1. The Notice of Motion dated 11th June 2026 is brought under Order 42 Rule 6 of the Civil Procedure Rules in which Kennedy Simba, the Applicant seeks an order of stay of execution of the judgment and decree issued in Keroka MCCC E277 of 2022 pending the hearing and determination of this appeal. The Applicant further prays that the costs of the application abide the outcome of the appeal and expresses his readiness to deposit the entire decretal sum as security.
2. The application is supported by the Applicant's affidavit sworn on 11th June 2026. He deposes that following the judgment delivered on 29th April 2026, a decree for KES. 2,492,150, together with costs and interest, was issued against him.
3. Aggrieved by that decision, he lodged the present appeal and contends that unless execution is stayed, the appeal will be rendered nugatory. He further expresses apprehension that recovery of the decretal sum may prove difficult if the appeal succeeds and, as security for the due performance of the decree, offers to deposit the entire decretal sum in court.
4. The Respondents oppose the application through the Replying Affidavit sworn on 24th June 2026 by Elijah Rasugu Motaroki, the 2nd Respondent, and their written submissions dated 08th July 2026. They contend that the Applicant has failed to satisfy the conditions for the grant of a stay pending appeal, maintain that they are financially capable of refunding the decretal sum should the appeal succeed, and urge the court to dismiss the application with costs.
5. The jurisdiction of this Court is founded on Order 42 Rule 6 of the Civil Procedure Rules. An applicant seeking a stay of execution must satisfy the Court that substantial loss may result unless the order is granted, that the application has been made without unreasonable delay, and that security has been furnished for the due performance of the decree. Those requirements are cumulative and none may be dispensed with.
6. The judgment sought to be appealed against was delivered on 29th April 2026, while the present application was filed on 11th June 2026. Although the Respondents contend that the application was filed after undue delay, I am satisfied that it was brought within a reasonable time.
7. The Respondents further submit that the Applicant has not demonstrated substantial loss and rely on James Wangalwa & Another v Agnes Naliaka Cheseto [2012] eKLR, where the Court held that the mere fact that execution has commenced or is imminent does not, of itself, amount to substantial loss. I respectfully agree. The Applicant must establish that execution would create a state of affairs capable of rendering the appeal nugatory.
8. The Applicant apprehends that recovery of the decretal sum may prove difficult should the appeal succeed. The Respondents have answered that concern by deposing that they are financially capable of refunding the decretal sum if required and rely on Kenya Shell Ltd v Benjamin Karuga Kibiru [1986] KLR 410, where the Court underscored that substantial loss is the cornerstone of an application for stay. In the circumstances of this case, however, the Applicant has offered to deposit the entire decretal sum in court. That proposal sufficiently secures the Respondents' interests while preserving the subject matter of the appeal.
9. On security, the Respondents cited Gianfranco Manenthi & Another v Africa Merchant Assurance Co. Ltd [2019] eKLR, which reaffirmed that security for the due performance of the decree is a mandatory condition for the grant of stay. The Applicant has unequivocally undertaken to deposit the entire decretal sum in court and, in my view, that undertaking satisfies the requirement under Order 42 Rule 6.
10. From the foregoing analysis, I am satisfied that the Applicant has met the conditions for the grant of a stay of execution. Accordingly, the Notice of Motion dated 11th June 2026 is allowed on the following terms—
1) There shall be a stay of execution of the judgment and decree in Keroka CMCC No. E277 of 2022 pending the hearing and determination of this appeal.
2) The Applicant shall deposit the entire decretal sum in court within seven (7) days from the date of this ruling.
3) In default of compliance with paragraph (b) above, the order of stay shall automatically lapse without the necessity of any further order of the Court.
4) The costs of the application shall abide the outcome of the appeal.
5) Mention on 05th October 2026 before the DR to confirm filing of the Record of Appeal and submissions
2. The application is supported by the Applicant's affidavit sworn on 11th June 2026. He deposes that following the judgment delivered on 29th April 2026, a decree for KES. 2,492,150, together with costs and interest, was issued against him.
3. Aggrieved by that decision, he lodged the present appeal and contends that unless execution is stayed, the appeal will be rendered nugatory. He further expresses apprehension that recovery of the decretal sum may prove difficult if the appeal succeeds and, as security for the due performance of the decree, offers to deposit the entire decretal sum in court.
4. The Respondents oppose the application through the Replying Affidavit sworn on 24th June 2026 by Elijah Rasugu Motaroki, the 2nd Respondent, and their written submissions dated 08th July 2026. They contend that the Applicant has failed to satisfy the conditions for the grant of a stay pending appeal, maintain that they are financially capable of refunding the decretal sum should the appeal succeed, and urge the court to dismiss the application with costs.
5. The jurisdiction of this Court is founded on Order 42 Rule 6 of the Civil Procedure Rules. An applicant seeking a stay of execution must satisfy the Court that substantial loss may result unless the order is granted, that the application has been made without unreasonable delay, and that security has been furnished for the due performance of the decree. Those requirements are cumulative and none may be dispensed with.
6. The judgment sought to be appealed against was delivered on 29th April 2026, while the present application was filed on 11th June 2026. Although the Respondents contend that the application was filed after undue delay, I am satisfied that it was brought within a reasonable time.
7. The Respondents further submit that the Applicant has not demonstrated substantial loss and rely on James Wangalwa & Another v Agnes Naliaka Cheseto [2012] eKLR, where the Court held that the mere fact that execution has commenced or is imminent does not, of itself, amount to substantial loss. I respectfully agree. The Applicant must establish that execution would create a state of affairs capable of rendering the appeal nugatory.
8. The Applicant apprehends that recovery of the decretal sum may prove difficult should the appeal succeed. The Respondents have answered that concern by deposing that they are financially capable of refunding the decretal sum if required and rely on Kenya Shell Ltd v Benjamin Karuga Kibiru [1986] KLR 410, where the Court underscored that substantial loss is the cornerstone of an application for stay. In the circumstances of this case, however, the Applicant has offered to deposit the entire decretal sum in court. That proposal sufficiently secures the Respondents' interests while preserving the subject matter of the appeal.
9. On security, the Respondents cited Gianfranco Manenthi & Another v Africa Merchant Assurance Co. Ltd [2019] eKLR, which reaffirmed that security for the due performance of the decree is a mandatory condition for the grant of stay. The Applicant has unequivocally undertaken to deposit the entire decretal sum in court and, in my view, that undertaking satisfies the requirement under Order 42 Rule 6.
10. From the foregoing analysis, I am satisfied that the Applicant has met the conditions for the grant of a stay of execution. Accordingly, the Notice of Motion dated 11th June 2026 is allowed on the following terms—
1) There shall be a stay of execution of the judgment and decree in Keroka CMCC No. E277 of 2022 pending the hearing and determination of this appeal.
2) The Applicant shall deposit the entire decretal sum in court within seven (7) days from the date of this ruling.
3) In default of compliance with paragraph (b) above, the order of stay shall automatically lapse without the necessity of any further order of the Court.
4) The costs of the application shall abide the outcome of the appeal.
5) Mention on 05th October 2026 before the DR to confirm filing of the Record of Appeal and submissions