs.3,550/- plus costs and interest subjection to liability, total Kshs.303,550/-.
3. That delay in filing of the appeal was inadvertent and excusable due to delay in receiving instructions from the instructing clients and now time allowed to file an appeal has run out; and the Applicants are apprehensive that execution proceedings may commence to their detriment.
4. That the appeal has good chances of success; The Applicants stand to suffer substantial loss of damage and the intended appeal will be rendered nugatory if stay is not granted.
5. That the application has been made timely and the Respondent will not be prejudiced if the orders sought are not granted and it is in the interest of justice that the orders sought be granted, and, the Applicants are willing and ready to deposit the entire sum in the joint interest earning account as a condition for allowing the application for leave to appeal out of time.
6. The application is supported by an affidavit deposed by Linda Chemutai, an advocate in conduct of the matter who reiterates grounds relied on and adds that if the application is not allowed the Applicants will be denied the right to be heard on appeal and suffer substantial loss and damage and it is in the interest of justice that the application be allowed.
7. In a response thereto, the Respondent avers that the Judgment was delivered on 3 rd March, 2025, and the Applicants did not take any steps until the instant application was filed. That reasons given are to delay and do not meet the threshold for grant of leave to appeal out of time.
8. That the Applicants’ conduct is aimed at ensuring delay in the Respondent enjoying the fruits of the judgment, 7 months down the line owing to the Applicants’ conduct and indolence. And that the application for stay of execution cannot pass the test that requires the application to be brought before court without unreasonable delay.
9. I have considered the application, supporting and opposing affidavits, annexures to the supporting affidavit and rival submissions. At the outset it would be prudent to consider the question of leave to appeal out of time. Section 79G of the Civil Procedure Act provides as follows;
Every appeal from a subordinate court to the High Court shall be filed within a period of thirty days from the date of the decree or order appealed against, excluding from such period any time which the lower court may certify as having been requisite for the preparation and delivery to the appellant of a copy of the decree or order:
Provided that an appeal may be admitted out of time if the appellant satisfies the court that he had good and sufficient cause for not filing the appeal in time.
10. The Applicants are obligated to demonstrate that they have a good and sufficient cause for not filing the appeal within the 30 days from the date of decree. The Judgment was delivered on 3 rd March, 2025 and the application was filed on 15 th May, 2025. None of the parties have stated whether a decree had been drawn. Being a civil matter, the Applicants were to appeal within 30 days of the date of decree. Thereafter, the Applicants stayed for 30 more days prior to instituting the application. The reason given for the delay is that the instructing client delayed in giving instructions. It is explained that the claims officer who received the terms left the employment of M/s Directline Assurance Ltd before issuing instructions and when counsel tried following upon payment his client who was dissatisfied with the judgment gave instructions for filing of the appeal.
11. The delay was for a month and if the insurer delayed in giving instructions, counsel could not have acted without instructions. For that reason, the explanation given is plausible.
12. Principles governing grant of stay of execution pending appeal are discretionary and enshrined in Order 42 Rule 6(1) (2) of the Civil Procedure Rules that provide 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 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.
13. To grant stay of execution, this court must be satisfied that substantial loss may result if the order sought is denied. Such a loss that is significant was detailed in Kenya Shell Ltd v Benjamin Karuga Kibiru & Another [1986] eKLR as follows;
“…substantial loss, and such loss cannot be inferred in this case.
But this court must look at the matter from the point of view of rule 5(2) of Court of Appeal Rules, and here the test would be whether the appeal would be rendered nugatory, unless payment of the decretal sum were stayed. It is not normal in money decrees for the appeal to be rendered nugatory, if payment is made. The affidavit in support has not set out any information to show that the appeal will be nugatory.”
14. In James Wangalwa & Another v Agnes Naliaka Chesoto [2012] eKLR the court stated that;
“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, does not in itself amount to substantial loss under Order 42 Rule 6 of the CPR. This is so because execution is a lawful process.
The applicant must establish other factors which show that the execution will create a state of 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 Silverstein N. Chesoni [2002] 1KLR 867, and also in the case of Mukuma V Abuoga quoted above. The last case, referring to the exercise of discretion by the High Court and the Court of Appeal in the granting stay of execution, under Order 42 of the CPR and Rule 5(2) (b) of the Court of Appeal Rules, respectively, emphasized the centrality of substantial loss thus:
“…the issue of substantial loss is the cornerstone of both jurisdictions. Substantial loss is what has to be prevented by preserving the status quo because such loss would render the appeal nugatory.”
15. The Applicants argue that if the order sought is not granted, the Respondent may levy execution against them rendering the appeal nugatory yet they have an arguable appeal with high chances of success, which will make them suffer irreparable loss. And, if the Respondent is paid he may deal with the money in a manner prejudicial to the Applicants and if the appeal is successful they will not be able to recover the same.
16. As to the Respondent, it is argued that he has waited for justice for more than two (2) years having suffered injuries in a road traffic accident and stay of execution would be an extension of the wait hence he will suffer prejudice.
17. No doubt the Respondent is bent on proceeding with execution having waited to be compensated for injuries sustained. The intended appeal is on damages awarded. The Applicants proposed an award of Kshs.100,000/- but the trial court awarded a total sum of Kshs.300,000/- that the Respondent proposed. The argument is that no reasons were given for the award granted which made it arbitrary. This is the question the court will be interrogating.
18. Appreciating that the Respondent has the right to enjoy fruits of judgment, this must be balanced on the question whether the Respondent will be capable of refunding some of the money should the appeal succeed, the Respondent has not suggested that he is capable of doing it. In National Industrial Credit Bank Ltd v Aquinas Francis Wasike & Another [2006] KECA 333 (KLR) the Court of Appeal stated that;
“Once an applicant expresses a reasonable fear that a respondent would be unable to pay back the decretal sum, the evidential burden must then shift to the respondent to show what resources he has since that is a matter which is peculiarly within his knowledge.”
19. The Applicants expressed the apprehension of inability on the part of the Respondent to repay the decretal sum should the appeal succeed, but the Respondent failed to demonstrate that she has sufficient capacity to refund the sum. This being the case, there is a likelihood of the Applicants suffering loss in case the appeal succeeds.
20. The Applicants are willing to furnish security for due performance. They have proposed to deposit the entire sum in a joint interest earning account. However, the Respondent dismisses the entire application as an intent to delay justice. The proposal being unacceptable they cannot be obligated to accept deposit of the sum in the joint interest earning account.
21. In the premises, I grant orders thus;
(i) The Applicants be and are hereby granted leave to appeal out of time within 30 days of today, 12 th February, 2026.
(ii) There be stay of execution of the Judgment and decree in Nyahururu CMCC No. E087 of 2023 pending hearing and determination of the intended appeal, on condition that Kshs.150,000/- be paid to the Respondent and the outstanding balance of the decretal sum be deposited in court for due performance within 30 days of today.
(iii) In default, orders granted to stand vacated and execution to issue.
(iv) Costs of the application to abide the appeal.
22. It is so ordered.
HCC MISC. APP. E017 OF 2025 (RUL.) Page 2 of 2
1) Spent.
2) This honourable court be pleased to grant the Applicants leave to appeal out of time in respect to the Judgment/Decree delivered in Nyahururu CMCC No. E086 of 2023 by Hon. W. Wang’ang’a.
3) Spent.
4) This honourable court be pleased to grant an order of stay of execution of the Judgment and/or the Decree delivered on or about 3 rd March, 2025 and all consequential orders arising therefrom pending the hearing and determination of the intended appeal herein.
5) This honourable court be pleased to issue an order allowing the Applicants to deposit the entire decretal sum in a joint interest earning account only as security pending hearing and determination of the intended appeal herein.
6) This honourable court be pleased to issue any other order as it may deem just, appropriate and expedient in the interest of justice.
7) Costs of this application be provided for.
2. The application is premised on ground that; Judgment in Nyahururu CMCC No. E087 of 2023 was delivered on 3 rd March, 2025 in favour of the Plaintiff/Respondent as against the Defendant/Applicants in the following terms; liability 100% against the Applicants, general damages Kshs.300,000/-, special damages Kshs.3,550/- plus costs and interest subjection to liability, total Kshs.303,550/-.
3. That delay in filing of the appeal was inadvertent and excusable due to delay in receiving instructions from the instructing clients and now time allowed to file an appeal has run out; and the Applicants are apprehensive that execution proceedings may commence to their detriment.
4. That the appeal has good chances of success; The Applicants stand to suffer substantial loss of damage and the intended appeal will be rendered nugatory if stay is not granted.
5. That the application has been made timely and the Respondent will not be prejudiced if the orders sought are not granted and it is in the interest of justice that the orders sought be granted, and, the Applicants are willing and ready to deposit the entire sum in the joint interest earning account as a condition for allowing the application for leave to appeal out of time.
6. The application is supported by an affidavit deposed by Linda Chemutai, an advocate in conduct of the matter who reiterates grounds relied on and adds that if the application is not allowed the Applicants will be denied the right to be heard on appeal and suffer substantial loss and damage and it is in the interest of justice that the application be allowed.
7. In a response thereto, the Respondent avers that the Judgment was delivered on 3 rd March, 2025, and the Applicants did not take any steps until the instant application was filed. That reasons given are to delay and do not meet the threshold for grant of leave to appeal out of time.
8. That the Applicants’ conduct is aimed at ensuring delay in the Respondent enjoying the fruits of the judgment, 7 months down the line owing to the Applicants’ conduct and indolence. And that the application for stay of execution cannot pass the test that requires the application to be brought before court without unreasonable delay.
9. I have considered the application, supporting and opposing affidavits, annexures to the supporting affidavit and rival submissions. At the outset it would be prudent to consider the question of leave to appeal out of time. Section 79G of the Civil Procedure Act provides as follows;
Every appeal from a subordinate court to the High Court shall be filed within a period of thirty days from the date of the decree or order appealed against, excluding from such period any time which the lower court may certify as having been requisite for the preparation and delivery to the appellant of a copy of the decree or order:
Provided that an appeal may be admitted out of time if the appellant satisfies the court that he had good and sufficient cause for not filing the appeal in time.
10. The Applicants are obligated to demonstrate that they have a good and sufficient cause for not filing the appeal within the 30 days from the date of decree. The Judgment was delivered on 3 rd March, 2025 and the application was filed on 15 th May, 2025. None of the parties have stated whether a decree had been drawn. Being a civil matter, the Applicants were to appeal within 30 days of the date of decree. Thereafter, the Applicants stayed for 30 more days prior to instituting the application. The reason given for the delay is that the instructing client delayed in giving instructions. It is explained that the claims officer who received the terms left the employment of M/s Directline Assurance Ltd before issuing instructions and when counsel tried following upon payment his client who was dissatisfied with the judgment gave instructions for filing of the appeal.
11. The delay was for a month and if the insurer delayed in giving instructions, counsel could not have acted without instructions. For that reason, the explanation given is plausible.
12. Principles governing grant of stay of execution pending appeal are discretionary and enshrined in Order 42 Rule 6(1) (2) of the Civil Procedure Rules that provide 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 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.
13. To grant stay of execution, this court must be satisfied that substantial loss may result if the order sought is denied. Such a loss that is significant was detailed in Kenya Shell Ltd v Benjamin Karuga Kibiru & Another [1986] eKLR as follows;
“…substantial loss, and such loss cannot be inferred in this case.
But this court must look at the matter from the point of view of rule 5(2) of Court of Appeal Rules, and here the test would be whether the appeal would be rendered nugatory, unless payment of the decretal sum were stayed. It is not normal in money decrees for the appeal to be rendered nugatory, if payment is made. The affidavit in support has not set out any information to show that the appeal will be nugatory.”
14. In James Wangalwa & Another v Agnes Naliaka Chesoto [2012] eKLR the court stated that;
“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, does not in itself amount to substantial loss under Order 42 Rule 6 of the CPR. This is so because execution is a lawful process.
The applicant must establish other factors which show that the execution will create a state of 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 Silverstein N. Chesoni [2002] 1KLR 867, and also in the case of Mukuma V Abuoga quoted above. The last case, referring to the exercise of discretion by the High Court and the Court of Appeal in the granting stay of execution, under Order 42 of the CPR and Rule 5(2) (b) of the Court of Appeal Rules, respectively, emphasized the centrality of substantial loss thus:
“…the issue of substantial loss is the cornerstone of both jurisdictions. Substantial loss is what has to be prevented by preserving the status quo because such loss would render the appeal nugatory.”
15. The Applicants argue that if the order sought is not granted, the Respondent may levy execution against them rendering the appeal nugatory yet they have an arguable appeal with high chances of success, which will make them suffer irreparable loss. And, if the Respondent is paid he may deal with the money in a manner prejudicial to the Applicants and if the appeal is successful they will not be able to recover the same.
16. As to the Respondent, it is argued that he has waited for justice for more than two (2) years having suffered injuries in a road traffic accident and stay of execution would be an extension of the wait hence he will suffer prejudice.
17. No doubt the Respondent is bent on proceeding with execution having waited to be compensated for injuries sustained. The intended appeal is on damages awarded. The Applicants proposed an award of Kshs.100,000/- but the trial court awarded a total sum of Kshs.300,000/- that the Respondent proposed. The argument is that no reasons were given for the award granted which made it arbitrary. This is the question the court will be interrogating.
18. Appreciating that the Respondent has the right to enjoy fruits of judgment, this must be balanced on the question whether the Respondent will be capable of refunding some of the money should the appeal succeed, the Respondent has not suggested that he is capable of doing it. In National Industrial Credit Bank Ltd v Aquinas Francis Wasike & Another [2006] KECA 333 (KLR) the Court of Appeal stated that;
“Once an applicant expresses a reasonable fear that a respondent would be unable to pay back the decretal sum, the evidential burden must then shift to the respondent to show what resources he has since that is a matter which is peculiarly within his knowledge.”
19. The Applicants expressed the apprehension of inability on the part of the Respondent to repay the decretal sum should the appeal succeed, but the Respondent failed to demonstrate that she has sufficient capacity to refund the sum. This being the case, there is a likelihood of the Applicants suffering loss in case the appeal succeeds.
20. The Applicants are willing to furnish security for due performance. They have proposed to deposit the entire sum in a joint interest earning account. However, the Respondent dismisses the entire application as an intent to delay justice. The proposal being unacceptable they cannot be obligated to accept deposit of the sum in the joint interest earning account.
21. In the premises, I grant orders thus;
(i) The Applicants be and are hereby granted leave to appeal out of time within 30 days of today, 12 th February, 2026.
(ii) There be stay of execution of the Judgment and decree in Nyahururu CMCC No. E087 of 2023 pending hearing and determination of the intended appeal, on condition that Kshs.150,000/- be paid to the Respondent and the outstanding balance of the decretal sum be deposited in court for due performance within 30 days of today.
(iii) In default, orders granted to stand vacated and execution to issue.
(iv) Costs of the application to abide the appeal.
22. It is so ordered.
HCC MISC. APP. E017 OF 2025 (RUL.) Page 2 of 2