Coram: Before Justice R. Nyakundi
M/S Walter & Keya Advocates LLP
RULING
1. Before this Court is Notice of Motion dated 8th day of June 2026, expressed to
be brought under Sections 1A, 1B, 3A, 75 and 95 of the Civil Procedure Act,
Order 43 Rule 1, Order 50 Rule 6, Order 51 Rule 1 of the Civil Procedure
Rules, Article 50 and 159 of the Constitution and all other enabling provisions
of the law. The Appellant’s seeks the following orders:
a. Spent.
b. Pending the hearing and determination of this Application, there be a
temporary stay of execution of the ruling and consequential orders delivered
on 23rd June 2026 in Vihiga MCCC No. E184 of 2021.
c. The Appellants be granted leave to appeal against the ruling delivered on
23rd June 2026 by Hon. J.A. Agonda (SPM).
d. The annexed Memorandum of Appeal be deemed as duly filed upon
payment of the requisite Court fees.
e. Pending the hearing and determination of the intended appeal, there be a
stay of execution of the ruling and all consequential orders.
f. Costs of this Application abide the outcome of the intended appeal.
2. The application is grounded on the grounds that:
a. The learned trial magistrate delivered the impugned ruling on 23rd June
2026.
b. The Appellants are dissatisfied with the whole ruling and intend to appeal.
c. At the time of the accident, the subject motor vehicle was insured by Invesco
Assurance Company Limited.
d. Invesco Assurance Company Limited is presently under liquidation and the
Appellants' inability to immediately satisfy the decree arose from
circumstances beyond their control.
e. The learned trial magistrate failed to properly appreciate the legal effect of
the insurer's liquidation while exercising discretion in execution proceedings.
f. The intended appeal raises serious and arguable issues of law with
overwhelming chances of success.
g. Unless stay is granted, execution will proceed and the intended appeal will
be rendered nugatory.
h. The Respondent will not suffer prejudice incapable of compensation by
costs.
i. It is in the interests of justice that the orders sought be granted.
3. The application is supported by the sworn affidavit of Joseph Nyarige who
deponed as follows:
a. THAT I am the 1st Defendant/Appellant herein hence competent to swear
this Affidavit.
b. THAT I have read and understood the contents of the Notice of Motion filed
herewith and I swear this Affidavit in support thereof.
c. THAT on 23rd June 2026, Hon. J.A. Agonda (SPM) delivered a ruling in
Vihiga MCCC No. E184 of 2021 directing that I settle the decretal sum of
Kshs. 389,410 together with costs and interest within thirty (30) days,
failing which execution would issue. Annexed hereto and marked "JN-1" is
a copy of the ruling.
d. THAT I am dissatisfied with the whole of the said ruling and have instructed
my advocates to appeal against it.
e. THAT I am advised by my advocates on record, which advice I verily believe
to be true, that the impugned ruling is not appealable as of right and that
leave of this Honourable Court is required before an appeal can be lodged.
f. THAT the impugned ruling was delivered on 23rd June 2026 and although
I was desirous of appealing against it, I was unable to file the intended
appeal within the prescribed period as I first had to obtain legal advice,
secure copies of the ruling and relevant documents, and consider the legal
implications arising from the liquidation of my insurer.
g. THAT the delay in filing the intended appeal has neither been deliberate nor
inordinate but was occasioned by the foregoing circumstances and the need
to obtain proper legal advice on the effect of the liquidation proceedings on
my rights and obligations.
h. THAT at all material times, the motor vehicle involved in the accident giving
rise to this suit was validly insured by Invesco Assurance Company Limited
under a policy of insurance issued before the accident.
i. THAT I procured the said insurance in good faith with the legitimate
expectation that the insurer would indemnify me against any third-party
liability arising from the use of the insured motor vehicle.
j. THAT before the decree could be satisfied, Invesco Assurance Company
Limited was placed under liquidation and consequently ceased settling
claims in the ordinary course of business.
k. THAT my inability to immediately satisfy the decree has arisen solely
because the insurer responsible for indemnifying me is under liquidation
and not because I have deliberately refused or neglected to honour the
decree.
l. THAT I brought the foregoing facts to the attention of the trial Court.
However, the learned trial magistrate failed to properly consider the legal
effect of the insurer's liquidation in determining the Notice to Show Cause.
m. THAT I am advised by my advocates on record, which advice I verily believe
to be true, that the intended appeal raises serious and arguable questions
of law and fact, including whether the learned trial magistrate properly
exercised his discretion under Section 38 of the Civil Procedure Act and
whether the execution proceedings are sustainable in light of Section
67C(11) of the Insurance Act, considering that the insurer was under
liquidation.
n. THAT I am further advised by my said advocates, which advice I verily
believe to be true, that the legal issues raised in the intended appeal were
considered by the High Court in Rono & another v Wanyama (Civil Appeal
E054 of 2024) KEHC 18212 (KLR), wherein the Court considered the effect
of Section 67C(11) of the Insurance Act on execution proceedings against an
insured whose insurer is under liquidation.
o. THAT I have prepared a Memorandum of Appeal setting out the grounds
upon which I challenge the impugned ruling. Annexed hereto and marked
"JN-2" is a copy of the Memorandum of Appeal.
p. THAT unless this Honourable Court grants leave to appeal and stays
execution, the Respondent is likely to commence execution proceedings
against me before my appeal is heard and determined.
q. THAT if execution proceeds, I stand to suffer substantial loss and the
intended appeal will be rendered nugatory.
r. THAT the intended appeal has overwhelming chances of success and raises
substantial issues deserving determination by this Honourable Court.
s. THAT the Respondent will not suffer any prejudice incapable of being
compensated by an award of costs if the orders sought are granted.
t. THAT this Application has been brought without unreasonable delay and in
good faith.
u. THAT it is in the interests of justice, fairness and the overriding objective of
the Court that the orders sought be granted.
4. In response to the application is the replying affidavit of Brown Ajenga Lomosi
who avers as follows:
a. THAT I am the Respondent/Plaintiff in this matter, hence competent to
swear this Affidavit.
b. THAT the contents of the Appellant’s Notice of motion dated 11th June 2026
and have been read out and explained to me by my advocate on record and
I wish to reply as follows:
c. THAT I have read and understood the Notice of Motion dated 11th June 2026
together with the Supporting Affidavit sworn by the Appellant in support
thereof and I wish to respond thereto.
d. THAT save where expressly admitted herein, I deny each and every
allegation contained in the Supporting Affidavit as if the same were set out
herein seriatim and traversed.
e. THAT my advocate has advised me and which advice I believe to be true
that the Application is misconceived, devoid of merit, an abuse of the process
of this Honourable Court and does not satisfy the legal threshold for the
grant of the orders sought as the Appellant has failed to demonstrate
satisfactorily that he stands to suffer substantial loss should execution
proceed.
f. THAT I also wish to state that this matter concerns execution for a money
decree and my advocate has advised me and which advice I believe to be
true that it has been restated in several judicial pronouncements that Courts
should not be quick to grant orders of stay of execution of money decrees.
g. THAT I also wish to state that the Appellant has engaged in unending tactics
to frustrate the execution of the decree as stated in my affidavit dated ….
which I filed in the primary suit and annexed the relevant evidence.
h. THAT the contents of paragraph 6 are denied for being untrue. The Applicant
was all along represented by the same advocate who has filed this
Application. The documents in the primary case including the Ruling were
available on the judiciary CTS and the explanation that the Applicant was
looking for copies is not plausible
i. THAT the contents of paragraph 7 are not true and are denied for the reason
that the liquidation of Invesco Assurance Company are not relevant to this
suit as the Applicant never referred the primary suit to the said company for
representation nor was there any evidence that the company was involved
in the matter
j. THAT the contents of paragraphs 8 and 9 are not true as no such policy was
ever availed in the primary suit. Even if the Applicant held such a policy, he
did not derive any benefit from it as the matter case was never referred to
the insurance company. Nothing would have been easier for the Applicant
than to annex the evidence of such insurance policy or communication
between him and the said company.
k. THAT the contents of paragraph 10 and 11 are not true and are denied for
the reason the Applicant never involved the insurance company nor did he
submit any claim to Policyholders Compensation Fund are required and
within the time that was required in the Notice. No evidence has been
availed by the Applicant to prove that indeed he submitted the claim.
(annexed is the Notice marked BA 2 & 3)
l. THAT the contents of paragraph 12 are not true and are denied as the trial
magistrate correctly analysed all the issues and the relevant law before
arriving at the Ruling which allows no room for appeal
m. THAT in response to paragraph 13 and on the advice of my advocate which
I believe is true, I state that the Ruling as delivered was valid and based on
the discretion of the trial magistrate which was exercised judiciously and
the sections of the law as cited by the Applicant do not avail the Applicant
any remedy
n. THAT in response to paragraphs 14, my advocate had advised me and
which advice I believe to be true that there is nothing in the primary suit and
even in this Application to demonstrate that the Applicant is protected by the
principles in the Rono case (as cited by the Applicant or Section 67C(11) of
the Insurance Act as the Appellant never involved the said company in the
proceedings.
o. THAT in response to paragraph 15, my advocate has advised me and which
advice I believe to be true that the appeal as presented is devoid of any
triable issues and the Applicant is only bent on making me to enjoy the fruits
of my judgement thereby making it a paper judgement.
p. THAT in response to paragraph 16 and 17 and on the advice of my advocate
and which I believe to be true, I state that Courts have consistently held that
commencement of execution in not a reason for grant of stay of execution.
q. THAT in response to paragraph 18 and on the advice of my advocate which
I believe to be true, Courts have consistently stated that substantial loss
must be demonstrated but in this case the Applicant has even attempted to
demonstrate such loss
r. THAT the contents of paragraph 19 are not true and are denied. To the
contrary, it is me who continues to suffer prejudice as I have been denied
the fruits of my judgement from 19th August 2022 when the judgement was
delivered. It is now 47 months from the time the judgement was delivered
and I have suffered and continue to suffer the fruits of my judgement due to
the Applicants refusal to comply. Instead, he continues to file numerous
applications in order to avoid settling the judgement.
s. THAT the contents of paragraph 20 and 21 are not true and are denied
t. THAT despite seeking the equitable remedy of stay of execution, the
Appellant has neither deposited any portion of the decretal sum nor offered
any security whatsoever for the due performance of the decree as required
by law.
u. THAT the deliberate to offer security demonstrates that the present
Application has not met the mandatory conditions governing the grant of an
order of stay pending Appeal.
v. THAT I am advised by my advocates on record, which advice I verily believe
to be true, that the existence of an intended appeal or the Appellant's
dissatisfaction with the decision of the trial Court does not, of itself, entitle
the Appellant to an order of stay of execution.
w. THAT should this Court be minded to grant the order of stay, the same
should be conditional upon the Appellant depositing the entire decretal sum
KSHS 389,410.00 together with the Auctioneers costs of Kshs 191,127.06
should be deposited in a joint interest earning account in the names of both
advocates within a period of Seven days from the date of the order, in
default of which the stay should automatically lapse and execution to
proceed against the Appellant's property (attached is the Auctioneer’s fee
marked BA 4)
x. THAT I swear this Affidavit in opposition to the Notice of Motion and pray
that the same be dismissed with costs to the Respondent.
5. This appeal was set to be canvased by way of written submissions but on
checking on the online portal it was only the Respondent who had complied
by filing written submissions dated 17th of July 2026. In the body of the
submissions shared with the Court learned Counsel tackled three
predominant issues namely;
a. Whether the Applicant has demonstrated substantial loss
b. Whether the Applicant has offered sufficient security for the decree
c. Whether the Applicant’s personal liability is extinguished upon liquidation
of the insurer.
6. It was learned Counsel contention that grounded on Order 42 Rule 6(2)(a) of
the CPR and illuminating principles Kenya Shell Ltd v Benjamin Karuga
Kibiru & Another [1986] eKLR and Kirimi & Another v Gichangi (Civil
Appeal E079 of 2025) [2025] KEHC, the condition precedents outlined in
the Rule cited above have not been discharged by the Applicant and the
motion on record should be dismissed.
7. In the instant case the Applicant is aggrieved with the decision of the Court
below as demonstrated by the grounds in the memorandum of appeal which
reads as follows:
a. The learned trial magistrate erred in law and fact in allowing the Notice to
Show Cause.
b. The learned trial magistrate erred in law by failing to properly consider the
effect of the liquidation of Invesco Assurance Company Limited on the
Appellants' liability.
c. The learned trial magistrate erred in law by failing to apply Section 67C(11)
of the Insurance Act.
d. The learned trial magistrate erred in law and fact by finding that the
Appellants had failed to show sufficient cause against execution.
e. The learned trial magistrate erred in law by improperly exercising his
discretion under Section 38 of the Civil Procedure Act.
f. The learned trial magistrate failed to properly evaluate the evidence and
submissions before the Court.
g. The ruling was against the law and the evidence.
h. WHEREFORE, the Appellants pray that this Honourable Court:
a. Allows the appeal.
b. Sets aside the Ruling and Orders delivered on 23rd June 2026.
c. Dismisses the Notice to Show Cause dated 1st April 2025.
d. Awards the costs of this appeal and of the proceedings before the trial
Court to the Appellants.
8. It is now settled law as demonstrated by the Court in the case of Stephen
Wanjohi v Central Glass Industries Ltd Civil Case No. 6726 of 1991 in
which it was held that:
a. For the Court to order a stay of execution there must be:
(i) Sufficient cause;
(ii) Substantial loss;
(iii) No unreasonable delay; and
(iv) Security.
b. The grant of stay is discretionary and the High Court is also a Court of
equity.
c. It is not just to deny a successful party the benefit of judgment because he
is poor. The Court does not make a practice of depriving a successful
litigant of the fruits of his litigation and locking up funds to which, prima
facie he is entitled pending appeal. (See also George Oraro v Kenya
Television Network Civil Case 151 of 1992 and Vishram Ravji Halai
v Thornton & Turpin [1990] KLR 365)
9. It is also the expectation of the law on stay of execution pending appeal that
the aim of the Court is to make sure, in an even handed manner that the
appeal would not be prejudiced and that the decretal sum would be available
if required. The Respondent is not entitled, for instance, to make life difficult
for the Applicant, so as to tempt him into settling the appeal. The process of
giving security is one, which arises constantly. So long as the opposite party
can be adequately protected, it is right and proper that security should be given
in a way, which is least disadvantageous to the party giving the security. It
may take many forms. Bank guarantee and payment into Court are but two of
them. So long as it is adequate, then the form of it is a matter, which is
immaterial. In an application for stay pending appeal the Court is faced with a
situation where judgment has been given. It is subject to appeal. It maybe
affirmed or it may be set aside. The Court is concerned with preserving the
rights of both parties pending that appeal. It is not the function of the Court to
disadvantage the defendant while giving no legitimate advantage to the
plaintiffs. It is the duty of the Court to hold the ring even-handedly without
prejudicing the issue pending the appeal. For that purpose, it matters not
whether the plaintiffs are secured in one way rather than another. It would be
easier for the defendants or if for any reason they would prefer to provide
security by a bank guarantee rather than cash. There is absolutely no reason
in principle why they should not do so. See Rosengrens Ltd v Safe Deposit
CIVIL APPEAL NO. E027 OF 2026 11
Centres Ltd [1984] 3 All ER 198 and Nduhiu Gitahi v Warungongo [1988]
KLR 621).
10. What can be appreciated from the above authorities is that the core
principles established by Kenyan’s Court on stay of execution pending appeal
include the following inter alia:
a. A stay of execution pending an appeal is not automatic even within the
purposive interpretation of the constitution imperative on the right of an
appeal.
b. There may be justification under Art 24 of the Constitution to have that
right limited as indicative of certain provisions in the statute that an
appeal can only be lodged to the superior Court based on a point of law
or in certain cases leave has got to be applied for although now in
succession matters the apex Court has clarified that position that leave
to appeal is not a necessity.
c. The "Nugatoriness" Test: The Applicant must prove that without a stay,
the eventual success of the appeal will be rendered meaningless (e.g., the
subject matter of the dispute will be destroyed, or the winning party will
be unable to refund the judgment sum).
d. Fruits of Litigation: Courts adhere to the established common law
principle (rooted in English cases like Monk v Bartram) that a successful
litigant should not be easily deprived of the "fruits" of their judgment
e. Special Circumstances: The fact that an appellant believes they have a
reasonable chance of success does not, on its own, constitute a special
circumstance.
f. Security for the Judgment: The Court of Appeal frequently attaches
conditions to the stay, such as requiring the Applicant to deposit the
judgment sum in a joint, interest-bearing escrow account managed by
solicitors to protect the Respondent's interests.
11. I have reviewed the notice of motion, the affidavit evidence in support
together with the replying affidavit by the Respondent and further the
submission on the legal typology by Learned Counsel for the Respondent and
I am of the consider view that there is merit to grant stay of execution of the
ruling of the Court below dated 23rd day of June 2026 on condition that
decretal sum of Kshs 389,410/- be deposited with the Deputy Registrar of the
High Court within 45 days from today’s ruling. That further for purpose of
expediency the appellants shall file the record of appeal within 21 days from
today’s ruling and the appeal shall be deemed to have been admitted for
hearing and the procedural protocols of having it canvassed by way of written
submission shall take effect after expiry of 21 days ordered above by this
Court. That thereafter each legal Counsel on record seized of instructions to
represent the respective parties to this appeal shall simultaneously filed
his/her submissions on the predominant issues raised on the memorandum
of appeal and toward that end reasonably so a judgement has been set on
delivery on 16th September 2026. For avoidance of doubt the orders on stay
of execution shall lapsed in the event the appellants default in depositing the
decretal sum before the Deputy Registrar of the High Court within the
scheduled period of 21 days. That in terms of compliance this matter shall be
mentioned before the Deputy Registrar of the High Court 17th August 2026.
It is so ordered.
DATED, SIGNED AND DELIVERED THIS 20TH DAY OF JULY 2026.
M/S Walter & Keya Advocates LLP
RULING
1. Before this Court is Notice of Motion dated 8th day of June 2026, expressed to
be brought under Sections 1A, 1B, 3A, 75 and 95 of the Civil Procedure Act,
Order 43 Rule 1, Order 50 Rule 6, Order 51 Rule 1 of the Civil Procedure
Rules, Article 50 and 159 of the Constitution and all other enabling provisions
of the law. The Appellant’s seeks the following orders:
a. Spent.
b. Pending the hearing and determination of this Application, there be a
temporary stay of execution of the ruling and consequential orders delivered
on 23rd June 2026 in Vihiga MCCC No. E184 of 2021.
c. The Appellants be granted leave to appeal against the ruling delivered on
23rd June 2026 by Hon. J.A. Agonda (SPM).
d. The annexed Memorandum of Appeal be deemed as duly filed upon
payment of the requisite Court fees.
e. Pending the hearing and determination of the intended appeal, there be a
stay of execution of the ruling and all consequential orders.
f. Costs of this Application abide the outcome of the intended appeal.
2. The application is grounded on the grounds that:
a. The learned trial magistrate delivered the impugned ruling on 23rd June
2026.
b. The Appellants are dissatisfied with the whole ruling and intend to appeal.
c. At the time of the accident, the subject motor vehicle was insured by Invesco
Assurance Company Limited.
d. Invesco Assurance Company Limited is presently under liquidation and the
Appellants' inability to immediately satisfy the decree arose from
circumstances beyond their control.
e. The learned trial magistrate failed to properly appreciate the legal effect of
the insurer's liquidation while exercising discretion in execution proceedings.
f. The intended appeal raises serious and arguable issues of law with
overwhelming chances of success.
g. Unless stay is granted, execution will proceed and the intended appeal will
be rendered nugatory.
h. The Respondent will not suffer prejudice incapable of compensation by
costs.
i. It is in the interests of justice that the orders sought be granted.
3. The application is supported by the sworn affidavit of Joseph Nyarige who
deponed as follows:
a. THAT I am the 1st Defendant/Appellant herein hence competent to swear
this Affidavit.
b. THAT I have read and understood the contents of the Notice of Motion filed
herewith and I swear this Affidavit in support thereof.
c. THAT on 23rd June 2026, Hon. J.A. Agonda (SPM) delivered a ruling in
Vihiga MCCC No. E184 of 2021 directing that I settle the decretal sum of
Kshs. 389,410 together with costs and interest within thirty (30) days,
failing which execution would issue. Annexed hereto and marked "JN-1" is
a copy of the ruling.
d. THAT I am dissatisfied with the whole of the said ruling and have instructed
my advocates to appeal against it.
e. THAT I am advised by my advocates on record, which advice I verily believe
to be true, that the impugned ruling is not appealable as of right and that
leave of this Honourable Court is required before an appeal can be lodged.
f. THAT the impugned ruling was delivered on 23rd June 2026 and although
I was desirous of appealing against it, I was unable to file the intended
appeal within the prescribed period as I first had to obtain legal advice,
secure copies of the ruling and relevant documents, and consider the legal
implications arising from the liquidation of my insurer.
g. THAT the delay in filing the intended appeal has neither been deliberate nor
inordinate but was occasioned by the foregoing circumstances and the need
to obtain proper legal advice on the effect of the liquidation proceedings on
my rights and obligations.
h. THAT at all material times, the motor vehicle involved in the accident giving
rise to this suit was validly insured by Invesco Assurance Company Limited
under a policy of insurance issued before the accident.
i. THAT I procured the said insurance in good faith with the legitimate
expectation that the insurer would indemnify me against any third-party
liability arising from the use of the insured motor vehicle.
j. THAT before the decree could be satisfied, Invesco Assurance Company
Limited was placed under liquidation and consequently ceased settling
claims in the ordinary course of business.
k. THAT my inability to immediately satisfy the decree has arisen solely
because the insurer responsible for indemnifying me is under liquidation
and not because I have deliberately refused or neglected to honour the
decree.
l. THAT I brought the foregoing facts to the attention of the trial Court.
However, the learned trial magistrate failed to properly consider the legal
effect of the insurer's liquidation in determining the Notice to Show Cause.
m. THAT I am advised by my advocates on record, which advice I verily believe
to be true, that the intended appeal raises serious and arguable questions
of law and fact, including whether the learned trial magistrate properly
exercised his discretion under Section 38 of the Civil Procedure Act and
whether the execution proceedings are sustainable in light of Section
67C(11) of the Insurance Act, considering that the insurer was under
liquidation.
n. THAT I am further advised by my said advocates, which advice I verily
believe to be true, that the legal issues raised in the intended appeal were
considered by the High Court in Rono & another v Wanyama (Civil Appeal
E054 of 2024) KEHC 18212 (KLR), wherein the Court considered the effect
of Section 67C(11) of the Insurance Act on execution proceedings against an
insured whose insurer is under liquidation.
o. THAT I have prepared a Memorandum of Appeal setting out the grounds
upon which I challenge the impugned ruling. Annexed hereto and marked
"JN-2" is a copy of the Memorandum of Appeal.
p. THAT unless this Honourable Court grants leave to appeal and stays
execution, the Respondent is likely to commence execution proceedings
against me before my appeal is heard and determined.
q. THAT if execution proceeds, I stand to suffer substantial loss and the
intended appeal will be rendered nugatory.
r. THAT the intended appeal has overwhelming chances of success and raises
substantial issues deserving determination by this Honourable Court.
s. THAT the Respondent will not suffer any prejudice incapable of being
compensated by an award of costs if the orders sought are granted.
t. THAT this Application has been brought without unreasonable delay and in
good faith.
u. THAT it is in the interests of justice, fairness and the overriding objective of
the Court that the orders sought be granted.
4. In response to the application is the replying affidavit of Brown Ajenga Lomosi
who avers as follows:
a. THAT I am the Respondent/Plaintiff in this matter, hence competent to
swear this Affidavit.
b. THAT the contents of the Appellant’s Notice of motion dated 11th June 2026
and have been read out and explained to me by my advocate on record and
I wish to reply as follows:
c. THAT I have read and understood the Notice of Motion dated 11th June 2026
together with the Supporting Affidavit sworn by the Appellant in support
thereof and I wish to respond thereto.
d. THAT save where expressly admitted herein, I deny each and every
allegation contained in the Supporting Affidavit as if the same were set out
herein seriatim and traversed.
e. THAT my advocate has advised me and which advice I believe to be true
that the Application is misconceived, devoid of merit, an abuse of the process
of this Honourable Court and does not satisfy the legal threshold for the
grant of the orders sought as the Appellant has failed to demonstrate
satisfactorily that he stands to suffer substantial loss should execution
proceed.
f. THAT I also wish to state that this matter concerns execution for a money
decree and my advocate has advised me and which advice I believe to be
true that it has been restated in several judicial pronouncements that Courts
should not be quick to grant orders of stay of execution of money decrees.
g. THAT I also wish to state that the Appellant has engaged in unending tactics
to frustrate the execution of the decree as stated in my affidavit dated ….
which I filed in the primary suit and annexed the relevant evidence.
h. THAT the contents of paragraph 6 are denied for being untrue. The Applicant
was all along represented by the same advocate who has filed this
Application. The documents in the primary case including the Ruling were
available on the judiciary CTS and the explanation that the Applicant was
looking for copies is not plausible
i. THAT the contents of paragraph 7 are not true and are denied for the reason
that the liquidation of Invesco Assurance Company are not relevant to this
suit as the Applicant never referred the primary suit to the said company for
representation nor was there any evidence that the company was involved
in the matter
j. THAT the contents of paragraphs 8 and 9 are not true as no such policy was
ever availed in the primary suit. Even if the Applicant held such a policy, he
did not derive any benefit from it as the matter case was never referred to
the insurance company. Nothing would have been easier for the Applicant
than to annex the evidence of such insurance policy or communication
between him and the said company.
k. THAT the contents of paragraph 10 and 11 are not true and are denied for
the reason the Applicant never involved the insurance company nor did he
submit any claim to Policyholders Compensation Fund are required and
within the time that was required in the Notice. No evidence has been
availed by the Applicant to prove that indeed he submitted the claim.
(annexed is the Notice marked BA 2 & 3)
l. THAT the contents of paragraph 12 are not true and are denied as the trial
magistrate correctly analysed all the issues and the relevant law before
arriving at the Ruling which allows no room for appeal
m. THAT in response to paragraph 13 and on the advice of my advocate which
I believe is true, I state that the Ruling as delivered was valid and based on
the discretion of the trial magistrate which was exercised judiciously and
the sections of the law as cited by the Applicant do not avail the Applicant
any remedy
n. THAT in response to paragraphs 14, my advocate had advised me and
which advice I believe to be true that there is nothing in the primary suit and
even in this Application to demonstrate that the Applicant is protected by the
principles in the Rono case (as cited by the Applicant or Section 67C(11) of
the Insurance Act as the Appellant never involved the said company in the
proceedings.
o. THAT in response to paragraph 15, my advocate has advised me and which
advice I believe to be true that the appeal as presented is devoid of any
triable issues and the Applicant is only bent on making me to enjoy the fruits
of my judgement thereby making it a paper judgement.
p. THAT in response to paragraph 16 and 17 and on the advice of my advocate
and which I believe to be true, I state that Courts have consistently held that
commencement of execution in not a reason for grant of stay of execution.
q. THAT in response to paragraph 18 and on the advice of my advocate which
I believe to be true, Courts have consistently stated that substantial loss
must be demonstrated but in this case the Applicant has even attempted to
demonstrate such loss
r. THAT the contents of paragraph 19 are not true and are denied. To the
contrary, it is me who continues to suffer prejudice as I have been denied
the fruits of my judgement from 19th August 2022 when the judgement was
delivered. It is now 47 months from the time the judgement was delivered
and I have suffered and continue to suffer the fruits of my judgement due to
the Applicants refusal to comply. Instead, he continues to file numerous
applications in order to avoid settling the judgement.
s. THAT the contents of paragraph 20 and 21 are not true and are denied
t. THAT despite seeking the equitable remedy of stay of execution, the
Appellant has neither deposited any portion of the decretal sum nor offered
any security whatsoever for the due performance of the decree as required
by law.
u. THAT the deliberate to offer security demonstrates that the present
Application has not met the mandatory conditions governing the grant of an
order of stay pending Appeal.
v. THAT I am advised by my advocates on record, which advice I verily believe
to be true, that the existence of an intended appeal or the Appellant's
dissatisfaction with the decision of the trial Court does not, of itself, entitle
the Appellant to an order of stay of execution.
w. THAT should this Court be minded to grant the order of stay, the same
should be conditional upon the Appellant depositing the entire decretal sum
KSHS 389,410.00 together with the Auctioneers costs of Kshs 191,127.06
should be deposited in a joint interest earning account in the names of both
advocates within a period of Seven days from the date of the order, in
default of which the stay should automatically lapse and execution to
proceed against the Appellant's property (attached is the Auctioneer’s fee
marked BA 4)
x. THAT I swear this Affidavit in opposition to the Notice of Motion and pray
that the same be dismissed with costs to the Respondent.
5. This appeal was set to be canvased by way of written submissions but on
checking on the online portal it was only the Respondent who had complied
by filing written submissions dated 17th of July 2026. In the body of the
submissions shared with the Court learned Counsel tackled three
predominant issues namely;
a. Whether the Applicant has demonstrated substantial loss
b. Whether the Applicant has offered sufficient security for the decree
c. Whether the Applicant’s personal liability is extinguished upon liquidation
of the insurer.
6. It was learned Counsel contention that grounded on Order 42 Rule 6(2)(a) of
the CPR and illuminating principles Kenya Shell Ltd v Benjamin Karuga
Kibiru & Another [1986] eKLR and Kirimi & Another v Gichangi (Civil
Appeal E079 of 2025) [2025] KEHC, the condition precedents outlined in
the Rule cited above have not been discharged by the Applicant and the
motion on record should be dismissed.
7. In the instant case the Applicant is aggrieved with the decision of the Court
below as demonstrated by the grounds in the memorandum of appeal which
reads as follows:
a. The learned trial magistrate erred in law and fact in allowing the Notice to
Show Cause.
b. The learned trial magistrate erred in law by failing to properly consider the
effect of the liquidation of Invesco Assurance Company Limited on the
Appellants' liability.
c. The learned trial magistrate erred in law by failing to apply Section 67C(11)
of the Insurance Act.
d. The learned trial magistrate erred in law and fact by finding that the
Appellants had failed to show sufficient cause against execution.
e. The learned trial magistrate erred in law by improperly exercising his
discretion under Section 38 of the Civil Procedure Act.
f. The learned trial magistrate failed to properly evaluate the evidence and
submissions before the Court.
g. The ruling was against the law and the evidence.
h. WHEREFORE, the Appellants pray that this Honourable Court:
a. Allows the appeal.
b. Sets aside the Ruling and Orders delivered on 23rd June 2026.
c. Dismisses the Notice to Show Cause dated 1st April 2025.
d. Awards the costs of this appeal and of the proceedings before the trial
Court to the Appellants.
8. It is now settled law as demonstrated by the Court in the case of Stephen
Wanjohi v Central Glass Industries Ltd Civil Case No. 6726 of 1991 in
which it was held that:
a. For the Court to order a stay of execution there must be:
(i) Sufficient cause;
(ii) Substantial loss;
(iii) No unreasonable delay; and
(iv) Security.
b. The grant of stay is discretionary and the High Court is also a Court of
equity.
c. It is not just to deny a successful party the benefit of judgment because he
is poor. The Court does not make a practice of depriving a successful
litigant of the fruits of his litigation and locking up funds to which, prima
facie he is entitled pending appeal. (See also George Oraro v Kenya
Television Network Civil Case 151 of 1992 and Vishram Ravji Halai
v Thornton & Turpin [1990] KLR 365)
9. It is also the expectation of the law on stay of execution pending appeal that
the aim of the Court is to make sure, in an even handed manner that the
appeal would not be prejudiced and that the decretal sum would be available
if required. The Respondent is not entitled, for instance, to make life difficult
for the Applicant, so as to tempt him into settling the appeal. The process of
giving security is one, which arises constantly. So long as the opposite party
can be adequately protected, it is right and proper that security should be given
in a way, which is least disadvantageous to the party giving the security. It
may take many forms. Bank guarantee and payment into Court are but two of
them. So long as it is adequate, then the form of it is a matter, which is
immaterial. In an application for stay pending appeal the Court is faced with a
situation where judgment has been given. It is subject to appeal. It maybe
affirmed or it may be set aside. The Court is concerned with preserving the
rights of both parties pending that appeal. It is not the function of the Court to
disadvantage the defendant while giving no legitimate advantage to the
plaintiffs. It is the duty of the Court to hold the ring even-handedly without
prejudicing the issue pending the appeal. For that purpose, it matters not
whether the plaintiffs are secured in one way rather than another. It would be
easier for the defendants or if for any reason they would prefer to provide
security by a bank guarantee rather than cash. There is absolutely no reason
in principle why they should not do so. See Rosengrens Ltd v Safe Deposit
CIVIL APPEAL NO. E027 OF 2026 11
Centres Ltd [1984] 3 All ER 198 and Nduhiu Gitahi v Warungongo [1988]
KLR 621).
10. What can be appreciated from the above authorities is that the core
principles established by Kenyan’s Court on stay of execution pending appeal
include the following inter alia:
a. A stay of execution pending an appeal is not automatic even within the
purposive interpretation of the constitution imperative on the right of an
appeal.
b. There may be justification under Art 24 of the Constitution to have that
right limited as indicative of certain provisions in the statute that an
appeal can only be lodged to the superior Court based on a point of law
or in certain cases leave has got to be applied for although now in
succession matters the apex Court has clarified that position that leave
to appeal is not a necessity.
c. The "Nugatoriness" Test: The Applicant must prove that without a stay,
the eventual success of the appeal will be rendered meaningless (e.g., the
subject matter of the dispute will be destroyed, or the winning party will
be unable to refund the judgment sum).
d. Fruits of Litigation: Courts adhere to the established common law
principle (rooted in English cases like Monk v Bartram) that a successful
litigant should not be easily deprived of the "fruits" of their judgment
e. Special Circumstances: The fact that an appellant believes they have a
reasonable chance of success does not, on its own, constitute a special
circumstance.
f. Security for the Judgment: The Court of Appeal frequently attaches
conditions to the stay, such as requiring the Applicant to deposit the
judgment sum in a joint, interest-bearing escrow account managed by
solicitors to protect the Respondent's interests.
11. I have reviewed the notice of motion, the affidavit evidence in support
together with the replying affidavit by the Respondent and further the
submission on the legal typology by Learned Counsel for the Respondent and
I am of the consider view that there is merit to grant stay of execution of the
ruling of the Court below dated 23rd day of June 2026 on condition that
decretal sum of Kshs 389,410/- be deposited with the Deputy Registrar of the
High Court within 45 days from today’s ruling. That further for purpose of
expediency the appellants shall file the record of appeal within 21 days from
today’s ruling and the appeal shall be deemed to have been admitted for
hearing and the procedural protocols of having it canvassed by way of written
submission shall take effect after expiry of 21 days ordered above by this
Court. That thereafter each legal Counsel on record seized of instructions to
represent the respective parties to this appeal shall simultaneously filed
his/her submissions on the predominant issues raised on the memorandum
of appeal and toward that end reasonably so a judgement has been set on
delivery on 16th September 2026. For avoidance of doubt the orders on stay
of execution shall lapsed in the event the appellants default in depositing the
decretal sum before the Deputy Registrar of the High Court within the
scheduled period of 21 days. That in terms of compliance this matter shall be
mentioned before the Deputy Registrar of the High Court 17th August 2026.
It is so ordered.
DATED, SIGNED AND DELIVERED THIS 20TH DAY OF JULY 2026.