1. This ruling is in respect to the application dated 16th March 2026 which is expressed to be brought under Sections 1A, 1B and 3A of the Civil Procedure Act and Order 42 Rule 6, Order 50 Rules 1 and 3 of the Civil Procedure Rules. The Applicant seeks an order of stay of execution of the ruling delivered by Hon. Christine A. Ogweno (SRM) on 2nd October 2025 in Milimani CMCC No. E10362 of 2021 pending the hearing and determination of the appeal, together with costs of the application.
2. The record shows that the 1st Respondent instituted garnishee proceedings in the subordinate court against the 2nd and 3rd Respondents, who were judgment debtors, and joined the Applicant, a firm of advocates, as an interested party together with Equity Bank Limited as garnishee.
3. The dispute concerns a sum of Kshs. 5,144,000 received by the Applicant on behalf of the 2nd and 3rd Respondents. The Applicant maintained that it had lawfully appropriated part of the money as legal fees pursuant to a Letter of Instructions dated 5th November 2024. The trial court partly accepted that position but nevertheless ordered the Applicant to release Kshs. 3,444,000 to the decree holder thereby prompting the present appeal and application for stay.
The Applicant's Case
4. The application is supported by the affidavit of Hiram Thimba sworn on 16th March 2026 and a Further Supporting Affidavit sworn on 14th April 2026. The Applicant avers that immediately after delivery of the impugned ruling it filed a Memorandum of Appeal and applied for certified copies of the ruling. It contends that the delay in filing the present application was occasioned solely by the disappearance of the lower court file, a fact allegedly confirmed by the court registry on 27th November 2025 through the Court Tracking System (CTS). According to the Applicant, the application was filed immediately after the file was traced and certified copies became available.
5. The Applicant further states that unless stay is granted, execution will proceed pursuant to a proclamation issued by BetaBase Auctioneers, thereby rendering the pending appeal nugatory. It argues that the appeal raises serious questions of law, particularly whether the trial court erred in directing that part of the agreed advocate-client fees be subjected to taxation notwithstanding a valid fee agreement contrary to Section 45 of the Advocates Act. It also asserts that it acted strictly in accordance with the Letter of Instructions authorizing deduction of legal fees from the funds held on behalf of the judgment debtors. The Applicant expresses willingness to furnish reasonable security in the sum of Kshs. 500,000 or such amount as the Court may direct.
6. In its written submissions, the Applicant submits that the application satisfies the requirements of Order 42 Rule 6 because the delay has been satisfactorily explained, substantial loss has been demonstrated and the appeal raises arguable issues. Reliance is placed on Kenya Shell Ltd vs. Benjamin Karuga Kibiru & Another [1986] eKLR , James Wangalwa & Another vs. Agnes Naliaka Cheseto [2012] eKLR , RWW vs. EKW [2019] eKLR , and Environment and Land Appeal No. 8 of 2021 (Kitale ELC) on the principles governing delay and substantial loss.
The Respondents' Case
7. The application is opposed through the Replying Affidavit sworn by Liu Yong , a director of the 2nd Respondent, on 31st March 2026. The Respondents contend that the application was filed almost five months after delivery of the impugned ruling without reasonable explanation, contrary to the requirements of Order 42 Rule 6 of the Civil Procedure Rules. They further submit that the Applicant has neither demonstrated substantial loss nor offered adequate security for the due performance of the decree.
8. The Respondents further depose that the Applicant received Kshs. 5,400,000 in trust for the judgment debtors but failed to account for the money despite repeated opportunities before the subordinate court. They contend that the Applicant merely repeats arguments that were rejected by the trial court and has not demonstrated any error warranting interference by this Court. They add that the Applicant possesses professional indemnity insurance and therefore cannot genuinely claim inability to comply with the decree. They urge the Court to dismiss the application or, in the alternative, order deposit of the decretal sum of Kshs. 3,444,000 in a joint interest-earning account.
Issues for Determination
9. The sole issue falling for determination is whether the Applicant has satisfied the conditions for grant of stay of execution pending appeal under Order 42 Rule 6(2) of the Civil Procedure Rules (CPR) .
Analysis and Determination
10. The principles governing applications for stay pending appeal are settled. Under Order 42 Rule 6(2) CPR an applicant must demonstrate that the application has been brought without unreasonable delay, that substantial loss may result unless the order is granted, and that security for the due performance of the decree has been offered.
11. In Butt vs. Rent Restriction Tribunal [1982] KLR 417 , the Court of Appeal held that the discretion to grant stay should be exercised in a manner that does not render an appeal nugatory while at the same time safeguarding the successful litigant's right to enjoy the fruits of his judgment.
12. On delay, the impugned ruling was delivered on 2nd October 2025 while the present application was filed on 16th March 2026. Ordinarily such delay would require satisfactory explanation. The Applicant has attributed the delay to the disappearance of the lower court file and has exhibited material showing that it requested certified copies of proceedings shortly after delivery of the ruling and that the registry acknowledged that the file had gone missing. The Respondents have not controverted the allegation that the lower court file became unavailable. In the circumstances of this case, I am persuaded that the delay has been satisfactorily explained and cannot be described as inordinate.
13. As regards substantial loss, the Court in Kenya Shell Ltd vs. Benjamin Karuga Kibiru & Another [1986] eKLR held that substantial loss is the cornerstone of an application for stay. Similarly, in James Wangalwa & Another vs. Agnes Naliaka Cheseto [2012] eKLR , the Court observed that substantial loss is what has to be prevented by preserving the subject matter of the appeal.
14. The Applicant has demonstrated that execution has already commenced through proclamation of its movable assets. It has also raised arguable grounds challenging the legality of the subordinate court's treatment of the advocate-client fee agreement under Section 45 of the Advocates Act. Without expressing any conclusive view on the merits of the appeal, I am satisfied that execution at this stage may render the appeal nugatory if the Applicant ultimately succeeds.
15. The remaining consideration is security. The Applicant has indicated its willingness to furnish security although the amount proposed is considerably lower than the decretal sum. The purpose of security is to balance the competing rights of the parties by safeguarding the decree holder while preserving the Applicant's right of appeal. As stated in Focin Motorcycle Co. Ltd vs. Ann Wambui Wangui & Another [2018] eKLR , security is a mandatory requirement under Order 42 Rule 6(2)(b).
16. Having considered the pleadings, affidavits, rival submissions and the applicable law, I am satisfied that the Applicant has demonstrated sufficient cause for grant of stay pending appeal.
17. Accordingly, I make the following orders:
a) There shall be a stay of execution of the ruling and consequential orders issued on 2nd October 2025 in Milimani CMCC No. E10362 of 2021 pending the hearing and determination of the appeal.
b) The stay is conditional upon the Applicant depositing the sum of Kshs. 3,444,000 in a joint interest-earning account in the names of counsel for the Applicant and the 1st Respondent within thirty (30) days from the date hereof.
c) In default of compliance with Order (2) above, the order of stay shall automatically lapse.
d) Costs of the application shall abide the outcome of the appeal.
It is so ordered.
2. The record shows that the 1st Respondent instituted garnishee proceedings in the subordinate court against the 2nd and 3rd Respondents, who were judgment debtors, and joined the Applicant, a firm of advocates, as an interested party together with Equity Bank Limited as garnishee.
3. The dispute concerns a sum of Kshs. 5,144,000 received by the Applicant on behalf of the 2nd and 3rd Respondents. The Applicant maintained that it had lawfully appropriated part of the money as legal fees pursuant to a Letter of Instructions dated 5th November 2024. The trial court partly accepted that position but nevertheless ordered the Applicant to release Kshs. 3,444,000 to the decree holder thereby prompting the present appeal and application for stay.
The Applicant's Case
4. The application is supported by the affidavit of Hiram Thimba sworn on 16th March 2026 and a Further Supporting Affidavit sworn on 14th April 2026. The Applicant avers that immediately after delivery of the impugned ruling it filed a Memorandum of Appeal and applied for certified copies of the ruling. It contends that the delay in filing the present application was occasioned solely by the disappearance of the lower court file, a fact allegedly confirmed by the court registry on 27th November 2025 through the Court Tracking System (CTS). According to the Applicant, the application was filed immediately after the file was traced and certified copies became available.
5. The Applicant further states that unless stay is granted, execution will proceed pursuant to a proclamation issued by BetaBase Auctioneers, thereby rendering the pending appeal nugatory. It argues that the appeal raises serious questions of law, particularly whether the trial court erred in directing that part of the agreed advocate-client fees be subjected to taxation notwithstanding a valid fee agreement contrary to Section 45 of the Advocates Act. It also asserts that it acted strictly in accordance with the Letter of Instructions authorizing deduction of legal fees from the funds held on behalf of the judgment debtors. The Applicant expresses willingness to furnish reasonable security in the sum of Kshs. 500,000 or such amount as the Court may direct.
6. In its written submissions, the Applicant submits that the application satisfies the requirements of Order 42 Rule 6 because the delay has been satisfactorily explained, substantial loss has been demonstrated and the appeal raises arguable issues. Reliance is placed on Kenya Shell Ltd vs. Benjamin Karuga Kibiru & Another [1986] eKLR , James Wangalwa & Another vs. Agnes Naliaka Cheseto [2012] eKLR , RWW vs. EKW [2019] eKLR , and Environment and Land Appeal No. 8 of 2021 (Kitale ELC) on the principles governing delay and substantial loss.
The Respondents' Case
7. The application is opposed through the Replying Affidavit sworn by Liu Yong , a director of the 2nd Respondent, on 31st March 2026. The Respondents contend that the application was filed almost five months after delivery of the impugned ruling without reasonable explanation, contrary to the requirements of Order 42 Rule 6 of the Civil Procedure Rules. They further submit that the Applicant has neither demonstrated substantial loss nor offered adequate security for the due performance of the decree.
8. The Respondents further depose that the Applicant received Kshs. 5,400,000 in trust for the judgment debtors but failed to account for the money despite repeated opportunities before the subordinate court. They contend that the Applicant merely repeats arguments that were rejected by the trial court and has not demonstrated any error warranting interference by this Court. They add that the Applicant possesses professional indemnity insurance and therefore cannot genuinely claim inability to comply with the decree. They urge the Court to dismiss the application or, in the alternative, order deposit of the decretal sum of Kshs. 3,444,000 in a joint interest-earning account.
Issues for Determination
9. The sole issue falling for determination is whether the Applicant has satisfied the conditions for grant of stay of execution pending appeal under Order 42 Rule 6(2) of the Civil Procedure Rules (CPR) .
Analysis and Determination
10. The principles governing applications for stay pending appeal are settled. Under Order 42 Rule 6(2) CPR an applicant must demonstrate that the application has been brought without unreasonable delay, that substantial loss may result unless the order is granted, and that security for the due performance of the decree has been offered.
11. In Butt vs. Rent Restriction Tribunal [1982] KLR 417 , the Court of Appeal held that the discretion to grant stay should be exercised in a manner that does not render an appeal nugatory while at the same time safeguarding the successful litigant's right to enjoy the fruits of his judgment.
12. On delay, the impugned ruling was delivered on 2nd October 2025 while the present application was filed on 16th March 2026. Ordinarily such delay would require satisfactory explanation. The Applicant has attributed the delay to the disappearance of the lower court file and has exhibited material showing that it requested certified copies of proceedings shortly after delivery of the ruling and that the registry acknowledged that the file had gone missing. The Respondents have not controverted the allegation that the lower court file became unavailable. In the circumstances of this case, I am persuaded that the delay has been satisfactorily explained and cannot be described as inordinate.
13. As regards substantial loss, the Court in Kenya Shell Ltd vs. Benjamin Karuga Kibiru & Another [1986] eKLR held that substantial loss is the cornerstone of an application for stay. Similarly, in James Wangalwa & Another vs. Agnes Naliaka Cheseto [2012] eKLR , the Court observed that substantial loss is what has to be prevented by preserving the subject matter of the appeal.
14. The Applicant has demonstrated that execution has already commenced through proclamation of its movable assets. It has also raised arguable grounds challenging the legality of the subordinate court's treatment of the advocate-client fee agreement under Section 45 of the Advocates Act. Without expressing any conclusive view on the merits of the appeal, I am satisfied that execution at this stage may render the appeal nugatory if the Applicant ultimately succeeds.
15. The remaining consideration is security. The Applicant has indicated its willingness to furnish security although the amount proposed is considerably lower than the decretal sum. The purpose of security is to balance the competing rights of the parties by safeguarding the decree holder while preserving the Applicant's right of appeal. As stated in Focin Motorcycle Co. Ltd vs. Ann Wambui Wangui & Another [2018] eKLR , security is a mandatory requirement under Order 42 Rule 6(2)(b).
16. Having considered the pleadings, affidavits, rival submissions and the applicable law, I am satisfied that the Applicant has demonstrated sufficient cause for grant of stay pending appeal.
17. Accordingly, I make the following orders:
a) There shall be a stay of execution of the ruling and consequential orders issued on 2nd October 2025 in Milimani CMCC No. E10362 of 2021 pending the hearing and determination of the appeal.
b) The stay is conditional upon the Applicant depositing the sum of Kshs. 3,444,000 in a joint interest-earning account in the names of counsel for the Applicant and the 1st Respondent within thirty (30) days from the date hereof.
c) In default of compliance with Order (2) above, the order of stay shall automatically lapse.
d) Costs of the application shall abide the outcome of the appeal.
It is so ordered.