1. The Hon. Viola Muthoni, then of the Small Claims Court, Mombasa, found in favour of the respondent. In her judgment, the learned magistrate held that the appellant owed the respondent Kes. 210,000, together with costs. Being aggrieved, the appellant filed a memorandum of appeal dated 30th July 2025.
2. The appellant also filed a Notice of Motion dated 30th July 2025 seeking a stay of execution of the judgment pending hearing and determination of the appeal.
3. The application is opposed. The respondent filed a preliminary objection dated 19th August 2025, contending that this court's jurisdiction had not been properly invoked. The respondent thus sought to have the application struck out with costs to the respondent.
4. The court directed that the parties file written submissions. Only the appellant filed written submissions. The said submissions are dated 30th October 2025. I have considered the same.
5. Under Order 42 Rule 6(2), an applicant seeking a stay pending appeal must show that:
i. He will suffer substantial loss unless a stay is granted;
ii. The application was filed with undue delay; and
iii. Provide security for the due performance of the order or decree that may ultimately be binding.
6. Has the applicant satisfied the above test? Whereas it is true that the application was filed without undue delay, it would appear to me that the Applicant hasn't shown what substantial loss he would suffer unless the stay orders was granted. Substantial loss is what stay orders are meant to prevent.
7. What amounts to substantial loss was defined in the case of Tropical Supplies Limited and Others v International Credit Bank Ltd [2004] 2 EA 331 by Ogolla J. as:
“Substantial loss does not represent any particular mathematical formula. Rather, it is a qualitative concept. It refers to any loss, great or small, that is of real worth or value as distinguished from a loss without value or a loss that is merely nominal.”
8. In the case of Kenya Shell Limited v Benjamin Kibiru Karugu K and another [1986]eKLR, the Court of Appeal stated that:
“It is usually a good rule to see if Order XLI Rule 4 of the Civil Procedure Rules can be substantiated. If there is no evidence of substantial loss to the applicant, it would be a rare case when an appeal would be rendered nugatory by some other event. Substantial loss in its various forms, is the corner stone of both jurisdiction for granting stay. That is what has to be prevented. Therefore, without this evidence, it is difficult to see why the respondents should be kept out of their money.”
9. The Respondent has what appears to me to be a regular judgment. She should not be denied the fruits of a judgment without justification.
10. I note, in any event, that in the application, the appellant did not offer any security for the due performance of the decree that may ultimately be binding on him. Thus, it is my view, and I find and hold that the conditions precedent to the grant of stay of execution pending appeal have not been met. In the circumstances, I dismiss the Notice of Motion dated 30th July 2025.
11. The Respondent shall have the costs of the application.
12. It is so ordered.
Dated and signed in Nairobi this 6th day of May 2026. Delivered virtually through Microsoft TEAMS.
2. The appellant also filed a Notice of Motion dated 30th July 2025 seeking a stay of execution of the judgment pending hearing and determination of the appeal.
3. The application is opposed. The respondent filed a preliminary objection dated 19th August 2025, contending that this court's jurisdiction had not been properly invoked. The respondent thus sought to have the application struck out with costs to the respondent.
4. The court directed that the parties file written submissions. Only the appellant filed written submissions. The said submissions are dated 30th October 2025. I have considered the same.
5. Under Order 42 Rule 6(2), an applicant seeking a stay pending appeal must show that:
i. He will suffer substantial loss unless a stay is granted;
ii. The application was filed with undue delay; and
iii. Provide security for the due performance of the order or decree that may ultimately be binding.
6. Has the applicant satisfied the above test? Whereas it is true that the application was filed without undue delay, it would appear to me that the Applicant hasn't shown what substantial loss he would suffer unless the stay orders was granted. Substantial loss is what stay orders are meant to prevent.
7. What amounts to substantial loss was defined in the case of Tropical Supplies Limited and Others v International Credit Bank Ltd [2004] 2 EA 331 by Ogolla J. as:
“Substantial loss does not represent any particular mathematical formula. Rather, it is a qualitative concept. It refers to any loss, great or small, that is of real worth or value as distinguished from a loss without value or a loss that is merely nominal.”
8. In the case of Kenya Shell Limited v Benjamin Kibiru Karugu K and another [1986]eKLR, the Court of Appeal stated that:
“It is usually a good rule to see if Order XLI Rule 4 of the Civil Procedure Rules can be substantiated. If there is no evidence of substantial loss to the applicant, it would be a rare case when an appeal would be rendered nugatory by some other event. Substantial loss in its various forms, is the corner stone of both jurisdiction for granting stay. That is what has to be prevented. Therefore, without this evidence, it is difficult to see why the respondents should be kept out of their money.”
9. The Respondent has what appears to me to be a regular judgment. She should not be denied the fruits of a judgment without justification.
10. I note, in any event, that in the application, the appellant did not offer any security for the due performance of the decree that may ultimately be binding on him. Thus, it is my view, and I find and hold that the conditions precedent to the grant of stay of execution pending appeal have not been met. In the circumstances, I dismiss the Notice of Motion dated 30th July 2025.
11. The Respondent shall have the costs of the application.
12. It is so ordered.
Dated and signed in Nairobi this 6th day of May 2026. Delivered virtually through Microsoft TEAMS.