1. The Appellant’s Notice of Motion dated 11th April, 2024 is expressed to be brought under Order 51 Rule 1, Order 52 and Order 22 of the Civil Procedure Rules and Section 1A, 1D, 3, 3A and 79G of the Civil Procedure Act, Cap 21 Laws of Kenya and seeks the following orders:
1. THAT this application be certified as urgent and be heard ex parte in the first instance.
2. THAT pending the hearing and determination of this application, this Honourable Court be pleased to stay the execution of the decree herein.
3. THAT pending the hearing and determination inter partes of this application, an order be issued restraining the Respondent by himself, his agent, bailiff or proxies from executing for recovery against the Appellant herein.
4. THAT pending the hearing and determination inter partes of this application, an order be issued restraining the Respondent by himself, his agent, bailiff or proxies from in any way whatsoever execute the decree herein (sic).
5. THAT the costs of this application be paid by the Plaintiff’s Advocates (sic) in any event.
2. The grounds upon which the application is premised are that the Appellant has since preferred the instant appeal against the ruling and order of the trial/lower Court that was rendered on 14th March, 2024 that dismissed the Appellant’s application dated 12th October, 2023 and that following the impugned order, the Respondent has commenced execution proceedings for the committal to civil jail of the Appellant.
3. The Appellant’s further grounds are that he has an arguable appeal and that if the orders sought in the instant application are not granted, he stands to suffer prejudice and his appeal will be rendered nugatory.
4. The application is supported by the Appellant’s affidavit sworn on 11th April, 2024, to which he has annexed the memorandum of appeal and the notice issued by the Respondent requiring the Appellant to show cause why he should not be arrested and committed to civil jail in execution of the decree issued by the trial court.
5. In his affidavit, the Appellant states that he filed an application in the trial Court dated 12th October, 2023 seeking to set aside the default judgment entered against him, but the same was dismissed by the Court on 14th March, 2024. He further deposes that he subsequently applied for certified copies of the proceedings and ruling, which had not yet been supplied by the time of filing the application that is the subject of the instant ruling.
6. The Appellant avers that he has since lodged the present appeal against the order dismissing his application. He adds that the Respondent has initiated execution proceedings, including applying for a warrant of his arrest and committal to civil jail in enforcement of the decree issued by the trial court.
7. The Appellant contends that his appeal raises serious and triable issues with high chances of success and that unless an order for stay of execution is granted, the appeal will be rendered nugatory.
8. The application is opposed and to that end the Respondent filed a replying affidavit that he swore on 11th May, 2024. In his affidavit, the Respondent states that he instituted the suit in the trial Court against the Appellant for recovery of a debt, but the Appellant neither entered appearance nor filed a defence despite being duly served with summons and the plaint. Consequently, the court entered judgment in default against the Appellant on 21st December, 2020 and subsequently issued a decree on 27th May, 2021 for the decretal sum together with costs.
9. The Respondent further avers that although the Appellant later filed an application dated 12th October, 2021 seeking stay of execution, the same was neither certified as urgent nor prosecuted for over two years. The Respondent deposes that he thereafter initiated execution proceedings, leading to the issuance of a notice to show cause dated 16th November, 2023 as to why the Appellant should not be committed to civil jail.
10. The Respondent deposes further that in response to the notice to show cause, the Appellant filed another application under certificate of urgency in respect of which the trial court subsequently directed parties to file responses and submissions, and upon considering the same, delivered a ruling on 14th March, 2024 dismissing the Appellant’s application for lack of merit and allowing execution to proceed.
11. The Respondent contends that the present application is frivolous, lacks merit and constitutes an abuse of the court process. He states, on the advice of his Counsel, that the Appellant has failed to satisfy the requirements for grant of stay of execution under the Civil Procedure Rules, particularly by not demonstrating any substantial loss, failing to offer security for due performance of the decree and not establishing that the appeal is arguable or would be rendered nugatory. He further asserts that the Appellant has admitted the debt and merely seeks to delay settlement.
12. The Respondent adds that he is a person of means capable of refunding the decretal sum in the event the appeal succeeds and that he has suffered loss and inconvenience due to the Appellant’s failure to repay the loan. He emphasizes the need for finality in litigation and urges that a successful litigant should not be denied the fruits of his judgement without just cause. Accordingly, he prays that the Appellant’s application be dismissed with costs.
13. The appeal proceeded by way of brief oral submissions. The Appellant relied entirely on the affidavit in support of the application while the Respondent’s oral submissions mirrored the contents of the replying affidavit.
14. Having considered the Appellant’s notice of motion, the affidavits in support and in opposition thereto, together with the rival submissions by the parties, the Court is of the view that the issues that arise for determination are as follows:
a. Whether there are any orders capable of being issued by the Court in the circumstances of the Appellant’s application, having regard to the nature of the relief sought and the requirements under the Civil Procedure Rules and the Civil Procedure Act.
b. Whether the Appellant has satisfied the conditions for the grant of a stay of execution pending appeal.
c. Who should bear the costs of the application.
15. I will proceed to address the three issues seriatim.
16. On the first issue, which is whether there are any orders capable of being issued by the Court, it is a settled principle that a court can only grant relief that has been properly pleaded or sought in the application.
17. In Gandy v Caspar Air Charters Limited [1950] EACA 139, the former East African Court of Appeal explained the purpose of pleadings as follows:
“The object of pleadings is, of course, to secure that both parties shall know what are the points in issue between them; so that each may have full information of the case he has to meet and prepare his evidence... As a rule, relief not founded on the pleadings will not be given.”
18. The Court of Appeal in Mohamed v Sheikh [2024] KECA 1211 (KLR) reiterated that a court would be “out of order” to make an order on a claim or defence that was not made by the parties.
19. Likewise, in the authority of Daniel Otieno Migore v South Nyanza Sugar Co. Ltd [2018] KEHC 5465 (KLR) the Court observed that parties are bound by their pleadings and that pleadings form the very bedrock of the issues before the court.
20. In the present application, although the Appellant seeks broad relief allegedly to restrain execution, there is no clearly pleaded specific order for stay of execution pending appeal. The application instead generically refers to staying execution and restraint against the Respondent and his agents, without articulating the precise statutory or procedural framework for such relief. The Court cannot grant substantive orders that are not clearly claimed in the Appellant’s motion, for to do so would contradict the very purpose of pleadings, which is to notify the opposite party of the relief claimed and the case they must meet.
21. Consequently, as there is no properly pleaded substantive order capable of being granted, the Court is precluded from granting an order on an unpleaded relief.
22. Notwithstanding my findings above on the first issue, assuming that the order for stay of execution pending appeal had been properly sought in the Appellant’s motion, the next question is whether the Appellant has satisfied the conditions for the grant of such an order.
23. Under Order 42 Rule 6 of the Civil Procedure Rules, stay of execution is a discretionary relief that will only be granted where the Applicant demonstrates: (a) that execution of the decree would cause substantial loss or irreparable prejudice; (b) that the application is made without unreasonable delay; and (c) that the Applicant is willing to furnish security for the due performance of the decree in the event the appeal fails.
24. In Ali v Nyang’ao [2025] KEHC 8735 (KLR), the Court held that an Applicant seeking a stay must satisfy all three conditions, emphasizing that “substantial loss” entails more than inconvenience or delay and that it requires showing that the appeal would be rendered nugatory if execution proceeds.
25. Similarly, in the case of Chege v Gachora [2024] KEHC 1994 (KLR), the Court refused to grant a stay of execution order where the Applicant failed to demonstrate substantial loss, delayed in filing the application and did not offer security.
26. In the present matter, the Appellant has not satisfied these conditions. First, the affidavit and motion merely assert that execution may render the appeal nugatory, but there is no evidence of substantial or irreparable loss, as the decree is a money judgment and it remains uncontroverted that the Respondent is a person of means capable of refunding any sum if the appeal succeeds.
27. Second, the Appellant has not undertaken to furnish security for the decree, a clear requirement under Order 42 Rule 6 of the Civil Procedure Rules.
28. Accordingly, the Appellant has failed to meet the threshold for the grant of a stay of execution order pending appeal and the application cannot succeed on this basis.
29. The irresistible result that I then reach is that the Appellant’s failure to properly plead the order or relief, together with his failure to meet the requirements for a stay of execution pending appeal, renders the application to be one without merit. I therefore proceed to dismiss it.
30. The third issue for determination is who should bear the costs of this application. The general rule is that costs follow the event, meaning that the unsuccessful party is ordinarily liable to pay the costs of the successful party. This principle is codified under Section 27 of the Civil Procedure Act.
31. In the present case, the Appellant’s application has been found to be without merit. Consequently, the Respondent has been the successful party in opposing the application.
32. Considering the principle in Section 27 of the Civil Procedure Act and the circumstances of this case, it is just and appropriate that the Appellant bears the costs of this application.
33. This file will be mentioned before the Deputy Registrar, Milimani High Court, Civil Appellate Division on 5th May, 2026 for further directions on the appeal.
34. Orders accordingly.
DELIVERED (virtually) DATED & SIGNED this 31st day of March, 2026.
JOE M. OMIDO
JUDGE
FOR THE APPELLANT: Mr. Muriithi for Mr. King’ori.
FOR THE RESPONDENT: No appearance.
COURT ASSISTANT: Mr. Ngoge & Mr. Juma.
1. THAT this application be certified as urgent and be heard ex parte in the first instance.
2. THAT pending the hearing and determination of this application, this Honourable Court be pleased to stay the execution of the decree herein.
3. THAT pending the hearing and determination inter partes of this application, an order be issued restraining the Respondent by himself, his agent, bailiff or proxies from executing for recovery against the Appellant herein.
4. THAT pending the hearing and determination inter partes of this application, an order be issued restraining the Respondent by himself, his agent, bailiff or proxies from in any way whatsoever execute the decree herein (sic).
5. THAT the costs of this application be paid by the Plaintiff’s Advocates (sic) in any event.
2. The grounds upon which the application is premised are that the Appellant has since preferred the instant appeal against the ruling and order of the trial/lower Court that was rendered on 14th March, 2024 that dismissed the Appellant’s application dated 12th October, 2023 and that following the impugned order, the Respondent has commenced execution proceedings for the committal to civil jail of the Appellant.
3. The Appellant’s further grounds are that he has an arguable appeal and that if the orders sought in the instant application are not granted, he stands to suffer prejudice and his appeal will be rendered nugatory.
4. The application is supported by the Appellant’s affidavit sworn on 11th April, 2024, to which he has annexed the memorandum of appeal and the notice issued by the Respondent requiring the Appellant to show cause why he should not be arrested and committed to civil jail in execution of the decree issued by the trial court.
5. In his affidavit, the Appellant states that he filed an application in the trial Court dated 12th October, 2023 seeking to set aside the default judgment entered against him, but the same was dismissed by the Court on 14th March, 2024. He further deposes that he subsequently applied for certified copies of the proceedings and ruling, which had not yet been supplied by the time of filing the application that is the subject of the instant ruling.
6. The Appellant avers that he has since lodged the present appeal against the order dismissing his application. He adds that the Respondent has initiated execution proceedings, including applying for a warrant of his arrest and committal to civil jail in enforcement of the decree issued by the trial court.
7. The Appellant contends that his appeal raises serious and triable issues with high chances of success and that unless an order for stay of execution is granted, the appeal will be rendered nugatory.
8. The application is opposed and to that end the Respondent filed a replying affidavit that he swore on 11th May, 2024. In his affidavit, the Respondent states that he instituted the suit in the trial Court against the Appellant for recovery of a debt, but the Appellant neither entered appearance nor filed a defence despite being duly served with summons and the plaint. Consequently, the court entered judgment in default against the Appellant on 21st December, 2020 and subsequently issued a decree on 27th May, 2021 for the decretal sum together with costs.
9. The Respondent further avers that although the Appellant later filed an application dated 12th October, 2021 seeking stay of execution, the same was neither certified as urgent nor prosecuted for over two years. The Respondent deposes that he thereafter initiated execution proceedings, leading to the issuance of a notice to show cause dated 16th November, 2023 as to why the Appellant should not be committed to civil jail.
10. The Respondent deposes further that in response to the notice to show cause, the Appellant filed another application under certificate of urgency in respect of which the trial court subsequently directed parties to file responses and submissions, and upon considering the same, delivered a ruling on 14th March, 2024 dismissing the Appellant’s application for lack of merit and allowing execution to proceed.
11. The Respondent contends that the present application is frivolous, lacks merit and constitutes an abuse of the court process. He states, on the advice of his Counsel, that the Appellant has failed to satisfy the requirements for grant of stay of execution under the Civil Procedure Rules, particularly by not demonstrating any substantial loss, failing to offer security for due performance of the decree and not establishing that the appeal is arguable or would be rendered nugatory. He further asserts that the Appellant has admitted the debt and merely seeks to delay settlement.
12. The Respondent adds that he is a person of means capable of refunding the decretal sum in the event the appeal succeeds and that he has suffered loss and inconvenience due to the Appellant’s failure to repay the loan. He emphasizes the need for finality in litigation and urges that a successful litigant should not be denied the fruits of his judgement without just cause. Accordingly, he prays that the Appellant’s application be dismissed with costs.
13. The appeal proceeded by way of brief oral submissions. The Appellant relied entirely on the affidavit in support of the application while the Respondent’s oral submissions mirrored the contents of the replying affidavit.
14. Having considered the Appellant’s notice of motion, the affidavits in support and in opposition thereto, together with the rival submissions by the parties, the Court is of the view that the issues that arise for determination are as follows:
a. Whether there are any orders capable of being issued by the Court in the circumstances of the Appellant’s application, having regard to the nature of the relief sought and the requirements under the Civil Procedure Rules and the Civil Procedure Act.
b. Whether the Appellant has satisfied the conditions for the grant of a stay of execution pending appeal.
c. Who should bear the costs of the application.
15. I will proceed to address the three issues seriatim.
16. On the first issue, which is whether there are any orders capable of being issued by the Court, it is a settled principle that a court can only grant relief that has been properly pleaded or sought in the application.
17. In Gandy v Caspar Air Charters Limited [1950] EACA 139, the former East African Court of Appeal explained the purpose of pleadings as follows:
“The object of pleadings is, of course, to secure that both parties shall know what are the points in issue between them; so that each may have full information of the case he has to meet and prepare his evidence... As a rule, relief not founded on the pleadings will not be given.”
18. The Court of Appeal in Mohamed v Sheikh [2024] KECA 1211 (KLR) reiterated that a court would be “out of order” to make an order on a claim or defence that was not made by the parties.
19. Likewise, in the authority of Daniel Otieno Migore v South Nyanza Sugar Co. Ltd [2018] KEHC 5465 (KLR) the Court observed that parties are bound by their pleadings and that pleadings form the very bedrock of the issues before the court.
20. In the present application, although the Appellant seeks broad relief allegedly to restrain execution, there is no clearly pleaded specific order for stay of execution pending appeal. The application instead generically refers to staying execution and restraint against the Respondent and his agents, without articulating the precise statutory or procedural framework for such relief. The Court cannot grant substantive orders that are not clearly claimed in the Appellant’s motion, for to do so would contradict the very purpose of pleadings, which is to notify the opposite party of the relief claimed and the case they must meet.
21. Consequently, as there is no properly pleaded substantive order capable of being granted, the Court is precluded from granting an order on an unpleaded relief.
22. Notwithstanding my findings above on the first issue, assuming that the order for stay of execution pending appeal had been properly sought in the Appellant’s motion, the next question is whether the Appellant has satisfied the conditions for the grant of such an order.
23. Under Order 42 Rule 6 of the Civil Procedure Rules, stay of execution is a discretionary relief that will only be granted where the Applicant demonstrates: (a) that execution of the decree would cause substantial loss or irreparable prejudice; (b) that the application is made without unreasonable delay; and (c) that the Applicant is willing to furnish security for the due performance of the decree in the event the appeal fails.
24. In Ali v Nyang’ao [2025] KEHC 8735 (KLR), the Court held that an Applicant seeking a stay must satisfy all three conditions, emphasizing that “substantial loss” entails more than inconvenience or delay and that it requires showing that the appeal would be rendered nugatory if execution proceeds.
25. Similarly, in the case of Chege v Gachora [2024] KEHC 1994 (KLR), the Court refused to grant a stay of execution order where the Applicant failed to demonstrate substantial loss, delayed in filing the application and did not offer security.
26. In the present matter, the Appellant has not satisfied these conditions. First, the affidavit and motion merely assert that execution may render the appeal nugatory, but there is no evidence of substantial or irreparable loss, as the decree is a money judgment and it remains uncontroverted that the Respondent is a person of means capable of refunding any sum if the appeal succeeds.
27. Second, the Appellant has not undertaken to furnish security for the decree, a clear requirement under Order 42 Rule 6 of the Civil Procedure Rules.
28. Accordingly, the Appellant has failed to meet the threshold for the grant of a stay of execution order pending appeal and the application cannot succeed on this basis.
29. The irresistible result that I then reach is that the Appellant’s failure to properly plead the order or relief, together with his failure to meet the requirements for a stay of execution pending appeal, renders the application to be one without merit. I therefore proceed to dismiss it.
30. The third issue for determination is who should bear the costs of this application. The general rule is that costs follow the event, meaning that the unsuccessful party is ordinarily liable to pay the costs of the successful party. This principle is codified under Section 27 of the Civil Procedure Act.
31. In the present case, the Appellant’s application has been found to be without merit. Consequently, the Respondent has been the successful party in opposing the application.
32. Considering the principle in Section 27 of the Civil Procedure Act and the circumstances of this case, it is just and appropriate that the Appellant bears the costs of this application.
33. This file will be mentioned before the Deputy Registrar, Milimani High Court, Civil Appellate Division on 5th May, 2026 for further directions on the appeal.
34. Orders accordingly.
DELIVERED (virtually) DATED & SIGNED this 31st day of March, 2026.
JOE M. OMIDO
JUDGE
FOR THE APPELLANT: Mr. Muriithi for Mr. King’ori.
FOR THE RESPONDENT: No appearance.
COURT ASSISTANT: Mr. Ngoge & Mr. Juma.