'RULING
1. Irene Nachiro Kavu has filed before this Court an application by way of Notice of Motion dated 30th April 2025 seeking an order of stay of execution against the ruling in Kwale Magistrates Court Civil Case No. E072 of 2022 delivered on 17th April 2025 pending the hearing and determination of an appeal filed against the said ruling in which the applicant’s application to set aside judgment in default of appearance and defence and for leave to defend the suit out of time was dismissed.
2. The application is brought under sections 1A, 1B, 3 and 65 of the Civil Procedure Act (Cap. 21) Laws of Kenya Order 10 Rule 11, Order 22 Rule 22 of the Civil Procedure Rules, and all other enabling provisions of the law.
3. The grounds in support of the application as laid out on the face thereof and expounded in the supporting affidavit of Irene Nachiro Kavu sworn on 30th April 2025 are that the applicant has lodged an appeal to this court; that the appeal is arguable and with a high chance of success and that the appellant stands to suffer irreparable loss should the respondent proceed to execute the judgment of the lower court.
4. She deposes in the supporting affidavit that the process of execution is in progress and the respondent has taken out warrants of arrest in execution of the lower court’s decree. She has annexed to the supporting affidavit a copy of the decree for KShs 1,605,762/= as at 20th June 2024; notice to show cause why execution should not issue against her; and an application for execution of the decree by way of notice to show cause why she should not be arrested and committed to civil jail for failing to pay the decretal sum.
5. The applicant has also attached to the supporting affidavit the memorandum of appeal dated 24th April, 2025 and filed in court on the same day. The grounds of appeal laid out in the memorandum are that:
a. The learned magistrate erred in law and fact by finding that the appellant was served with summons to enter appearance against the evidence on record to the contrary.
b. The learned magistrate failed to critically analyse the evidence before her showing that the appellant was not served with summons to enter appearance and thereby denied the appellant the chance to reach the seat of justice.
c. The learned magistrate erred in law and fact by making a finding that the appellant that the interlocutory judgment entered against the appellant was clear proof of service.
d. The learned magistrate erred in law and fact by making a finding that the appellant was served with notice to show cause through her mobile phone number without clear proof of the ownership of the number by the appellant.
6. The applicant maintains that she has a good defence to the suit as she was never served with summons to enter appearance or the plaint in the suit and she would like to be given an opportunity to defend the suit before the lower court.
7. The application is opposed by the respondent through the replying affidavit of Emmanuel Sikukuu Matete sworn on 13th May 2025. He deposes that the applicant was duly served with the summons to enter appearance but elected not to defend the suit and the default judgment entered against her was regular. Further that the appeal before this court is omnibus, unclear and bad in law and incapable of being granted. Further that the application has been brought after inordinate delay after the application before the lower court was dismissed with costs.
8. The application was heard by way of written submissions filed by learned counsel for the parties.
9. Learned counsel for the applicant submitted, that the sum of KShs 1,605,762/= is way out of the applicant’s means to pay and should the process of execution be allowed to proceed she will suffer economic hardship and irreparable loss of unimaginable magnitude. He submits that contrary to the trial court’s finding that the applicant had appeared in court with an advocate by the name Maliambo, that was never the case. The rest of the submissions are a reiteration of the grounds in support of the application.
10. Learned counsel submits that the applicant has met all the conditions for grant of an order of stay of execution pending appeal and supported the submissions with various authorities.
11. The respondent on his part, through learned counsel on record, setting out the principles considered by the court in an application for grant of stay pending appeal under Order 42 Rule 6(2) that the same have not been satisfied by the applicant herein. The respondent submits that the warrants of arrest were issued pursuant to a lawful process of court arising out of a judgment entered against the applicant. Further, that to discharge a financial obligation arising out of a lawful process cannot be amount to substantial loss and the applicant has not demonstrated how she stands to irreparable loss. Further, that the respondent’s right to enjoy the fruits of his judgment cannot be depended on the applicant’s economic status. He cites the case of Samwel Kimutai Korir (Suing as Personal and Legal Representative Of Estate) of Chelangat Silevia v Nyanchwa Adventist Secondary School & Nyanchwa Adventist College [2017] KEHC 2780 (KLR) in support of that submission.
12. The respondent submits further that the appellant has not offered any form of security as required under Order 42 Rule 6(2).
13. The respondent submits that, should the court be minded to grant the application, the appellant should be made to pay at least half of the decretal sum to the respondent and the balance to be deposited in a joint interest earning bank account in the names of the parties’ advocates. He has cited the case of Jamii Bora Bank Limited & another v Samuel Wambugu Ndirangu [2022] KEHC 1845 (KLR) in this respect.
14. He submits that in exercising its discretion, the court should always opt for the lower rather than the higher risk of injustice as held in the case of Samvir Trustee Limited v Guardian Bank Limited [2007] KEHC 2438 (KLR).
15. I have considered the Notice of Motion application the grounds in support thereof, the supporting affidavit as well as the replying affidavit and the submissions by learned counsels together with the authorities cited. The issues for determination are whether the application has merit, what orders the court should issue and who bears the costs of the application.
16. Stay of execution pending appeal to the High Court is provided for under Order 42 Rule 6 of the Civil Procedure Rules 2010 as follows;
“(1) No appeal or second appeal shall operate as a stay of execution or proceeding 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.”
17. From the foregoing provision of the law, the three conditions to be fulfilled for an order of stay pending appeal to issue are;
a. that substantial loss may result to the applicant unless the order is granted.
b. the application has been made without unreasonable delay.
c. security as the court orders for the due performance of the decree.
18. These principles are enunciated in the case of Butt v Rent Restriction Tribunal [1979] KECA 22 (KLR) where the Court of Appeal stated what ought to be considered in determining whether to grant or refuse stay of execution pending appeal. The court said that: -
a. The power of the court to grant or refuse an application for a stay of execution is discretionary; and the discretion should be exercised in such a way as not to prevent an appeal.
b. Secondly, the general principle in granting or refusing a stay is, if there is no other overwhelming hindrance, a stay must be granted so that an appeal may not be rendered nugatory should the appeal court reverse the judge’s discretion.
c. Thirdly, a judge should not refuse a stay if there are good grounds for granting it merely because, in his opinion, a better remedy may become available to the applicant at the end of the proceedings.
d. Finally, the Court in exercising its discretion whether to grant or refuse an application for stay will consider the special circumstances and its unique requirements. The court in exercising its powers under Order XLI Rule 4(2) (b) of the Civil Procedure Rules, can order security upon application by either party or on its own motion. Failure to put security as ordered will cause the order for stay of execution to lapse.
19. The High Court’s jurisdiction to grant a stay of execution pending appeal under Order 42 rule 6 of the Civil Procedure Rules is circumscribed by the three conditions of, being satisfied that the application has been made without unreasonable delay, satisfaction that substantial loss may occur if the order is not granted and the furnishing of security for the due performance of the court’s orders. (See the case of Halai & another v Thornton & Turpin (1963) Ltd [1990] KECA 65 (KLR)).
20. It has also been held that the court, in exercising its discretion, should also opt for the lower rather than the higher risk of injustice and finally the court will also consider the overriding objective as stipulated in sections 1A and 1B of the Civil Procedure Act, which the courts are now enjoined to give effect to. (See Machira t/a Machira & Co Advocates v East African Standard [2002] KEHC 1167 (KLR)).
21. The appellant submits that her appeal is arguable. However, that is not one of the conditions for grant of stay pending appeal to the High Court.
22. On the requirement that the application has been made without unreasonable delay, the ruling the subject of the appeal was delivered on 17th April 2025 and the memorandum of appeal was filed on 24th April 2025. That was within the statutory period provided for filing an appeal to the High Court. The present application was filed on 30th April 2025, just about two weeks after the ruling was rendered and some few days after the memorandum of appeal was filed. I am satisfied that the application was filed within a reasonable time and therefore that condition is satisfied.
23. On the requirement to demonstrate substantial loss, the applicant deposes that she stands to suffer prejudice if execution is levied. Execution in this case has been applied for to be by way of arrest and committal to civil jail. Arrest of an individual and committal to civil jail no doubt takes away an individual’s liberty and causes great inconvenience even as it is a recognized form of execution of a money decree. Since there is no precise definition of what amounts to substantial loss, I find that such an arrest, when the applicant is keen on exercising her right of appeal would amount to substantial loss on her part. I am satisfied that the second condition has also been satisfied.
24. I am aware that the respondent has a decree in his favour and he is entitled to enjoy the fruits thereof. But the applicant also has her right to appeal. The court has to balance the interests of the applicant who is seeking to preserve the status quo pending the hearing of the appeal so that his appeal is not rendered nugatory and the interest of the respondent who is seeking to enjoy the fruits of his judgment. Balancing the two competing interests in this case, I find that the loss that would be suffered by the applicant would be substantial if the stay order is not granted.
25. However, this issue is evened out on the next requirement to be satisfied for stay of execution to issue that is, “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.”
26. It is true as submitted by learned counsel for the respondent that the applicant has not offered to provide any security. However, the form of security to be provided is at the discretion of the court. In that case, whether or not the applicant has offered one, what is important is the satisfaction of that condition. The court will in its discretion set and require an appropriate security from the applicant, failure to which her application fails.
27. Consequently, I find that the application herein has merit and in order not to render the intended appeal nugatory, the application is granted on conditions. The application is allowed and stay of execution pending appeal is granted on the terms that stay of execution of the decree of the lower court in Magistrates Court Civil Case No. E072 of 2022 dated 24th June 2024 is granted pending hearing and determination of the intended appeal herein on condition that the applicant deposits in an interest earning account in the joint names of both advocates for the parties within the next 30 days from the date hereof KShs 350,000/= or in the alternative to provide a suitable bank or Sacco guarantee of this sum.
28. Failure by the applicant to abide by the condition hereinabove, this application will be deemed to have been dismissed and the respondent will be at liberty to execute.
29. The record of appeal shall be filed within 45 days from today.
30. Costs of the application will abide by the appeal.
31. Orders accordingly.
Delivered, dated and signed at Kwale on the Virtual Platform, Teams this 8th day of October 2025.
ANDAYI W. F.
JUDGE
In the presence of:
Okanga for the applicant.
Kazungu for the respondent.
Ummu: Court Assistant.
'
1. Irene Nachiro Kavu has filed before this Court an application by way of Notice of Motion dated 30th April 2025 seeking an order of stay of execution against the ruling in Kwale Magistrates Court Civil Case No. E072 of 2022 delivered on 17th April 2025 pending the hearing and determination of an appeal filed against the said ruling in which the applicant’s application to set aside judgment in default of appearance and defence and for leave to defend the suit out of time was dismissed.
2. The application is brought under sections 1A, 1B, 3 and 65 of the Civil Procedure Act (Cap. 21) Laws of Kenya Order 10 Rule 11, Order 22 Rule 22 of the Civil Procedure Rules, and all other enabling provisions of the law.
3. The grounds in support of the application as laid out on the face thereof and expounded in the supporting affidavit of Irene Nachiro Kavu sworn on 30th April 2025 are that the applicant has lodged an appeal to this court; that the appeal is arguable and with a high chance of success and that the appellant stands to suffer irreparable loss should the respondent proceed to execute the judgment of the lower court.
4. She deposes in the supporting affidavit that the process of execution is in progress and the respondent has taken out warrants of arrest in execution of the lower court’s decree. She has annexed to the supporting affidavit a copy of the decree for KShs 1,605,762/= as at 20th June 2024; notice to show cause why execution should not issue against her; and an application for execution of the decree by way of notice to show cause why she should not be arrested and committed to civil jail for failing to pay the decretal sum.
5. The applicant has also attached to the supporting affidavit the memorandum of appeal dated 24th April, 2025 and filed in court on the same day. The grounds of appeal laid out in the memorandum are that:
a. The learned magistrate erred in law and fact by finding that the appellant was served with summons to enter appearance against the evidence on record to the contrary.
b. The learned magistrate failed to critically analyse the evidence before her showing that the appellant was not served with summons to enter appearance and thereby denied the appellant the chance to reach the seat of justice.
c. The learned magistrate erred in law and fact by making a finding that the appellant that the interlocutory judgment entered against the appellant was clear proof of service.
d. The learned magistrate erred in law and fact by making a finding that the appellant was served with notice to show cause through her mobile phone number without clear proof of the ownership of the number by the appellant.
6. The applicant maintains that she has a good defence to the suit as she was never served with summons to enter appearance or the plaint in the suit and she would like to be given an opportunity to defend the suit before the lower court.
7. The application is opposed by the respondent through the replying affidavit of Emmanuel Sikukuu Matete sworn on 13th May 2025. He deposes that the applicant was duly served with the summons to enter appearance but elected not to defend the suit and the default judgment entered against her was regular. Further that the appeal before this court is omnibus, unclear and bad in law and incapable of being granted. Further that the application has been brought after inordinate delay after the application before the lower court was dismissed with costs.
8. The application was heard by way of written submissions filed by learned counsel for the parties.
9. Learned counsel for the applicant submitted, that the sum of KShs 1,605,762/= is way out of the applicant’s means to pay and should the process of execution be allowed to proceed she will suffer economic hardship and irreparable loss of unimaginable magnitude. He submits that contrary to the trial court’s finding that the applicant had appeared in court with an advocate by the name Maliambo, that was never the case. The rest of the submissions are a reiteration of the grounds in support of the application.
10. Learned counsel submits that the applicant has met all the conditions for grant of an order of stay of execution pending appeal and supported the submissions with various authorities.
11. The respondent on his part, through learned counsel on record, setting out the principles considered by the court in an application for grant of stay pending appeal under Order 42 Rule 6(2) that the same have not been satisfied by the applicant herein. The respondent submits that the warrants of arrest were issued pursuant to a lawful process of court arising out of a judgment entered against the applicant. Further, that to discharge a financial obligation arising out of a lawful process cannot be amount to substantial loss and the applicant has not demonstrated how she stands to irreparable loss. Further, that the respondent’s right to enjoy the fruits of his judgment cannot be depended on the applicant’s economic status. He cites the case of Samwel Kimutai Korir (Suing as Personal and Legal Representative Of Estate) of Chelangat Silevia v Nyanchwa Adventist Secondary School & Nyanchwa Adventist College [2017] KEHC 2780 (KLR) in support of that submission.
12. The respondent submits further that the appellant has not offered any form of security as required under Order 42 Rule 6(2).
13. The respondent submits that, should the court be minded to grant the application, the appellant should be made to pay at least half of the decretal sum to the respondent and the balance to be deposited in a joint interest earning bank account in the names of the parties’ advocates. He has cited the case of Jamii Bora Bank Limited & another v Samuel Wambugu Ndirangu [2022] KEHC 1845 (KLR) in this respect.
14. He submits that in exercising its discretion, the court should always opt for the lower rather than the higher risk of injustice as held in the case of Samvir Trustee Limited v Guardian Bank Limited [2007] KEHC 2438 (KLR).
15. I have considered the Notice of Motion application the grounds in support thereof, the supporting affidavit as well as the replying affidavit and the submissions by learned counsels together with the authorities cited. The issues for determination are whether the application has merit, what orders the court should issue and who bears the costs of the application.
16. Stay of execution pending appeal to the High Court is provided for under Order 42 Rule 6 of the Civil Procedure Rules 2010 as follows;
“(1) No appeal or second appeal shall operate as a stay of execution or proceeding 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.”
17. From the foregoing provision of the law, the three conditions to be fulfilled for an order of stay pending appeal to issue are;
a. that substantial loss may result to the applicant unless the order is granted.
b. the application has been made without unreasonable delay.
c. security as the court orders for the due performance of the decree.
18. These principles are enunciated in the case of Butt v Rent Restriction Tribunal [1979] KECA 22 (KLR) where the Court of Appeal stated what ought to be considered in determining whether to grant or refuse stay of execution pending appeal. The court said that: -
a. The power of the court to grant or refuse an application for a stay of execution is discretionary; and the discretion should be exercised in such a way as not to prevent an appeal.
b. Secondly, the general principle in granting or refusing a stay is, if there is no other overwhelming hindrance, a stay must be granted so that an appeal may not be rendered nugatory should the appeal court reverse the judge’s discretion.
c. Thirdly, a judge should not refuse a stay if there are good grounds for granting it merely because, in his opinion, a better remedy may become available to the applicant at the end of the proceedings.
d. Finally, the Court in exercising its discretion whether to grant or refuse an application for stay will consider the special circumstances and its unique requirements. The court in exercising its powers under Order XLI Rule 4(2) (b) of the Civil Procedure Rules, can order security upon application by either party or on its own motion. Failure to put security as ordered will cause the order for stay of execution to lapse.
19. The High Court’s jurisdiction to grant a stay of execution pending appeal under Order 42 rule 6 of the Civil Procedure Rules is circumscribed by the three conditions of, being satisfied that the application has been made without unreasonable delay, satisfaction that substantial loss may occur if the order is not granted and the furnishing of security for the due performance of the court’s orders. (See the case of Halai & another v Thornton & Turpin (1963) Ltd [1990] KECA 65 (KLR)).
20. It has also been held that the court, in exercising its discretion, should also opt for the lower rather than the higher risk of injustice and finally the court will also consider the overriding objective as stipulated in sections 1A and 1B of the Civil Procedure Act, which the courts are now enjoined to give effect to. (See Machira t/a Machira & Co Advocates v East African Standard [2002] KEHC 1167 (KLR)).
21. The appellant submits that her appeal is arguable. However, that is not one of the conditions for grant of stay pending appeal to the High Court.
22. On the requirement that the application has been made without unreasonable delay, the ruling the subject of the appeal was delivered on 17th April 2025 and the memorandum of appeal was filed on 24th April 2025. That was within the statutory period provided for filing an appeal to the High Court. The present application was filed on 30th April 2025, just about two weeks after the ruling was rendered and some few days after the memorandum of appeal was filed. I am satisfied that the application was filed within a reasonable time and therefore that condition is satisfied.
23. On the requirement to demonstrate substantial loss, the applicant deposes that she stands to suffer prejudice if execution is levied. Execution in this case has been applied for to be by way of arrest and committal to civil jail. Arrest of an individual and committal to civil jail no doubt takes away an individual’s liberty and causes great inconvenience even as it is a recognized form of execution of a money decree. Since there is no precise definition of what amounts to substantial loss, I find that such an arrest, when the applicant is keen on exercising her right of appeal would amount to substantial loss on her part. I am satisfied that the second condition has also been satisfied.
24. I am aware that the respondent has a decree in his favour and he is entitled to enjoy the fruits thereof. But the applicant also has her right to appeal. The court has to balance the interests of the applicant who is seeking to preserve the status quo pending the hearing of the appeal so that his appeal is not rendered nugatory and the interest of the respondent who is seeking to enjoy the fruits of his judgment. Balancing the two competing interests in this case, I find that the loss that would be suffered by the applicant would be substantial if the stay order is not granted.
25. However, this issue is evened out on the next requirement to be satisfied for stay of execution to issue that is, “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.”
26. It is true as submitted by learned counsel for the respondent that the applicant has not offered to provide any security. However, the form of security to be provided is at the discretion of the court. In that case, whether or not the applicant has offered one, what is important is the satisfaction of that condition. The court will in its discretion set and require an appropriate security from the applicant, failure to which her application fails.
27. Consequently, I find that the application herein has merit and in order not to render the intended appeal nugatory, the application is granted on conditions. The application is allowed and stay of execution pending appeal is granted on the terms that stay of execution of the decree of the lower court in Magistrates Court Civil Case No. E072 of 2022 dated 24th June 2024 is granted pending hearing and determination of the intended appeal herein on condition that the applicant deposits in an interest earning account in the joint names of both advocates for the parties within the next 30 days from the date hereof KShs 350,000/= or in the alternative to provide a suitable bank or Sacco guarantee of this sum.
28. Failure by the applicant to abide by the condition hereinabove, this application will be deemed to have been dismissed and the respondent will be at liberty to execute.
29. The record of appeal shall be filed within 45 days from today.
30. Costs of the application will abide by the appeal.
31. Orders accordingly.
Delivered, dated and signed at Kwale on the Virtual Platform, Teams this 8th day of October 2025.
ANDAYI W. F.
JUDGE
In the presence of:
Okanga for the applicant.
Kazungu for the respondent.
Ummu: Court Assistant.
'