1. Before this Court is a Notice of Motion dated 15th May 2025, brought under Order 42 Rule 6 of the Civil Procedure Rules, 2010 and Section 3A of the Civil Procedure Act, wherein the Appellant seeks orders for:
1) A stay of execution of the judgment delivered in Milimani SCCCOMM E2716 of 2024 on 07th November 2024, pending the hearing and determination of the appeal
2) Costs of the application.
2. The application is supported by an affidavit sworn by the Appellant on even date and is premised on the following grounds:
1) That the Appellant is dissatisfied with the judgment;
2) That the appeal has high chances of success;
3) That warrants of attachment were issued on 29th April 2025, and proclamation carried out on 15th May 2025;
4) That the execution process will occasion substantial loss;
5) That the application has been made without unreasonable delay;
6) That the Appellant is willing to furnish security for the due performance of the decree.
3. The Respondent opposed the application by way of an affidavit sworn on 04th June 2025 by Christopher Chengecha, advocate. The grounds for opposition include that the Appellant has been aware of the impugned judgment since it was delivered over six months ago, on 07th November 2024 and has not provided any explanation for the delay. It is further contended that the Appellant only rushed to court after the commencement of execution proceedings.
4. The principles for stay of execution pending appeal are laid down under Order 42 Rule 6(2) of the Civil Procedure Rules, which provides:
“No order for stay of execution shall be made under subrule (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.”
5. Similarly, in Leo Sila Mutiso v Rose Hellen Wangari Mwangi [1999] 2 EA 231 , the Court of Appeal held:
“It is now settled that the decision whether to extend time... is essentially discretionary... In general, the matters which this court takes into account... are, first, the length of the delay, secondly, the reasons for the delay, thirdly (possibly) the chances of the appeal succeeding... and fourthly, the degree of prejudice to the respondent if the application is granted.”
6. From the foregoing, the applicant must satisfy three key conditions:
1) Timeliness of the application;
2) Likelihood of substantial loss;
3) Security for the due performance of the decree.
(a) Whether the application was made without unreasonable delay
7. The judgment was delivered on 07th November 2024, but the instant application was brought on 15th May 2025, over six months later, and after warrants of execution had been issued and a proclamation effected. The Appellant has offered no explanation whatsoever for this delay.
8. In Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission & 7 Others [2014] eKLR, the Supreme Court of Kenya underscored the equitable nature of such applications:
“Extension of time being a creature of equity, one can only enjoy it if he acts equitably: he who seeks equity must do equity. Hence, one has to lay a basis that he was not at fault so as to let time lapse
9. The same rationale applies with equal force to applications for discretionary reliefs such as stay of execution. No basis has been laid for the delay, and none of the necessary explanations are offered.
10. On this first limb, the Appellant has failed to justify the delay. The Court cannot exercise its discretion in favour of a litigant who acts only after execution has commenced, and without any attempt to explain the lapse of time.
(b) Whether the Applicant has demonstrated that substantial loss may result if stay is not granted
11. The Appellant merely states that execution will result in substantial loss. However, no particulars of that loss are provided, nor is there any evidence that the Respondent is incapable of repaying the decretal sum should the appeal succeed.
12. The law is clear that the burden lies with the applicant to demonstrate substantial loss, not merely assert it. In Kenya Shell Ltd v Benjamin Karuga Kibiru & Another [1986] KLR 410, the Court of Appeal stated:
“It is not enough merely to state that the sum of money is substantial and the respondent is not capable of repaying the same. The applicant must show substantial loss.”
13. Furthermore, in James Wangalwa & Another v Agnes Naliaka Cheseto [2012] eKLR, the Court held:
“The fact that the process of execution has been put in motion, or is likely to be put in motion, does not in itself amount to substantial loss. Even when execution has been levied... substantial loss must be demonstrated.”
14. Flowing from the foregoing, I find that the Appellant has failed to satisfy the requirement to demonstrate substantial loss.
(c) Whether the Applicant has offered security
15. In National Industrial Credit Bank Ltd v Aquinas Francis Wasike & Another [2006] eKLR, the Court of Appeal stated:
“If stay is to be granted, the applicant must offer real and acceptable security, not merely express a willingness to do so.”
16. Even though the Appellant has expressed a general willingness to furnish security for the due performance of the decree, no concrete proposal has been made as to the form, nature, or quantum of such security. It is well established that a mere statement of willingness, unsupported by tangible particulars, does not meet the threshold required under Order 42 Rule 6(2)(b). Security must be both specific and adequate, and it is incumbent upon the applicant to demonstrate what is being offered to safeguard the respondent’s interests.
17. In the absence of any substantive proposal, this limb of the application equally fails to satisfy the legal standard. The application is therefore inadequate and non-compliant on this essential requirement.
Disposition
18. The power to grant a stay of execution pending appeal is a discretionary and equitable remedy, not one that is available as of right. For the Court to exercise this discretion favourably, the applicant must satisfy the three mandatory conditions under Order 42 Rule 6(2).
19. In the present case, the application was brought after inordinate delay, with no explanation; the Appellant has neither demonstrated substantial loss that would result if stay is not granted nor proposed or tendered any form of security. In addition, the Appellant only came to Court after execution had commenced, a factor that a factor that casts doubt on his bona fides.
20. From the foregoing analysis, I find that the Notice of Motion dated 15th May 2025 is unmeritorious and it is dismissed with costs to the Respondent.
21. Mention before the Deputy Registrar on 04th August 2025 to confirm filing of the record of appeal.
Appearances
Court Assistant - Ubah
For Applicant - Mr. Nyairo of E.K.Njagi & Co. Advocates
For Respondent - Mr. Chengecha for Wangai Nyuthe & Co. Advocates
1) A stay of execution of the judgment delivered in Milimani SCCCOMM E2716 of 2024 on 07th November 2024, pending the hearing and determination of the appeal
2) Costs of the application.
2. The application is supported by an affidavit sworn by the Appellant on even date and is premised on the following grounds:
1) That the Appellant is dissatisfied with the judgment;
2) That the appeal has high chances of success;
3) That warrants of attachment were issued on 29th April 2025, and proclamation carried out on 15th May 2025;
4) That the execution process will occasion substantial loss;
5) That the application has been made without unreasonable delay;
6) That the Appellant is willing to furnish security for the due performance of the decree.
3. The Respondent opposed the application by way of an affidavit sworn on 04th June 2025 by Christopher Chengecha, advocate. The grounds for opposition include that the Appellant has been aware of the impugned judgment since it was delivered over six months ago, on 07th November 2024 and has not provided any explanation for the delay. It is further contended that the Appellant only rushed to court after the commencement of execution proceedings.
4. The principles for stay of execution pending appeal are laid down under Order 42 Rule 6(2) of the Civil Procedure Rules, which provides:
“No order for stay of execution shall be made under subrule (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.”
5. Similarly, in Leo Sila Mutiso v Rose Hellen Wangari Mwangi [1999] 2 EA 231 , the Court of Appeal held:
“It is now settled that the decision whether to extend time... is essentially discretionary... In general, the matters which this court takes into account... are, first, the length of the delay, secondly, the reasons for the delay, thirdly (possibly) the chances of the appeal succeeding... and fourthly, the degree of prejudice to the respondent if the application is granted.”
6. From the foregoing, the applicant must satisfy three key conditions:
1) Timeliness of the application;
2) Likelihood of substantial loss;
3) Security for the due performance of the decree.
(a) Whether the application was made without unreasonable delay
7. The judgment was delivered on 07th November 2024, but the instant application was brought on 15th May 2025, over six months later, and after warrants of execution had been issued and a proclamation effected. The Appellant has offered no explanation whatsoever for this delay.
8. In Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission & 7 Others [2014] eKLR, the Supreme Court of Kenya underscored the equitable nature of such applications:
“Extension of time being a creature of equity, one can only enjoy it if he acts equitably: he who seeks equity must do equity. Hence, one has to lay a basis that he was not at fault so as to let time lapse
9. The same rationale applies with equal force to applications for discretionary reliefs such as stay of execution. No basis has been laid for the delay, and none of the necessary explanations are offered.
10. On this first limb, the Appellant has failed to justify the delay. The Court cannot exercise its discretion in favour of a litigant who acts only after execution has commenced, and without any attempt to explain the lapse of time.
(b) Whether the Applicant has demonstrated that substantial loss may result if stay is not granted
11. The Appellant merely states that execution will result in substantial loss. However, no particulars of that loss are provided, nor is there any evidence that the Respondent is incapable of repaying the decretal sum should the appeal succeed.
12. The law is clear that the burden lies with the applicant to demonstrate substantial loss, not merely assert it. In Kenya Shell Ltd v Benjamin Karuga Kibiru & Another [1986] KLR 410, the Court of Appeal stated:
“It is not enough merely to state that the sum of money is substantial and the respondent is not capable of repaying the same. The applicant must show substantial loss.”
13. Furthermore, in James Wangalwa & Another v Agnes Naliaka Cheseto [2012] eKLR, the Court held:
“The fact that the process of execution has been put in motion, or is likely to be put in motion, does not in itself amount to substantial loss. Even when execution has been levied... substantial loss must be demonstrated.”
14. Flowing from the foregoing, I find that the Appellant has failed to satisfy the requirement to demonstrate substantial loss.
(c) Whether the Applicant has offered security
15. In National Industrial Credit Bank Ltd v Aquinas Francis Wasike & Another [2006] eKLR, the Court of Appeal stated:
“If stay is to be granted, the applicant must offer real and acceptable security, not merely express a willingness to do so.”
16. Even though the Appellant has expressed a general willingness to furnish security for the due performance of the decree, no concrete proposal has been made as to the form, nature, or quantum of such security. It is well established that a mere statement of willingness, unsupported by tangible particulars, does not meet the threshold required under Order 42 Rule 6(2)(b). Security must be both specific and adequate, and it is incumbent upon the applicant to demonstrate what is being offered to safeguard the respondent’s interests.
17. In the absence of any substantive proposal, this limb of the application equally fails to satisfy the legal standard. The application is therefore inadequate and non-compliant on this essential requirement.
Disposition
18. The power to grant a stay of execution pending appeal is a discretionary and equitable remedy, not one that is available as of right. For the Court to exercise this discretion favourably, the applicant must satisfy the three mandatory conditions under Order 42 Rule 6(2).
19. In the present case, the application was brought after inordinate delay, with no explanation; the Appellant has neither demonstrated substantial loss that would result if stay is not granted nor proposed or tendered any form of security. In addition, the Appellant only came to Court after execution had commenced, a factor that a factor that casts doubt on his bona fides.
20. From the foregoing analysis, I find that the Notice of Motion dated 15th May 2025 is unmeritorious and it is dismissed with costs to the Respondent.
21. Mention before the Deputy Registrar on 04th August 2025 to confirm filing of the record of appeal.
Appearances
Court Assistant - Ubah
For Applicant - Mr. Nyairo of E.K.Njagi & Co. Advocates
For Respondent - Mr. Chengecha for Wangai Nyuthe & Co. Advocates