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JudgmentJAMES MUTUKU MULAKO VS JENIFFER MUTIO KYALO4 min read

JAMES MUTUKU MULAKO VS JENIFFER MUTIO KYALO

High Court at Makueni High Court · · Matheka, Teresia Mumbua


  1. The application before me is dated 23/11/2022.
  2. It is brought under sections 3A, 79G and 95 of Civil Procure Act Cap 75 LOK, Order 22 Rule 22, Order 42 Rule 6, Order 50 Rule 6, Order 51 Rules 1 and 3 of the Civil Procedure Rules 2010.
  3. It seeks orders:
  4. That this application be certified urgent, service be dispensed with thereof and the same be heard ex parte in the first instance.
  5. That this Honourable court be pleased to order a stay of execution of the judgment/decree delivered on 2nd November, 2022 by Honourable M. K Mutegi – PM sitting at Tawa in CMCC 83 of 2021 pending the hearing and determination of this application.
  6. That this Honourable court be pleased to stay the execution of the judgment/decree delivered on 2nd November, 2022 by Honourable M.K  Mutegi – PM sitting at Tawa in CMCC 83 of 2021 pending the hearing and determination of the appellant’s appeal filed at the High court of Kenya at Machakos.
  7. That this Honourable court allow the applicant to furnish the court with security in the form of a Bank guarantee from a reputable bank pending the full hearing and determination of this appeal.
  8. That the application be heard inter parties on such date and time as this Honourable court may direct.
  9. That the costs of this application abide the outcome of the appeal.

The application is based on the grounds on the face of the application and the supporting affidavit of James Mutuku Mulako sworn on 23/11/2022.

  1. It is opposed by the replying affidavit of Jeniffer Mutio Kyalo sworn on 16/02/2023 mainly that the applicant is not appealing against liability, that the applicant has only brought his application to deny the respondent the fruits of her judgment entered in her favour on 29/07/2021.
  2. Counsel for each party filed written submissions which I have considered.
  3. The applicable law is Order 42 rule 6 of the CPR which provides .

(1) No appeal or second appeal shall operate as a stay of execution or proceedings under a decree or order appealed from except appeal case of 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.

(3) Notwithstanding anything contained in subrule (2), the court shall have power, without formal application made, to order upon such terms as it may deem fit a stay of execution pending the hearing of a formal application.

(4) For the purposes of this rule an appeal to the Court of Appeal shall be deemed to have been filed when under the Rules of that Court notice of appeal has been given.

(5) An application for stay of execution may be made informally immediately following the delivery of judgment or ruling.

(6) Notwithstanding anything contained in subrule (1) of this rule the High Court shall have power in the exercise of its appellate jurisdiction to grant a temporary injunction on such terms as it thinks just provided the procedure for instituting an appeal from a subordinate court or tribunal has been complied with.

  1. The issue for determination is whether application is tenable.
  2. The first thing I noted is that the applicant refers to an appeal files at Machakos. I have perused the file and note that the appeal is HCCA E060 of 2022 filed at Makueni. I presume that that was an error by the counsel drafting the application.
  3. There is no issue of unreasonable delay in filing the application.
  4. On substantial loss – it is argued that the applicant will suffer loss if the respondent is paid the whole decretal sum.
  5. On security – a bank guarantee is offered by the applicant which is rejected by the respondent.
  6. The respondent however submits that she would be amenable to the stay of execution if ¾ of the decretal sum is paid to her.
  7. I have considered the authorities cited. I have considered the provisions of order 42 rule 6 and the olive branch offered by the respondent.
  8. I have perused the memorandum of appeal and the record and to balance the right to an appeal and the right to the fruits of the respondent’s judgment – I allow the application on the following terms:
  9. There be stay of execution pending the hearing and determination of the appeal.
  10. The applicant to pay the respondent ½ of the decretal sum and to deposit the other ½ in a joint interest earning account in the name of both counsel within 30 days hereof.
  11. In default of 2 the stay will automatically lapse, the application will stand dismissed with costs to the respondent.
  12. In the other event, costs to the respondent.


    JAMES MUTUKU MULAKO VS JENIFFER MUTIO KYALO JAMES MUTUKU MULAKO VS JENIFFER MUTIO KYALO