Introduction
1. Before this Court is a Chamber Summons and Notice of Motion both dated 13th August 2025, filed by the Appellant/Applicant, seeking admission of the appeal and the substantive application for hearing during the court vacation, certification of urgency, interim and substantive orders of stay of execution of the judgment and decree in Homabay CMCC No. E003 of 2022, and stay of taxation of the Respondent’s bill of costs pending hearing and determination of the appeal.
2. The application is expressed to be brought under Sections 3A and 75 of the Civil Procedure Act, Order 42 Rule 6 of the Civil Procedure Rules, and the High Court (Practice and Procedure) Vacation Rules. It is supported by the affidavit of Everline Ogato, Advocate for the Appellant, sworn on 13th August 2025, and written submissions filed on behalf of the Appellant.
3. The Respondent opposed the application through a replying and supplementary affidavits sworn by Wycliff Abuya Odiwuor and written submissions filed by M/s Everlyne Kuke & Co. Advocates.
Background
4. The background to the application is not in dispute. Judgment in Homabay CMCC No. E003 of 2022 was delivered on 31st July 2025 in favour of the Respondent, awarding general damages in the sum of Kshs. 300,000/= together with costs and interest.
5. Aggrieved by the said judgment, the Appellant lodged the present appeal and contemporaneously filed an application seeking stay of execution pending the hearing and determination of both the application and the appeal. Issues for Determination
6. Having considered the pleadings, affidavits and submissions on record, the Court is of the view that the following issues arise for determination:
a) Whether there is a basis for stay of taxation of the Respondent’s bill of costs; and
b) What orders ought to be made as to costs.
The principles governing stay of execution pending appeal are well settled and are anchored in Order 42 Rule 6(2) of the Civil Procedure Rules. An applicant must demonstrate that:
a) He stands to suffer substantial loss unless the stay is granted; b) The application has been made without unreasonable delay; and c) Such security as the court orders for the due performance of the decree has been offered.
11. On whether the appeal is arguable, this Court reiterates that at this stage it is not required to determine the merits of the appeal. It suffices if the applicant demonstrates that the appeal is not frivolous. The Memorandum of Appeal on record challenges, inter alia, the quantum of damages awarded. In the Court’s view, the appeal raises arguable issues deserving consideration on appeal.
12. On substantial loss, the Appellant contends that the Respondent’s means are unknown and that recovery of the decretal sum may not be possible should the appeal succeed. While the Respondent has denied being a person of straw, he has not placed before the Court evidence of his financial means. As held in several decisions of the superior courts, where doubt exists as to the respondent’s ability to refund the decretal sum, substantial loss is established.
13. As regards delay, judgment was delivered on 31st July 2025 and the application was filed on or about 13th August 2025. This period cannot be said to be inordinate or unreasonable. The Court is satisfied that the Applicant acted with reasonable time .
14. On security, the Applicant has expressed willingness to deposit the decretal sum in a joint interest-earning account. The Respondent, while opposing an unconditional stay, has proposed a conditional stay involving partial release of the decretal sum and deposit of the balance in a joint account.
15. The purpose of security under Order 42 Rule 6 is to balance the competing rights of the parties: the Appellant’s right to pursue an appeal without the risk of it being rendered nugatory, and the Respondent’s right to enjoy the fruits of a lawful judgment.
16. In the circumstances of this case, and bearing in mind that the appeal is on quantum only, the Court finds merit in granting a conditional stay that reasonably safeguards both parties’ interests.
Stay of Taxation of Costs
17. The Applicant has also sought orders staying the taxation and/or assessment of the Respondent’s bill of costs pending the hearing and determination of the appeal.
18. Taxation of costs is a distinct process governed by the Advocates (Remuneration) Order. It does not, of itself, amount to execution of the decree. The Applicant has not demonstrated how the mere taxation of costs would render the appeal nugatory or occasion irreparable prejudice.
19. The authorities cited by the Respondent correctly state the position that courts are generally reluctant to stay taxation absent exceptional circumstances. None have been demonstrated in the present application.
20. Consequently, the Court finds no basis for staying the taxation of the Respondent’s bill of costs.
Disposition
21. In the result, the Court makes the following orders:
b) There shall be a stay of execution of the judgment and decree in Homabay CMCC No. E003 of 2022 pending the hearing and determination of Homabay HCCA No. E040 of 2025, on the following conditions:
i. The Appellant shall, within thirty (30) days from the date hereof, deposit one half (½) of the decretal sum, being Kshs. 250,000/=, into a joint interest-earning bank account in the names of the advocates on record for the parties; and
ii. The remaining half (½) of the decretal sum, together with accrued interest, shall be released to the Respondent within 30 days from today.
c) In default of compliance with order (b)(i) above within the stipulated time, the stay of execution shall automatically lapse.
d) The prayers seeking stay of taxation and/or assessment of the Respondent’s bill of costs are declined.
e. Mention of 13.3.26 before deputy registrar for compliance
e) Costs of the application shall abide the outcome of the appeal.
22. It is so ordered.
T.A ODERA
JUDGE
13.2.26
23. DELIVERED VIRTUALLY VIA TEAMS PLATFORM ON THIS 11TH DAY OF FEBRUARY 2026 ME ONGORO HOLDING BRIEF FOR MISS KUKE FOR THE RESPONDENT . APPELLANT & CA -OGENDO . N/A FOR THE RESPONDENT
1. Before this Court is a Chamber Summons and Notice of Motion both dated 13th August 2025, filed by the Appellant/Applicant, seeking admission of the appeal and the substantive application for hearing during the court vacation, certification of urgency, interim and substantive orders of stay of execution of the judgment and decree in Homabay CMCC No. E003 of 2022, and stay of taxation of the Respondent’s bill of costs pending hearing and determination of the appeal.
2. The application is expressed to be brought under Sections 3A and 75 of the Civil Procedure Act, Order 42 Rule 6 of the Civil Procedure Rules, and the High Court (Practice and Procedure) Vacation Rules. It is supported by the affidavit of Everline Ogato, Advocate for the Appellant, sworn on 13th August 2025, and written submissions filed on behalf of the Appellant.
3. The Respondent opposed the application through a replying and supplementary affidavits sworn by Wycliff Abuya Odiwuor and written submissions filed by M/s Everlyne Kuke & Co. Advocates.
Background
4. The background to the application is not in dispute. Judgment in Homabay CMCC No. E003 of 2022 was delivered on 31st July 2025 in favour of the Respondent, awarding general damages in the sum of Kshs. 300,000/= together with costs and interest.
5. Aggrieved by the said judgment, the Appellant lodged the present appeal and contemporaneously filed an application seeking stay of execution pending the hearing and determination of both the application and the appeal. Issues for Determination
6. Having considered the pleadings, affidavits and submissions on record, the Court is of the view that the following issues arise for determination:
a) Whether there is a basis for stay of taxation of the Respondent’s bill of costs; and
b) What orders ought to be made as to costs.
The principles governing stay of execution pending appeal are well settled and are anchored in Order 42 Rule 6(2) of the Civil Procedure Rules. An applicant must demonstrate that:
a) He stands to suffer substantial loss unless the stay is granted; b) The application has been made without unreasonable delay; and c) Such security as the court orders for the due performance of the decree has been offered.
11. On whether the appeal is arguable, this Court reiterates that at this stage it is not required to determine the merits of the appeal. It suffices if the applicant demonstrates that the appeal is not frivolous. The Memorandum of Appeal on record challenges, inter alia, the quantum of damages awarded. In the Court’s view, the appeal raises arguable issues deserving consideration on appeal.
12. On substantial loss, the Appellant contends that the Respondent’s means are unknown and that recovery of the decretal sum may not be possible should the appeal succeed. While the Respondent has denied being a person of straw, he has not placed before the Court evidence of his financial means. As held in several decisions of the superior courts, where doubt exists as to the respondent’s ability to refund the decretal sum, substantial loss is established.
13. As regards delay, judgment was delivered on 31st July 2025 and the application was filed on or about 13th August 2025. This period cannot be said to be inordinate or unreasonable. The Court is satisfied that the Applicant acted with reasonable time .
14. On security, the Applicant has expressed willingness to deposit the decretal sum in a joint interest-earning account. The Respondent, while opposing an unconditional stay, has proposed a conditional stay involving partial release of the decretal sum and deposit of the balance in a joint account.
15. The purpose of security under Order 42 Rule 6 is to balance the competing rights of the parties: the Appellant’s right to pursue an appeal without the risk of it being rendered nugatory, and the Respondent’s right to enjoy the fruits of a lawful judgment.
16. In the circumstances of this case, and bearing in mind that the appeal is on quantum only, the Court finds merit in granting a conditional stay that reasonably safeguards both parties’ interests.
Stay of Taxation of Costs
17. The Applicant has also sought orders staying the taxation and/or assessment of the Respondent’s bill of costs pending the hearing and determination of the appeal.
18. Taxation of costs is a distinct process governed by the Advocates (Remuneration) Order. It does not, of itself, amount to execution of the decree. The Applicant has not demonstrated how the mere taxation of costs would render the appeal nugatory or occasion irreparable prejudice.
19. The authorities cited by the Respondent correctly state the position that courts are generally reluctant to stay taxation absent exceptional circumstances. None have been demonstrated in the present application.
20. Consequently, the Court finds no basis for staying the taxation of the Respondent’s bill of costs.
Disposition
21. In the result, the Court makes the following orders:
b) There shall be a stay of execution of the judgment and decree in Homabay CMCC No. E003 of 2022 pending the hearing and determination of Homabay HCCA No. E040 of 2025, on the following conditions:
i. The Appellant shall, within thirty (30) days from the date hereof, deposit one half (½) of the decretal sum, being Kshs. 250,000/=, into a joint interest-earning bank account in the names of the advocates on record for the parties; and
ii. The remaining half (½) of the decretal sum, together with accrued interest, shall be released to the Respondent within 30 days from today.
c) In default of compliance with order (b)(i) above within the stipulated time, the stay of execution shall automatically lapse.
d) The prayers seeking stay of taxation and/or assessment of the Respondent’s bill of costs are declined.
e. Mention of 13.3.26 before deputy registrar for compliance
e) Costs of the application shall abide the outcome of the appeal.
22. It is so ordered.
T.A ODERA
JUDGE
13.2.26
23. DELIVERED VIRTUALLY VIA TEAMS PLATFORM ON THIS 11TH DAY OF FEBRUARY 2026 ME ONGORO HOLDING BRIEF FOR MISS KUKE FOR THE RESPONDENT . APPELLANT & CA -OGENDO . N/A FOR THE RESPONDENT