1. The Applicant approached this court through a Notice of Motion dated 14 th April, 2025, seeking orders thus;
1) Spent
2) Spent
3) That this Honourable Court be pleased to enlarge time and grant the applicant leave to file an appeal out of time against the Judgment /Decree dated 3 rd March 2025, in Nyahururu CMCC No. E1160 of 2022; Priscilla Njoki Mugo vs. Josphat Njoroge Muiru.
4) That there be stay of execution of the aforesaid Judgment/Decree pending the hearing and determination of the appeal.
5) That the costs of this application be provided for.
2. The application is premised on grounds that; The Judgment of the matter was entered on 03/03/2025 in favor of the Respondent herein, terms of the judgment were communicated to the client, Geminia Insurance Company Limited, in good time after the date with the client being advised to forward the cheque for settlement of the decretal sum, however, being aggrieved by the terms of the judgment, instructions received were to appeal though after the time prescribed to appeal.
3. That the delay in transmitting the instructions was occasioned by unforeseeable absence by the Legal officer handling the matter on account of bereavement. That if the Judgment/ Decree is not stayed the Intended appeal will be rendered nugatory.
4. And, that it is fair and just that there may be stay of execution of the Judgment and Decree pending hearing of the Judgment/Decree of the Intended appeal.
5. The application is supported by an affidavit deposed by Winny Chepkoech Bett, counsel in personal conduct of the matter, who deposes that the delay in transmitting the instructions to their firm was inadvertent as it was occasioned by unforeseeable absence by the Legal Officer of Geminia Insurance Company Limited which is obligated to settle the decretal sum.
6. She avers interalia that if stay of execution is not granted, the appeal will be rendered nugatory which will occasion substantial and irreparable loss to the Applicant and insurer. That the Applicant is amenable to furnishing security pending the appeal as may be directed by the court and has moved timeously.
7. That the Respondent will suffer no real prejudice if the application is allowed as they are ready to furnish security by depositing the entire decretal amount in joint interest earning account in the names of the advocates on record.
8. In response, the Respondent, Priscilla Njoki Mugo, filed a replying affidavit where she deposes that the Applicant’s intention is to forestall and frustrate her quest for justice. That in the course of trial the Applicant has been indolent in defending his case. That when the lower court was instituted, the Applicant was served with pleadings but failed and or refused to enter appearance where after ex-parte judgment was entered, that is when he rushed to court to have it set aside.
9. That the explanation given by the Applicant’s advocate on why there was delay in filing the appeal within the stipulated time was that it was inadequate. That averments by the Applicant’s advocate are unproven as there is no evidence to prove the allegations. That no evidence of communication has been presented of communication between the advocate and the instructing client to prove when instructions to prefer the appeal were given.
10. That the Applicant and instructing client were aware of the damages awarded and had they believed that they were excessive, they would have appealed within 30 days period. That being a money decree, the Applicant does not stand to suffer any substantial loss.
11. That the judgment which is sound was delivered based on evidence adduced after parties agreed to have documents produced by consent without calling witnesses and liability in the ratio of 90:10 against the Applicant. That the Applicant does not have a strong appeal with high chances of success and the draft Memorundum of Appeal does not raise any pertinent points of law and that considering that he suffered permanent incapacity which was assessed at 32% the damages awarded were not excessive.
12. I have duly considered the application, supporting and opposing affidavits, annexures thereto and rival arguments. Grant of stay of execution is discretionary which behooves the court to consider circumstances of the case as well as the interest of justice. The principles governing the same are provided by Order 42 Rule 6(1) (2) of the Civil Procedure Rules which enacts that;
(1)No appeal or second appeal shall operate as a stay of execution or proceedings 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 sub rule (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.
13. In that regard, the court must be satisfied that substantial loss may result; the application was made without due delay and the Applicant must be willing to provide security for due performance of the decree.
14. On the issue if substantial loss resulting if stay of execution is not granted; In Kenya Shell Ltd v Benjamin Karuga Kibiru & Another [1986] eKLR the court stated that;
“…substantial loss, and such loss cannot be inferred in this case.
But this court must look at the matter from the point of view of rule 5(2) of Court of Appeal Rules, and here the test would be whether the appeal would be rendered nugatory, unless payment of the decretal sum were stayed. It is not normal in money decrees for the appeal to be rendered nugatory, if payment is made. The affidavit in support has not set out any information to show that the appeal will be nugatory.”
15. In James Wangalwa & Another v Agnes Naliaka Chesoto [2012] eKLR the court stated thus;
“No doubt, in law, the fact that the process of execution has been put in motion, or is likely to be put in motion, by itself, does not amount to substantial loss. Even when execution has been levied and completed, that is to say, the attached properties have been sold, as is the case here, does not in itself amount to substantial loss under Order 42 Rule 6 of the CPR. This is so because execution is a lawful process.
The applicant must establish other factors which show that the execution will create a state of affairs that will irreparably affect or negate the very essential core of the Applicant as the successful party in the appeal. This is what substantial loss would entail, a question that was aptly discussed in the case of Silverstein N. Chesoni [2002] 1KLR 867, and also in the case of Mukuma V Abuoga quoted above. The last case, referring to the exercise of discretion by the High Court and the Court of Appeal in the granting stay of execution, under Order 42 of the CPR and Rule 5(2) (b) of the Court of Appeal Rules, respectively, emphasized the centrality of substantial loss thus:
“…the issue of substantial loss is the cornerstone of both jurisdictions. Substantial loss is what has to be prevented by preserving the status quo because such loss would render the appeal nugatory.”
16. The Applicant argues that unless stay pending appeal is granted, execution of the judgment may proceed before the appeal is heard and determined, and once the decretal sum is paid out, there is a real risk that the Respondent may be unable to refund the amount should the appeal succeed which would render the appeal nugatory and defeat the ends of justice. It is however argued by the Respondent that she is entitled to commence execution proceedings. That to grant stay on mere apprehension of execution would unjustly deprive the Respondent the fruits of judgment and the amount to be paid being determinable, in case the appeal succeeds the Applicant has not alluded to the Respondent being incapable of not refunding it. And being a money decree, the Applicant cannot purport to suffer any substantial loss.
17. In the instant case there is apprehension that the Respondent may not refund the decretal sum if paid out. In National Industrial Credit Bank Ltd v Aquinas Francis Wasike & Another [2006] KECA 333(KLR) the Court of Appeal stated that:
“Once an Applicant expresses a reasonable fear that a respondent would be unable to pay back the decretal sum, the evidential burden must then shift to the respondent to show what resources he has since that is a matter which is peculiarly within his knowledge”
18. The Applicant having expressed fear of inability on the part of the Respondent to repay the decretal sum should the appeal succeed, the evidential burden shifted to the Respondent to demonstrate that she has sufficient means with the capacity to refund at least some of the decretal amount, if the appeal succeeds. In the instant matter, parties consented to liability, the gravamen is the award on quantum, which they consider too high. The Respondent has not demonstrated the ability to repay some of the decretal sum incase the appeal succeeds. In event that the appeal succeeds, there may be the risk of nonpayment resulting into loss of some of the decretal amount.
19. That notwithstanding, on the issue of the appeal succeeding, looking at the draft memorandum of appeal, the trial magistrate is faulted for making an excessive award in General Damages in favour of the Respondent based on misapprehension of facts and evidence, and, wrong legal principles as well as case law applicable.
20. On the question whether the application was made timeously without due delay, the judgment in the matter was delivered on 3rd March, 2025. And the instant application filed on 14 th April 2025. The Applicant having had 30 days right of Appeal, hence, the delay was for eleven days.
21. Section 79G of the Civil Procedure Act provides as follows;
Every appeal from a subordinate court to the High Court shall be filed within a period of thirty days from the date of the decree or order appealed against, excluding from such period any time which the lower court may certify as having been requisite for the preparation and delivery to the appellant of a copy of the decree or order.
22. An explanation is given for what occasioned the delay which is vehemently opposed by the Respondent. Although the Respondent doubts the reason given for want of written communication to the insurer, a delay of eleven days cannot be stated to be inordinate.
23. The Applicant is amenable to providing security for due performance of the decree as the court may direct so that the Respondent is not prejudiced. The proposal is to furnish security by depositing the entire decretal sum in a joint interest-earning account in the names of both parties’ advocates on record. Willingness to deposit the decretal sum in an account demonstrates the Applicant’s willingness to pursue the appeal.
24. In the premises, I grant orders as follows;
(1) The Applicant be and is hereby granted leave to appeal out of time within 30 days’ of today.
(2) There be stay of execution of the judgment and decree in Nyahururu CMCC No. E1160 of 2022; Priscilla Njoki Mugo v Josphat Njoroge Muiru, pending hearing and determination of the intended appeal on condition that Ksh. 1.5 Million be paid to the Respondent and the balance of decretal sum be deposited in a joint interest-earning account in the names of both parties’ advocates on record for the due performance of the decree within 30 days’ of today, 23 rd day of December, 2025.
(3) In default, the orders granted shall lapse and execution to issue.
(4) Costs of the application to abide the appeal.
1) Spent
2) Spent
3) That this Honourable Court be pleased to enlarge time and grant the applicant leave to file an appeal out of time against the Judgment /Decree dated 3 rd March 2025, in Nyahururu CMCC No. E1160 of 2022; Priscilla Njoki Mugo vs. Josphat Njoroge Muiru.
4) That there be stay of execution of the aforesaid Judgment/Decree pending the hearing and determination of the appeal.
5) That the costs of this application be provided for.
2. The application is premised on grounds that; The Judgment of the matter was entered on 03/03/2025 in favor of the Respondent herein, terms of the judgment were communicated to the client, Geminia Insurance Company Limited, in good time after the date with the client being advised to forward the cheque for settlement of the decretal sum, however, being aggrieved by the terms of the judgment, instructions received were to appeal though after the time prescribed to appeal.
3. That the delay in transmitting the instructions was occasioned by unforeseeable absence by the Legal officer handling the matter on account of bereavement. That if the Judgment/ Decree is not stayed the Intended appeal will be rendered nugatory.
4. And, that it is fair and just that there may be stay of execution of the Judgment and Decree pending hearing of the Judgment/Decree of the Intended appeal.
5. The application is supported by an affidavit deposed by Winny Chepkoech Bett, counsel in personal conduct of the matter, who deposes that the delay in transmitting the instructions to their firm was inadvertent as it was occasioned by unforeseeable absence by the Legal Officer of Geminia Insurance Company Limited which is obligated to settle the decretal sum.
6. She avers interalia that if stay of execution is not granted, the appeal will be rendered nugatory which will occasion substantial and irreparable loss to the Applicant and insurer. That the Applicant is amenable to furnishing security pending the appeal as may be directed by the court and has moved timeously.
7. That the Respondent will suffer no real prejudice if the application is allowed as they are ready to furnish security by depositing the entire decretal amount in joint interest earning account in the names of the advocates on record.
8. In response, the Respondent, Priscilla Njoki Mugo, filed a replying affidavit where she deposes that the Applicant’s intention is to forestall and frustrate her quest for justice. That in the course of trial the Applicant has been indolent in defending his case. That when the lower court was instituted, the Applicant was served with pleadings but failed and or refused to enter appearance where after ex-parte judgment was entered, that is when he rushed to court to have it set aside.
9. That the explanation given by the Applicant’s advocate on why there was delay in filing the appeal within the stipulated time was that it was inadequate. That averments by the Applicant’s advocate are unproven as there is no evidence to prove the allegations. That no evidence of communication has been presented of communication between the advocate and the instructing client to prove when instructions to prefer the appeal were given.
10. That the Applicant and instructing client were aware of the damages awarded and had they believed that they were excessive, they would have appealed within 30 days period. That being a money decree, the Applicant does not stand to suffer any substantial loss.
11. That the judgment which is sound was delivered based on evidence adduced after parties agreed to have documents produced by consent without calling witnesses and liability in the ratio of 90:10 against the Applicant. That the Applicant does not have a strong appeal with high chances of success and the draft Memorundum of Appeal does not raise any pertinent points of law and that considering that he suffered permanent incapacity which was assessed at 32% the damages awarded were not excessive.
12. I have duly considered the application, supporting and opposing affidavits, annexures thereto and rival arguments. Grant of stay of execution is discretionary which behooves the court to consider circumstances of the case as well as the interest of justice. The principles governing the same are provided by Order 42 Rule 6(1) (2) of the Civil Procedure Rules which enacts that;
(1)No appeal or second appeal shall operate as a stay of execution or proceedings 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 sub rule (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.
13. In that regard, the court must be satisfied that substantial loss may result; the application was made without due delay and the Applicant must be willing to provide security for due performance of the decree.
14. On the issue if substantial loss resulting if stay of execution is not granted; In Kenya Shell Ltd v Benjamin Karuga Kibiru & Another [1986] eKLR the court stated that;
“…substantial loss, and such loss cannot be inferred in this case.
But this court must look at the matter from the point of view of rule 5(2) of Court of Appeal Rules, and here the test would be whether the appeal would be rendered nugatory, unless payment of the decretal sum were stayed. It is not normal in money decrees for the appeal to be rendered nugatory, if payment is made. The affidavit in support has not set out any information to show that the appeal will be nugatory.”
15. In James Wangalwa & Another v Agnes Naliaka Chesoto [2012] eKLR the court stated thus;
“No doubt, in law, the fact that the process of execution has been put in motion, or is likely to be put in motion, by itself, does not amount to substantial loss. Even when execution has been levied and completed, that is to say, the attached properties have been sold, as is the case here, does not in itself amount to substantial loss under Order 42 Rule 6 of the CPR. This is so because execution is a lawful process.
The applicant must establish other factors which show that the execution will create a state of affairs that will irreparably affect or negate the very essential core of the Applicant as the successful party in the appeal. This is what substantial loss would entail, a question that was aptly discussed in the case of Silverstein N. Chesoni [2002] 1KLR 867, and also in the case of Mukuma V Abuoga quoted above. The last case, referring to the exercise of discretion by the High Court and the Court of Appeal in the granting stay of execution, under Order 42 of the CPR and Rule 5(2) (b) of the Court of Appeal Rules, respectively, emphasized the centrality of substantial loss thus:
“…the issue of substantial loss is the cornerstone of both jurisdictions. Substantial loss is what has to be prevented by preserving the status quo because such loss would render the appeal nugatory.”
16. The Applicant argues that unless stay pending appeal is granted, execution of the judgment may proceed before the appeal is heard and determined, and once the decretal sum is paid out, there is a real risk that the Respondent may be unable to refund the amount should the appeal succeed which would render the appeal nugatory and defeat the ends of justice. It is however argued by the Respondent that she is entitled to commence execution proceedings. That to grant stay on mere apprehension of execution would unjustly deprive the Respondent the fruits of judgment and the amount to be paid being determinable, in case the appeal succeeds the Applicant has not alluded to the Respondent being incapable of not refunding it. And being a money decree, the Applicant cannot purport to suffer any substantial loss.
17. In the instant case there is apprehension that the Respondent may not refund the decretal sum if paid out. In National Industrial Credit Bank Ltd v Aquinas Francis Wasike & Another [2006] KECA 333(KLR) the Court of Appeal stated that:
“Once an Applicant expresses a reasonable fear that a respondent would be unable to pay back the decretal sum, the evidential burden must then shift to the respondent to show what resources he has since that is a matter which is peculiarly within his knowledge”
18. The Applicant having expressed fear of inability on the part of the Respondent to repay the decretal sum should the appeal succeed, the evidential burden shifted to the Respondent to demonstrate that she has sufficient means with the capacity to refund at least some of the decretal amount, if the appeal succeeds. In the instant matter, parties consented to liability, the gravamen is the award on quantum, which they consider too high. The Respondent has not demonstrated the ability to repay some of the decretal sum incase the appeal succeeds. In event that the appeal succeeds, there may be the risk of nonpayment resulting into loss of some of the decretal amount.
19. That notwithstanding, on the issue of the appeal succeeding, looking at the draft memorandum of appeal, the trial magistrate is faulted for making an excessive award in General Damages in favour of the Respondent based on misapprehension of facts and evidence, and, wrong legal principles as well as case law applicable.
20. On the question whether the application was made timeously without due delay, the judgment in the matter was delivered on 3rd March, 2025. And the instant application filed on 14 th April 2025. The Applicant having had 30 days right of Appeal, hence, the delay was for eleven days.
21. Section 79G of the Civil Procedure Act provides as follows;
Every appeal from a subordinate court to the High Court shall be filed within a period of thirty days from the date of the decree or order appealed against, excluding from such period any time which the lower court may certify as having been requisite for the preparation and delivery to the appellant of a copy of the decree or order.
22. An explanation is given for what occasioned the delay which is vehemently opposed by the Respondent. Although the Respondent doubts the reason given for want of written communication to the insurer, a delay of eleven days cannot be stated to be inordinate.
23. The Applicant is amenable to providing security for due performance of the decree as the court may direct so that the Respondent is not prejudiced. The proposal is to furnish security by depositing the entire decretal sum in a joint interest-earning account in the names of both parties’ advocates on record. Willingness to deposit the decretal sum in an account demonstrates the Applicant’s willingness to pursue the appeal.
24. In the premises, I grant orders as follows;
(1) The Applicant be and is hereby granted leave to appeal out of time within 30 days’ of today.
(2) There be stay of execution of the judgment and decree in Nyahururu CMCC No. E1160 of 2022; Priscilla Njoki Mugo v Josphat Njoroge Muiru, pending hearing and determination of the intended appeal on condition that Ksh. 1.5 Million be paid to the Respondent and the balance of decretal sum be deposited in a joint interest-earning account in the names of both parties’ advocates on record for the due performance of the decree within 30 days’ of today, 23 rd day of December, 2025.
(3) In default, the orders granted shall lapse and execution to issue.
(4) Costs of the application to abide the appeal.