1. On 20th January 2026, this Court delivered its judgment in favour of the Plaintiff, and found that the Defendant had passed off her school as that of the Plaintiff and granted the reliefs sought in the plaint, including general damages of Kshs. 2,500,000 together with costs, while dismissing the Defendant's counterclaim.
2. Aggrieved by that decision, the Defendant lodged a Notice of Appeal, and thereafter filed the present Notice of Motion dated 3rd February 2026 seeking, principally, an order of stay of execution pending the hearing and determination of the intended appeal.
3. The application is expressed to be brought under Order 42 Rule 6 of the Civil Procedure Rules and is supported by the affidavit of Rosemary Wambugu, in which the Applicant contends that the intended appeal is arguable, that execution would occasion substantial loss by disrupting the operations of the school through attachment of its assets, and that the Applicant is willing to furnish security for the due performance of the decree.
4. Before that application could be heard, the Respondent commenced execution. The Applicant consequently filed a second Notice of Motion dated 4th March 2026 by its Advocate, Charles Njenga, seeking review of the Court's directions issued on 5th February 2026 and an interim stay of execution pending the hearing of the application dated 3rd February 2026. The Applicant contends that the commencement of execution before the stay application is heard would render that application nugatory.
5. The Respondent opposed both applications through the Replying Affidavits of Salome Beacco, contending that the Applicant has not satisfied the requirements either for review under Order 45 or for stay under Order 42 Rule 6.
6. The applications were canvassed by way of written submissions. The Applicant filed two sets of submissions, one dated 1st April 2026 in support of the application for review, and the other dated 20th May 2026, in support of the application for stay pending appeal.
7. The Respondent/Decree Holder, on the other hand, filed submissions dated 26th May 2026 in opposing the application for stay. No submissions were made in respect of the application for review. According to the Respondent, the Application dated 4th March 2026 for review was spent.
Analysis and Determination
8. I have carefully considered the pleadings in respect of the two applications and the submissions on record. I note that the applications raise the following two issues for determination:
i. Whether the Applicant has established grounds for review of the Court's directions issued on 5th February 2026.
ii. Whether the Applicant has satisfied the conditions for stay of execution pending appeal under Order 42 Rule 6 of the Civil Procedure Rules.
Whether the Applicant has established grounds for review
9. The jurisdiction of this Court to review its own orders is conferred by section 80 of the Civil Procedure Act and Order 45 Rule 1 of the Civil Procedure Rules.
10. A review may only be granted where there is discovery of new and important matter which, despite due diligence, was not within the applicant's knowledge; where there is an error apparent on the face of the record; or for any other sufficient reason.
11. The principles governing review are well settled. In National Bank of Kenya Ltd v Ndungu Njau [1997] eKLR, the Court of Appeal held that review is not available merely because a party considers the decision erroneous or because subsequent events have altered the circumstances. The jurisdiction is confined to correcting manifest errors or addressing the specific grounds prescribed by the Rules.
12. In the present case, the Applicant does not contend that there exists any error apparent on the face of the record. Nor has any new and important matter been discovered. The complaint is that after the Court directed parties to file responses and submissions on the stay application, the Respondent commenced execution before that application could be heard.
13. While the Court appreciates the Applicant's concern, commencement of execution pursuant to a valid decree does not render the procedural directions previously issued erroneous or reviewable. Those directions merely regulated the hearing of the stay application. The subsequent commencement of execution is not a ground for review within the meaning of Order 45 Rule 1.
14. In the premises, I therefore find that the Applicant has failed to establish any of the statutory grounds for review. The Notice of Motion dated 4th March 2026 is accordingly found to be without merit, and is hereby dismissed.
Whether the Applicant meets the threshold for a stay of execution under Order 42 Rule 6 of the Civil Procedure Rules
15. This is the substantive application.
16. Under Order 42 Rule 6(2), an applicant must demonstrate that the application has been brought without unreasonable delay, that substantial loss may result unless stay is granted, and that security has been offered for the due performance of the decree.
17. Regarding delay, the Court notes from the record that judgment in the present case was delivered on 20th January 2026. The Applicant lodged a Notice of Appeal on 26th January 2026 and filed the present application on 3rd February 2026. I am therefore satisfied that there was no unreasonable delay.
18. On the question of substantial loss, the guiding principle is as was expressed by the Court of Appeal in Kenya Shell Ltd v Benjamin Karuga Kibiru & Another [1986] KLR 410, that substantial loss is the cornerstone of the jurisdiction to grant stay. Similarly, in Butt v Rent Restriction Tribunal [1982] KLR 417, the Court held that the discretion to grant stay should be exercised so as not to render an appeal nugatory while balancing the successful litigant's right to enjoy the fruits of the judgment.
19. In opposition to the application, the Respondent in this case submitted that the decree is essentially a money decree and that no substantial loss has been demonstrated.
20. The Court agrees with the Decree Holder’s submissions that the execution of a money decree does not, without more, constitute substantial loss.
21. However, each case must be determined on its own facts.
22. In the present matter, the Applicant has demonstrated that execution has targeted assets integral to the running of the school, including school buses and operational equipment used in providing educational services. The Applicant contends that attachment of those assets would disrupt learning and the day-to-day operations of the institution pending the intended appeal.
23. Those circumstances distinguish this matter from the ordinary commercial money decree. The disruption of an ongoing educational institution and the attendant prejudice to pupils and school operations cannot readily be compensated by an award of damages should the intended appeal ultimately succeed.
24. Finally, on the security for due performance, the Court notes that the Applicant expressed willingness to furnish an irrevocable bank guarantee securing the decretal amount. The Court agrees with the Judgment Debtor’s submissions that security would sufficiently safeguard the Respondent's entitlement to the fruits of the judgment while preserving the Applicant's right to pursue the intended appeal.
25. Balancing the competing interests of the parties, I am satisfied that this is an appropriate case for the exercise of the Court's discretion in favour of granting a stay of execution, but on terms.
26. The upshot of the foregoing is that I make the following final dispositive orders:
i. The Notice of Motion dated 4th March 2026 is dismissed.
ii. The Notice of Motion dated 3rd February 2026 is allowed on the following terms:
(a) There shall be a stay of execution of the judgment and decree delivered on 20th January 2026 pending the hearing and determination of the intended appeal.
(b) The Applicant shall, within twenty-one (21) days from the date of this ruling, deposit the entire decretal sum in an interest-earning account in the joint names of the advocates for the parties in a reputable commercial bank.
(c) In default of compliance with paragraph (b) above within the stipulated period, the stay granted herein shall automatically lapse without the necessity of any further order of the Court.
(d) The costs of the Notice of Motion dated 3rd February 2026 shall abide the outcome of the intended appeal.
(e) The costs of the Notice of Motion dated 4th March 2026, assessed at Kshs. 50,000/- is hereby awarded to the Respondent.
27. It is so ordered.
DATED, SIGNED, AND DELIVERED AT NAIROBI
THIS 9TH DAY OF JULY 2026
HON. MR. JUSTICE MOSES ADO
Judge of the High Court
In the Presence of:
Moses C/A
……………… for the Applicant
……………for the Respondents
2. Aggrieved by that decision, the Defendant lodged a Notice of Appeal, and thereafter filed the present Notice of Motion dated 3rd February 2026 seeking, principally, an order of stay of execution pending the hearing and determination of the intended appeal.
3. The application is expressed to be brought under Order 42 Rule 6 of the Civil Procedure Rules and is supported by the affidavit of Rosemary Wambugu, in which the Applicant contends that the intended appeal is arguable, that execution would occasion substantial loss by disrupting the operations of the school through attachment of its assets, and that the Applicant is willing to furnish security for the due performance of the decree.
4. Before that application could be heard, the Respondent commenced execution. The Applicant consequently filed a second Notice of Motion dated 4th March 2026 by its Advocate, Charles Njenga, seeking review of the Court's directions issued on 5th February 2026 and an interim stay of execution pending the hearing of the application dated 3rd February 2026. The Applicant contends that the commencement of execution before the stay application is heard would render that application nugatory.
5. The Respondent opposed both applications through the Replying Affidavits of Salome Beacco, contending that the Applicant has not satisfied the requirements either for review under Order 45 or for stay under Order 42 Rule 6.
6. The applications were canvassed by way of written submissions. The Applicant filed two sets of submissions, one dated 1st April 2026 in support of the application for review, and the other dated 20th May 2026, in support of the application for stay pending appeal.
7. The Respondent/Decree Holder, on the other hand, filed submissions dated 26th May 2026 in opposing the application for stay. No submissions were made in respect of the application for review. According to the Respondent, the Application dated 4th March 2026 for review was spent.
Analysis and Determination
8. I have carefully considered the pleadings in respect of the two applications and the submissions on record. I note that the applications raise the following two issues for determination:
i. Whether the Applicant has established grounds for review of the Court's directions issued on 5th February 2026.
ii. Whether the Applicant has satisfied the conditions for stay of execution pending appeal under Order 42 Rule 6 of the Civil Procedure Rules.
Whether the Applicant has established grounds for review
9. The jurisdiction of this Court to review its own orders is conferred by section 80 of the Civil Procedure Act and Order 45 Rule 1 of the Civil Procedure Rules.
10. A review may only be granted where there is discovery of new and important matter which, despite due diligence, was not within the applicant's knowledge; where there is an error apparent on the face of the record; or for any other sufficient reason.
11. The principles governing review are well settled. In National Bank of Kenya Ltd v Ndungu Njau [1997] eKLR, the Court of Appeal held that review is not available merely because a party considers the decision erroneous or because subsequent events have altered the circumstances. The jurisdiction is confined to correcting manifest errors or addressing the specific grounds prescribed by the Rules.
12. In the present case, the Applicant does not contend that there exists any error apparent on the face of the record. Nor has any new and important matter been discovered. The complaint is that after the Court directed parties to file responses and submissions on the stay application, the Respondent commenced execution before that application could be heard.
13. While the Court appreciates the Applicant's concern, commencement of execution pursuant to a valid decree does not render the procedural directions previously issued erroneous or reviewable. Those directions merely regulated the hearing of the stay application. The subsequent commencement of execution is not a ground for review within the meaning of Order 45 Rule 1.
14. In the premises, I therefore find that the Applicant has failed to establish any of the statutory grounds for review. The Notice of Motion dated 4th March 2026 is accordingly found to be without merit, and is hereby dismissed.
Whether the Applicant meets the threshold for a stay of execution under Order 42 Rule 6 of the Civil Procedure Rules
15. This is the substantive application.
16. Under Order 42 Rule 6(2), an applicant must demonstrate that the application has been brought without unreasonable delay, that substantial loss may result unless stay is granted, and that security has been offered for the due performance of the decree.
17. Regarding delay, the Court notes from the record that judgment in the present case was delivered on 20th January 2026. The Applicant lodged a Notice of Appeal on 26th January 2026 and filed the present application on 3rd February 2026. I am therefore satisfied that there was no unreasonable delay.
18. On the question of substantial loss, the guiding principle is as was expressed by the Court of Appeal in Kenya Shell Ltd v Benjamin Karuga Kibiru & Another [1986] KLR 410, that substantial loss is the cornerstone of the jurisdiction to grant stay. Similarly, in Butt v Rent Restriction Tribunal [1982] KLR 417, the Court held that the discretion to grant stay should be exercised so as not to render an appeal nugatory while balancing the successful litigant's right to enjoy the fruits of the judgment.
19. In opposition to the application, the Respondent in this case submitted that the decree is essentially a money decree and that no substantial loss has been demonstrated.
20. The Court agrees with the Decree Holder’s submissions that the execution of a money decree does not, without more, constitute substantial loss.
21. However, each case must be determined on its own facts.
22. In the present matter, the Applicant has demonstrated that execution has targeted assets integral to the running of the school, including school buses and operational equipment used in providing educational services. The Applicant contends that attachment of those assets would disrupt learning and the day-to-day operations of the institution pending the intended appeal.
23. Those circumstances distinguish this matter from the ordinary commercial money decree. The disruption of an ongoing educational institution and the attendant prejudice to pupils and school operations cannot readily be compensated by an award of damages should the intended appeal ultimately succeed.
24. Finally, on the security for due performance, the Court notes that the Applicant expressed willingness to furnish an irrevocable bank guarantee securing the decretal amount. The Court agrees with the Judgment Debtor’s submissions that security would sufficiently safeguard the Respondent's entitlement to the fruits of the judgment while preserving the Applicant's right to pursue the intended appeal.
25. Balancing the competing interests of the parties, I am satisfied that this is an appropriate case for the exercise of the Court's discretion in favour of granting a stay of execution, but on terms.
26. The upshot of the foregoing is that I make the following final dispositive orders:
i. The Notice of Motion dated 4th March 2026 is dismissed.
ii. The Notice of Motion dated 3rd February 2026 is allowed on the following terms:
(a) There shall be a stay of execution of the judgment and decree delivered on 20th January 2026 pending the hearing and determination of the intended appeal.
(b) The Applicant shall, within twenty-one (21) days from the date of this ruling, deposit the entire decretal sum in an interest-earning account in the joint names of the advocates for the parties in a reputable commercial bank.
(c) In default of compliance with paragraph (b) above within the stipulated period, the stay granted herein shall automatically lapse without the necessity of any further order of the Court.
(d) The costs of the Notice of Motion dated 3rd February 2026 shall abide the outcome of the intended appeal.
(e) The costs of the Notice of Motion dated 4th March 2026, assessed at Kshs. 50,000/- is hereby awarded to the Respondent.
27. It is so ordered.
DATED, SIGNED, AND DELIVERED AT NAIROBI
THIS 9TH DAY OF JULY 2026
HON. MR. JUSTICE MOSES ADO
Judge of the High Court
In the Presence of:
Moses C/A
……………… for the Applicant
……………for the Respondents