1. The Applicant, Irene Kagwiria Kiraithe, moved this Court by a Notice of Motion dated 3rd September 2026 supported by a supporting affidavit filed on even date. The Applicant in the main seeks an order of stay of execution of the decree and warrants of attachment issued on 27th August 2026 in Meru Small Claims Court Commercial Claim No. E271 of 2026, pending the hearing and determination of the appeal.
2. The Applicant, in particular, seeks to restrain the Respondent, whether acting personally, through Lifeline Auctioneers or through her agents, from executing the decree against her.
3. The Applicant's case is that, on 13th July 2026, the Meru Small Claims Court delivered judgment dismissing her claim, allowing the Respondent's counterclaim and ordering her to pay the Respondent Kshs. 282,000/=.
4. Following the judgment, the Respondent instructed Lifeline Auctioneers to execute the decree. The Court subsequently issued warrants of attachment on 27th August 2026, and on 1st September 2026, the Applicant's household goods were proclaimed. The Applicant was given seven days within which to settle the decretal sum of Kshs. 282,000/= together with auctioneer's charges of Kshs. 48,060/=.
5. The Applicant, being aggrieved by the said judgment, filed an appeal and the instant application. The Applicant contends that the judgment of the trial court raises arguable questions, particularly concerning the computation of the alleged loan and interest and the application of the in duplum rule. She further contends that unless execution is stayed, her household goods may be attached and sold before the appeal is heard, thereby occasioning her substantial loss and rendering the appeal nugatory.
6. The Applicant maintains that the application is brought without unreasonable delay. She also expresses her willingness to comply with such conditions as this Court may impose regarding security for the due performance of the decree.
7. The application is opposed by the Respondent, Jackline Ngugi Muthuri, through a Replying Affidavit sworn on 15th September 2026.
8. The Respondent contends that the Applicant has failed to satisfy the requirements for the grant of stay under Order 42 Rule 6(2) of the Civil Procedure Rules. In particular, the Respondent challenges the application on the grounds of delay, absence of substantial loss and failure to offer security for the due performance of the decree.
9. On delay, the Respondent points out that judgment is delivered on 13th July 2026, whereas the present application is filed on 3rd September 2026. She further observes that although the Memorandum of Appeal is filed on 11th August 2026, the application for stay is not filed until almost one month thereafter.
10. The Respondent also contends that the Applicant has engaged in an abuse of the court process. She states that on 2nd September 2026, the Applicant filed an application before the trial court seeking leave to settle the decretal amount by monthly instalments of Kshs. 10,000/=. According to the Respondent, the Applicant subsequently sought to withdraw that application after moving this Court. The Respondent characterizes that conduct as court-shuffling and forum shopping.
11. The Respondent further contends that the Applicant has not demonstrated that she will suffer substantial loss if execution proceeds. Rather, it is submitted that the Applicant continues to retain the benefit of the Respondent's money while the Respondent remains deprived of the fruits of her judgment.
12. Finally, the Respondent contends that the Applicant has failed to offer or deposit security for the due performance of the decree.
13. The parties were directed to file their submissions; the Applicant filed its submissions, but the Respondent did not file any.
14. In her written submissions dated 3rd September 2026, the Applicant submits that she satisfies the requirements for the grant of stay under Order 42 Rule 6 of the Civil Procedure Rules.
15. On substantial loss, the Applicant relies on RWW v EKW eKLR, Samvir Trustee Limited v Guardian Bank Limited and Antoine Ndiaye v African Virtual University (2015) eKLR for the proposition that the purpose of stay pending appeal is to preserve the subject matter and ensure that the appeal, if ultimately successful, is not rendered nugatory.
16. The Applicant submits that execution against her household goods, followed by their sale to third parties, would make recovery difficult and substantially undermine the efficacy of the appeal.
17. On delay, the Applicant submits that she acts promptly upon being served with the proclamation by Lifeline Auctioneers. She relies on Patel v EA Cargo Handling Services and Butt v Rent Restriction Tribunal (1982) KLR in support of the proposition that the Court has discretionary powers to prevent injustice and preserve the right of appeal.
18. On prejudice, the Applicant submits that the Respondent can adequately be protected by appropriate conditions as to security, whereas execution before the appeal is heard would expose the Applicant to prejudice that may not be capable of adequate compensation.
19. The principal issue for determination is whether the Applicant satisfies the requirements for the grant of stay of execution pending appeal.
20. The application falls for consideration under Order 42 Rule 6(2) of the Civil Procedure Rules. The provision requires an applicant seeking stay pending appeal to demonstrate that substantial loss may result unless the order for stay is made, that the application is made without unreasonable delay, and that such security as the Court may order for the due performance of the decree is given.
i. Substantial loss
21. Order 42 Rule 6(2)(a) places the burden upon the Applicant to demonstrate that substantial loss may result if stay is not granted. The requirement is substantive and is not satisfied merely by asserting that execution is imminent.
22. The importance of demonstrating substantial loss is explained by the Court of Appeal in Kenya Shell Ltd v Benjamin Karuga Kibiru & Another [1986] KLR 410, where Gachuhi JA states:
"Substantial loss in its various forms, is the cornerstone of both jurisdictions for granting a stay. That is what has to be prevented. Therefore, without this evidence it is difficult to see why the respondents should be kept out of their money."
23. In the present matter, Warrants were issued on 27th August 2026, and the Applicant's household goods were proclaimed on 1st September 2026. In the circumstances of this case, I find and hold that the execution process has reached a stage at which the Applicant's household goods are exposed to attachment and sale. This Court is satisfied that the Applicant faces a sufficient risk of substantial loss to warrant preserving the subject matter pending determination of the appeal.
24. Further, the Applicant also identifies arguable issues concerning the computation of the alleged loan and interest and the application of the in duplum rule. I find that the existence of an arguable appeal does not, by itself, establish substantial loss. It is, however, relevant when the Court considers whether execution should proceed in circumstances that may undermine the practical efficacy of the pending appeal.
ii. Whether the Application is Made Without Unreasonable Delay
25. The second requirement under Order 42 Rule 6(2)(b) is that the application is made without unreasonable delay. The trial court delivered its judgment on 13th July 2026 and granted a temporary stay of execution for thirty days. The Applicant thereafter filed the Memorandum of Appeal on 11th August 2026. Warrants of attachment were issued on 27th August 2026, while the proclamation was served on 1st September 2026. The present application is filed on 3rd September 2026.
26. Although the application is filed nearly two months after delivery of the judgment, the relevant consideration under Order 42 Rule 6(2)(b) is whether there is unreasonable delay in seeking stay in the circumstances of the case. The application is filed only two days after the Applicant's household goods were proclaimed.
27. I am not persuaded that the delay is unreasonable. I find that the Applicant moved this Court promptly once the execution process became imminent. The applicant therefore satisfied the requirement under Order 42 Rule 6(2)(b).
iii. Security for the Due Performance of the Decree
28. The third requirement under Order 42 Rule 6(2)(c) concerns security for the due performance of the decree. The requirement serves to balance the Applicant's right to pursue the appeal with the Respondent's corresponding right to enjoy the fruits of her judgment.
29. The Applicant expressed her willingness to abide by such conditions regarding security as this Court may impose. In the circumstances, I am of the considered view that the appropriate order is to grant the stay subject to the Applicant securing the decretal amount. This will ensure that the decretal sum is preserved while allowing the appeal to proceed to determination without execution against the Applicant's household property in the meantime.
30. Having considered the totality of the material before the Court, I find and hold that the Applicant satisfies the requirements for the grant of a conditional stay of execution pending appeal.
31. Consequently, the Notice of Motion dated 3rd September 2026 is allowed on the following terms:
i. There shall be a stay of execution of the decree and warrants of attachment issued on 27th August 2026 in Meru Small Claims Court Commercial Claim No. E271 of 2026, pending the hearing and determination of Civil Appeal No. E110 of 2026.
ii. The stay granted under paragraph (i) above shall be conditional upon the Applicant depositing the decretal sum of Kshs. 282,000/= in an interest-earning joint bank account in the names of the advocates for the Applicant and the Respondent within Ten (10) days from the date of this ruling.
iii. In default of compliance with paragraph (ii) above within the stipulated period, the order of stay shall automatically lapse.
iv. The costs of the application shall abide the outcome of the appeal.
32. Orders accordingly.
2. The Applicant, in particular, seeks to restrain the Respondent, whether acting personally, through Lifeline Auctioneers or through her agents, from executing the decree against her.
3. The Applicant's case is that, on 13th July 2026, the Meru Small Claims Court delivered judgment dismissing her claim, allowing the Respondent's counterclaim and ordering her to pay the Respondent Kshs. 282,000/=.
4. Following the judgment, the Respondent instructed Lifeline Auctioneers to execute the decree. The Court subsequently issued warrants of attachment on 27th August 2026, and on 1st September 2026, the Applicant's household goods were proclaimed. The Applicant was given seven days within which to settle the decretal sum of Kshs. 282,000/= together with auctioneer's charges of Kshs. 48,060/=.
5. The Applicant, being aggrieved by the said judgment, filed an appeal and the instant application. The Applicant contends that the judgment of the trial court raises arguable questions, particularly concerning the computation of the alleged loan and interest and the application of the in duplum rule. She further contends that unless execution is stayed, her household goods may be attached and sold before the appeal is heard, thereby occasioning her substantial loss and rendering the appeal nugatory.
6. The Applicant maintains that the application is brought without unreasonable delay. She also expresses her willingness to comply with such conditions as this Court may impose regarding security for the due performance of the decree.
7. The application is opposed by the Respondent, Jackline Ngugi Muthuri, through a Replying Affidavit sworn on 15th September 2026.
8. The Respondent contends that the Applicant has failed to satisfy the requirements for the grant of stay under Order 42 Rule 6(2) of the Civil Procedure Rules. In particular, the Respondent challenges the application on the grounds of delay, absence of substantial loss and failure to offer security for the due performance of the decree.
9. On delay, the Respondent points out that judgment is delivered on 13th July 2026, whereas the present application is filed on 3rd September 2026. She further observes that although the Memorandum of Appeal is filed on 11th August 2026, the application for stay is not filed until almost one month thereafter.
10. The Respondent also contends that the Applicant has engaged in an abuse of the court process. She states that on 2nd September 2026, the Applicant filed an application before the trial court seeking leave to settle the decretal amount by monthly instalments of Kshs. 10,000/=. According to the Respondent, the Applicant subsequently sought to withdraw that application after moving this Court. The Respondent characterizes that conduct as court-shuffling and forum shopping.
11. The Respondent further contends that the Applicant has not demonstrated that she will suffer substantial loss if execution proceeds. Rather, it is submitted that the Applicant continues to retain the benefit of the Respondent's money while the Respondent remains deprived of the fruits of her judgment.
12. Finally, the Respondent contends that the Applicant has failed to offer or deposit security for the due performance of the decree.
13. The parties were directed to file their submissions; the Applicant filed its submissions, but the Respondent did not file any.
14. In her written submissions dated 3rd September 2026, the Applicant submits that she satisfies the requirements for the grant of stay under Order 42 Rule 6 of the Civil Procedure Rules.
15. On substantial loss, the Applicant relies on RWW v EKW eKLR, Samvir Trustee Limited v Guardian Bank Limited and Antoine Ndiaye v African Virtual University (2015) eKLR for the proposition that the purpose of stay pending appeal is to preserve the subject matter and ensure that the appeal, if ultimately successful, is not rendered nugatory.
16. The Applicant submits that execution against her household goods, followed by their sale to third parties, would make recovery difficult and substantially undermine the efficacy of the appeal.
17. On delay, the Applicant submits that she acts promptly upon being served with the proclamation by Lifeline Auctioneers. She relies on Patel v EA Cargo Handling Services and Butt v Rent Restriction Tribunal (1982) KLR in support of the proposition that the Court has discretionary powers to prevent injustice and preserve the right of appeal.
18. On prejudice, the Applicant submits that the Respondent can adequately be protected by appropriate conditions as to security, whereas execution before the appeal is heard would expose the Applicant to prejudice that may not be capable of adequate compensation.
19. The principal issue for determination is whether the Applicant satisfies the requirements for the grant of stay of execution pending appeal.
20. The application falls for consideration under Order 42 Rule 6(2) of the Civil Procedure Rules. The provision requires an applicant seeking stay pending appeal to demonstrate that substantial loss may result unless the order for stay is made, that the application is made without unreasonable delay, and that such security as the Court may order for the due performance of the decree is given.
i. Substantial loss
21. Order 42 Rule 6(2)(a) places the burden upon the Applicant to demonstrate that substantial loss may result if stay is not granted. The requirement is substantive and is not satisfied merely by asserting that execution is imminent.
22. The importance of demonstrating substantial loss is explained by the Court of Appeal in Kenya Shell Ltd v Benjamin Karuga Kibiru & Another [1986] KLR 410, where Gachuhi JA states:
"Substantial loss in its various forms, is the cornerstone of both jurisdictions for granting a stay. That is what has to be prevented. Therefore, without this evidence it is difficult to see why the respondents should be kept out of their money."
23. In the present matter, Warrants were issued on 27th August 2026, and the Applicant's household goods were proclaimed on 1st September 2026. In the circumstances of this case, I find and hold that the execution process has reached a stage at which the Applicant's household goods are exposed to attachment and sale. This Court is satisfied that the Applicant faces a sufficient risk of substantial loss to warrant preserving the subject matter pending determination of the appeal.
24. Further, the Applicant also identifies arguable issues concerning the computation of the alleged loan and interest and the application of the in duplum rule. I find that the existence of an arguable appeal does not, by itself, establish substantial loss. It is, however, relevant when the Court considers whether execution should proceed in circumstances that may undermine the practical efficacy of the pending appeal.
ii. Whether the Application is Made Without Unreasonable Delay
25. The second requirement under Order 42 Rule 6(2)(b) is that the application is made without unreasonable delay. The trial court delivered its judgment on 13th July 2026 and granted a temporary stay of execution for thirty days. The Applicant thereafter filed the Memorandum of Appeal on 11th August 2026. Warrants of attachment were issued on 27th August 2026, while the proclamation was served on 1st September 2026. The present application is filed on 3rd September 2026.
26. Although the application is filed nearly two months after delivery of the judgment, the relevant consideration under Order 42 Rule 6(2)(b) is whether there is unreasonable delay in seeking stay in the circumstances of the case. The application is filed only two days after the Applicant's household goods were proclaimed.
27. I am not persuaded that the delay is unreasonable. I find that the Applicant moved this Court promptly once the execution process became imminent. The applicant therefore satisfied the requirement under Order 42 Rule 6(2)(b).
iii. Security for the Due Performance of the Decree
28. The third requirement under Order 42 Rule 6(2)(c) concerns security for the due performance of the decree. The requirement serves to balance the Applicant's right to pursue the appeal with the Respondent's corresponding right to enjoy the fruits of her judgment.
29. The Applicant expressed her willingness to abide by such conditions regarding security as this Court may impose. In the circumstances, I am of the considered view that the appropriate order is to grant the stay subject to the Applicant securing the decretal amount. This will ensure that the decretal sum is preserved while allowing the appeal to proceed to determination without execution against the Applicant's household property in the meantime.
30. Having considered the totality of the material before the Court, I find and hold that the Applicant satisfies the requirements for the grant of a conditional stay of execution pending appeal.
31. Consequently, the Notice of Motion dated 3rd September 2026 is allowed on the following terms:
i. There shall be a stay of execution of the decree and warrants of attachment issued on 27th August 2026 in Meru Small Claims Court Commercial Claim No. E271 of 2026, pending the hearing and determination of Civil Appeal No. E110 of 2026.
ii. The stay granted under paragraph (i) above shall be conditional upon the Applicant depositing the decretal sum of Kshs. 282,000/= in an interest-earning joint bank account in the names of the advocates for the Applicant and the Respondent within Ten (10) days from the date of this ruling.
iii. In default of compliance with paragraph (ii) above within the stipulated period, the order of stay shall automatically lapse.
iv. The costs of the application shall abide the outcome of the appeal.
32. Orders accordingly.