'1.The applicant moved this court by way of a notice of motion dated 19th December 2024 where the applicant seeks the court to grant him the following orders;
a)SPENT
b) SPENT S
c)Upon hearing and determination of this Appeal, an order of stay of execution do issue the judgment / Decree of Magistrate Hon. Paul Mutai delivered on the 7th November 2024 in Nairobi CMCC 728 of 2023 and all other consequential orders.
d)An order lifting the Proclamation Notices dated 10th December 2024 setting aside warrants of attachment dated 9th December 2024 and release of any property of the appellant attached or seized by agents or auctioneers acting on behalf of the respondents in furtherance of the above said judgement.
E )Costs to the respondents
f) any other orders court may deem reasonable
2.This application is supported by the annexed supporting Affidavit of Wilson Odek in which he deponed that;
a. He is an advocate working for Britam General Insurance and that they support the appellant''s stay of execution as he believes that the appeal is arguable.
b. The respondent threatened to carry away the appellant''s tools of trade and assets and this would ground his operation and trade.
c. He said he believes that the appeal is arguable and hence the application is merited.
d. The respondent threatened to carry away the appellant''s tools of trade and assets and this would ground his operation and trade.
e. .That the Appellant is willing to comply with a fair, just and reasonable order or deposit of security as a condition of the grant of stay of orders of execution in which case the respondent will not suffer any prejudice if the order is granted.
4. The respondent filed a replying affidavit dated 29/1/2025 in which he deponed that the respondents application is an abuse of the court process and it lacks merits thus should be dismissed with costs .Also said that judgement in the instant suit was delivered in the respondents favour and the applicant was granted stay of execution of 30 days from the date of delivery of judgement which has already lapsed without the applicant taking any step whatsoever to satisfy judgement against him. Further that the applicant’s insurer was aware of the said judgement since its delivery and chose to not act on the same until the lapse of stay of execution which delay has not been explained
5. Also that the process used to acquire warrants of attachment were procedural and the court record shows that all the mandatory requirements stipulated under the Auctioneers Act and rules were followed to the latter.
6. Further that James Gachiri introduced himself as the site manager and was served with both the proclamation and warranties of attachment on 10/12/2024 and appended his signature ad copies of the proclamations are provided. He said that the applicant has not filed any application seeking leave of court to file an appeal out of time. That the applicant has not filed any memorandum of appeal as an annexure to his application thus it lacks merit and should be dismissed. The respondent told this court that the applicant had not offered any security as required by law and that he has not shown that he will suffer substantial loss if the application is denied . .
3.Appellant submitted that the Appeal is arguable and has a high chance of success since they are challenging liability and quantum . Furthermore that on 20th December 2024 the Respondent took out warrants of attachment of
by issuing proclamation through Moran Auctioneers and sought to illegally and immediately attach the Appellant’s goods and tools of trade.
The appellants had only learned about it the previous day as the watch man a the office had declined to be served and told them to serve the Appellant’s Nairobi office which deals with legal letters .In service of the Warrant is therefore unprocedural as the person served was unqualified to accept service on behalf of the Appellant..
3. Also that the respondent has no stable income and may not be able to reimburse the money if paid and the appeal succeeds.
ANALYSIS AND ISSUES FOR DETERMINATION
7.Having considered the applicant’s supporting affidavit ,his submissions and the respondent’s replying affidavit and his submissions .The issues for determination are ;
a. whether the applicant should have sought leave to file the appeal out of time,
b. Whether the application meets the threshold for grant of stay pending appeal .
c. whether applicant was properly served with the proclamation notice .
.
8. The respondent argued that the applicant should have sought the leave of court to file an appeal out of time in his replying affidavit. This is disputed . This however is a misapprehension on the part of the respondent the record indicates that judgement was delivered on 7th November 2024 and the memorandum of appeal was filed the 26th Day of November thus evidently there was no delay as it was within the 30 days timeline and thus there was no need for the applicant to seek the leave of court to file an appeal out of time.
9. On whether the applicant was properly served with the proclamation , it disputed service while the respondents that they properly served Engineer James Gichuru who introduced himself as the manager of the respondent was duly served and received them even appending his signature on the proclamation . However the applicant said it was not served that they were not served as the respondents
tried to serve but the watchman who was present declined and instructed them to take the documents to the Nairobi branch which is where the legal office is located.. I have seen the proclamation attached by the applicant and the one attached by respondent the one attached by the applicant indicates that the said James Gachiri refused to sign while the one by the respondent indicates it was signed by the said James Gachiri who signed the same.. The appellants cited Rule 12(1)b which provides that upon proclamation the auctioneers shall (b) ‘’prepare a proclamation in Sale Form 2 of the Schedule indicating the value of specific items and the condition of each item, such inventory to be signed by the owner of the goods or an adult person residing or working at the premises where the goods are attached or repossessed, and where any person refuses to sign such inventory the auctioneer shall sign a certificate to that effect; ‘’ The copy of proclamation by the applicant is not denied .and thus there are two contradictory proclamations filed herein .and no certificate of refusal was filed by the auctioneer under the said rule . I will resolve this puzzle in favor of the applicant and I find that the proclamation was irregular .
10. On whether the stay of execution should be granted Stay of Execution is provided under Order 42 Rule 6 of the Civil Procedure Rules 2010 as follows;
(1)No appeal or second appeal shall operate as a stay of execution or proceeding under a decree or order appealed from except in so far as the court appealed from may order but, the court appealed from may for sufficient cause order stay of execution of such decree or order, and whether the application for such stay shall have been granted or refused by the court appealed from, the court to which such appeal is preferred shall be at liberty, on application being made, to consider such application and to make such order thereon as may to it seem just, and any person aggrieved by an order of stay made by the court from whose decision the appeal is preferred may apply to the appellate court to have such order set aside.
(2)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.”
The three conditions to be fulfilled can therefore be summarized as follows;
a.that substantial loss may result to the applicant unless the order is made
b.application has been made without unreasonable delay
c. Security for the due performance
11. These principles were enunciated in Butt vs Rent Restriction Tribunal [1979] the Court of Appeal stated what ought to be considered in determining whether to grant or refuse stay of execution pending appeal. The court said that: -
a.The power of the court to grant or refuse an application for a stay of execution is discretionary; and the discretion should be exercised in such a way as not to prevent an appeal.
b.Secondly, the general principle in granting or refusing a stay is, if there is no other overwhelming hindrance, a stay must be granted so that an appeal may not be rendered nugatory should the appeal court reverse the judge’s discretion.
c.Thirdly, a judge should not refuse a stay if there are good grounds for granting it merely because, in his opinion, a better remedy may become available to the applicant at the end of the proceedings.
d.Finally, the Court in exercising its discretion whether to grant or refuse an application for stay will consider the special circumstances and its unique requirements.
i)SUBSTANTIAL LOSS
12. In the case of James Wangalwa & Another vs. Agnes Naliaka Cheseto [2012] eKLR the court expressed itself as hereunder:
“
No doubt, in law, the fact that the process of execution has been put in motion, or is likely to be put in motion, by itself, does not amount to substantial loss. Even when execution has been levied and completed, that is to say, the attached properties have been sold, as is the case here, does not in itself amount to substantial loss under Order 42 Rule 6 of the CPR. This is so because execution is a lawful process. The applicant must establish other factors which show that the execution will create a state of affairs that will irreparably affect or negate the very essential core of the applicant as the successful party in the appeal ... the issue of substantial loss is the cornerstone of both jurisdictions. Substantial loss is what has to be prevented by preserving the status quo because such loss would render the appeal nugatory.”
13. In the case in Century Oil Trading Company Ltd vs. Kenya Shell Limited Nairobi (Milimani) HCMCA No. 1561 of 2007 where he stated that:
“The word “substantial” cannot mean the ordinary loss to which every judgement debtor is necessarily subjected when he loses his case and is deprived of his property in consequence. That is an element which must occur in every case and since the Code expressly prohibits stay of execution as an ordinary rule it is clear the words “substantial loss” must mean something in addition to all different from that…
13. In the supporting affidavit of the appellant it states that the respondent threatened to seize his tools of trade which would cause irreversible business harm and this was confirmed by his insurance company in the supporting affidavit .In addition to this he deponed that the respondent does not have a stable income and thus if the judgement is executed and later on he becomes successful in the appeal the respondent may not be able to reimburse him and that this was not challenged . In the case of National Industrial Credit Bank Ltd Vs Aquinas Francis Wasike & Another (2006) eKLR the Court of Appeal held thus;
“
Once an Applicant expresses a reasonable fact that a Respondent would be unable to pay back the decretal sum, the evidential burden must then shift to the Respondent to show whatever resources he has since that is a matter which is peculiarly within his knowledge.”
Thus in absence of proof from the respondent to rebutt the same I find that the applicant will suffer substantial loss if the respondent is paid the sum before the appeal is heard and determined.
ii. Security
14. As regards deposit of security, the court observed in the case of Gianfranco Manenthi & Another vs Africa merchant Assurance Co. Ltd [2019] eKLR it was held that:-
“The applicant must show and meet the condition of payment of security for due performance of the decree. Under this condition, a party who seeks the right of appeal from a money decree of the lower court for an order of stay must satisfy this condition on security. In this regard, the security for due performance of the decree under Order 42 Rule 6(1) of the Civil Procedure Rules, it is trite that the winner of litigation should not be denied the opportunity to execute the decree in order to enjoy the fruits of his judgment in case the appeal falls.
Further Order 42 should be seen from the point of view that a debt is already owed and due for payment to the successful litigant in a litigation before a court which has delivered the matter in his favour. This is therefore to provide a situation for the court that if the appellant fails to succeed on appeal there could be no return to status quo on the part of the plaintiff to initiate execution proceedings where the judgment involves a money decree. The court would order for the release of the deposited decretal amount to the respondent in the appeal….
Thus, the objective of the legal provisions on security was never intended to fetter the right of appeal. It was also put in place to ensure that courts do not assist litigants to delay execution of decrees through filing vexatious and frivolous appeals. In any event, the issue of deposit of security for due performance of decree is not a matter of willingness by the applicant but for the court to determine. Counsel for the applicant submitted that he is ready to provide a bank guarantee as security for due performance of the decree.”
15. Security is a condition which must be complied with under Order 42 rule 6 of the civil procedure rules .The appellant in his submissions stated that is willing and ready to provide any reasonable security required by the court while the respondent has suggested that if the court is inclined to grant the orders then half decretal sum should be deposited in a joint interest earning account while the other half should be released to the respondent. In the case of Matata & another v Rono & another (Civil Appeal E034 of 2024) [2024] KEHC 2799 (KLR) (19 March 2024) it was held that he Court must similarly consider the overriding objective and balance the interest of the parties to the suit while considering the issue of security to be offered. The law is that where the applicant intends to exercise his undoubted right of appeal, and in the event, that he were eventually to succeed, he should not be faced with a situation in which he would find himself unable to get back its money. Likewise, the respondent who has a decree in his favour should not, if the applicant were eventually to be unsuccessful in its intended appeal, find it difficult or impossible to realize the decree. This is the cornerstone of the requirement for security.
16. The issue of adequacy of security was dealt with by the Court of Appeal in Nduhiu Gitahi vs. Warugongo [1988] KLR 621; 1 KAR 100; [1988-92] 2 KAR 100 where the Court of Appeal expressed itself as follows:
“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 judgement has been given. It is subject to appeal. It may be 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.
Thus the applicant has stated that he will abide by any conditions or sum imposed by the court .In the case in Century Oil Trading Company Ltd vs. Kenya Shell Limited Nairobi (Milimani) HCMCA No. 1561 of 2007 where he stated that:
“The word “substantial” cannot mean the ordinary loss to which every judgement debtor is necessarily subjected when he loses his case and is deprived of his property in consequence. That is an element which must occur in every case and since the Code expressly prohibits stay of execution as an ordinary rule it is clear the words “substantial loss” must mean something in addition to all different from that…Where execution of a money decree is sought to be stayed, in considering whether the applicant will suffer substantial loss, the financial position of the applicant and that of the respondent becomes an issue. The court cannot shut its eyes where it appears the possibility is doubtful of the respondent refunding the decretal sum in the event that the applicant is successful in his appeal. The court has to balance the interest of the applicant who is seeking to preserve the status quo pending the hearing of the appeal so that his appeal is not rendered nugatory and the interest of the respondent who is seeking to enjoy the fruits of his judgement.”
17. Thus in balancing the interest of the respondent and that of the applicant keeping in mind that the respondent has not rebutted the claim of the applicant that he will be unable to pay back the decretal sum incase the appeal succeeds . Depositing the money in court will not serve the interest of justice as while the money is in the court’s account the same does not earn interest in favour of the parties . If the money is deposited in a joint interest earning account the party whom the appeal will favor will enjoy the interest . On the other hand if half of the decretal sum is released to the respondent as suggested he may not be able to refund the same incase the appeal succeeds .It is in the interest of justice that the entire decretal sum be deposited sum in a joint interest earning account to be opened in the joint names of both firms of advocates pending appeal .
DISPOSITION
18. . In the upshot application dated is allowed on the following terms .
a. Stay of execution of the judgment / Decree of Magistrate Hon. Paul Mutai delivered on the 7th November 2024 in Nairobi CMCC 728 of 2023 and all other consequential orders on condition that he appellant deposit the entire decretal sum in a joint interest earning account to be opened in the joint names of both firms of advocates on record .The orders be complied with Within 45 days from today.
b. The proclamation Notice dated 10th December 2024 and all the consequential execution are lifted .
c. The Respondent and his auctioneers M/s Bama Auctioneers to bear all the costs consequential to the execution including but not limited to all execution and storage fees, if any..
d. Costs to the applicant .
e. Mention on 1.12.25 before the Deputy Registrar for compliance .
T.A ODERA- JUDGE
24.10.25
DELIVERED VIRTUALLY VIA TEAMS PLATFORM ON THIS 24TH DAY OF OCTOBER 2025 IN THE PRESENCE OF MISS NAYNGO FOR THE APPELLANT , NYAENYA H/B FOR MISS ANGASA FOR RESPONDENT CA KIPCHIRCHIR
'
a)SPENT
b) SPENT S
c)Upon hearing and determination of this Appeal, an order of stay of execution do issue the judgment / Decree of Magistrate Hon. Paul Mutai delivered on the 7th November 2024 in Nairobi CMCC 728 of 2023 and all other consequential orders.
d)An order lifting the Proclamation Notices dated 10th December 2024 setting aside warrants of attachment dated 9th December 2024 and release of any property of the appellant attached or seized by agents or auctioneers acting on behalf of the respondents in furtherance of the above said judgement.
E )Costs to the respondents
f) any other orders court may deem reasonable
2.This application is supported by the annexed supporting Affidavit of Wilson Odek in which he deponed that;
a. He is an advocate working for Britam General Insurance and that they support the appellant''s stay of execution as he believes that the appeal is arguable.
b. The respondent threatened to carry away the appellant''s tools of trade and assets and this would ground his operation and trade.
c. He said he believes that the appeal is arguable and hence the application is merited.
d. The respondent threatened to carry away the appellant''s tools of trade and assets and this would ground his operation and trade.
e. .That the Appellant is willing to comply with a fair, just and reasonable order or deposit of security as a condition of the grant of stay of orders of execution in which case the respondent will not suffer any prejudice if the order is granted.
4. The respondent filed a replying affidavit dated 29/1/2025 in which he deponed that the respondents application is an abuse of the court process and it lacks merits thus should be dismissed with costs .Also said that judgement in the instant suit was delivered in the respondents favour and the applicant was granted stay of execution of 30 days from the date of delivery of judgement which has already lapsed without the applicant taking any step whatsoever to satisfy judgement against him. Further that the applicant’s insurer was aware of the said judgement since its delivery and chose to not act on the same until the lapse of stay of execution which delay has not been explained
5. Also that the process used to acquire warrants of attachment were procedural and the court record shows that all the mandatory requirements stipulated under the Auctioneers Act and rules were followed to the latter.
6. Further that James Gachiri introduced himself as the site manager and was served with both the proclamation and warranties of attachment on 10/12/2024 and appended his signature ad copies of the proclamations are provided. He said that the applicant has not filed any application seeking leave of court to file an appeal out of time. That the applicant has not filed any memorandum of appeal as an annexure to his application thus it lacks merit and should be dismissed. The respondent told this court that the applicant had not offered any security as required by law and that he has not shown that he will suffer substantial loss if the application is denied . .
3.Appellant submitted that the Appeal is arguable and has a high chance of success since they are challenging liability and quantum . Furthermore that on 20th December 2024 the Respondent took out warrants of attachment of
by issuing proclamation through Moran Auctioneers and sought to illegally and immediately attach the Appellant’s goods and tools of trade.
The appellants had only learned about it the previous day as the watch man a the office had declined to be served and told them to serve the Appellant’s Nairobi office which deals with legal letters .In service of the Warrant is therefore unprocedural as the person served was unqualified to accept service on behalf of the Appellant..
3. Also that the respondent has no stable income and may not be able to reimburse the money if paid and the appeal succeeds.
ANALYSIS AND ISSUES FOR DETERMINATION
7.Having considered the applicant’s supporting affidavit ,his submissions and the respondent’s replying affidavit and his submissions .The issues for determination are ;
a. whether the applicant should have sought leave to file the appeal out of time,
b. Whether the application meets the threshold for grant of stay pending appeal .
c. whether applicant was properly served with the proclamation notice .
.
8. The respondent argued that the applicant should have sought the leave of court to file an appeal out of time in his replying affidavit. This is disputed . This however is a misapprehension on the part of the respondent the record indicates that judgement was delivered on 7th November 2024 and the memorandum of appeal was filed the 26th Day of November thus evidently there was no delay as it was within the 30 days timeline and thus there was no need for the applicant to seek the leave of court to file an appeal out of time.
9. On whether the applicant was properly served with the proclamation , it disputed service while the respondents that they properly served Engineer James Gichuru who introduced himself as the manager of the respondent was duly served and received them even appending his signature on the proclamation . However the applicant said it was not served that they were not served as the respondents
tried to serve but the watchman who was present declined and instructed them to take the documents to the Nairobi branch which is where the legal office is located.. I have seen the proclamation attached by the applicant and the one attached by respondent the one attached by the applicant indicates that the said James Gachiri refused to sign while the one by the respondent indicates it was signed by the said James Gachiri who signed the same.. The appellants cited Rule 12(1)b which provides that upon proclamation the auctioneers shall (b) ‘’prepare a proclamation in Sale Form 2 of the Schedule indicating the value of specific items and the condition of each item, such inventory to be signed by the owner of the goods or an adult person residing or working at the premises where the goods are attached or repossessed, and where any person refuses to sign such inventory the auctioneer shall sign a certificate to that effect; ‘’ The copy of proclamation by the applicant is not denied .and thus there are two contradictory proclamations filed herein .and no certificate of refusal was filed by the auctioneer under the said rule . I will resolve this puzzle in favor of the applicant and I find that the proclamation was irregular .
10. On whether the stay of execution should be granted Stay of Execution is provided under Order 42 Rule 6 of the Civil Procedure Rules 2010 as follows;
(1)No appeal or second appeal shall operate as a stay of execution or proceeding under a decree or order appealed from except in so far as the court appealed from may order but, the court appealed from may for sufficient cause order stay of execution of such decree or order, and whether the application for such stay shall have been granted or refused by the court appealed from, the court to which such appeal is preferred shall be at liberty, on application being made, to consider such application and to make such order thereon as may to it seem just, and any person aggrieved by an order of stay made by the court from whose decision the appeal is preferred may apply to the appellate court to have such order set aside.
(2)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.”
The three conditions to be fulfilled can therefore be summarized as follows;
a.that substantial loss may result to the applicant unless the order is made
b.application has been made without unreasonable delay
c. Security for the due performance
11. These principles were enunciated in Butt vs Rent Restriction Tribunal [1979] the Court of Appeal stated what ought to be considered in determining whether to grant or refuse stay of execution pending appeal. The court said that: -
a.The power of the court to grant or refuse an application for a stay of execution is discretionary; and the discretion should be exercised in such a way as not to prevent an appeal.
b.Secondly, the general principle in granting or refusing a stay is, if there is no other overwhelming hindrance, a stay must be granted so that an appeal may not be rendered nugatory should the appeal court reverse the judge’s discretion.
c.Thirdly, a judge should not refuse a stay if there are good grounds for granting it merely because, in his opinion, a better remedy may become available to the applicant at the end of the proceedings.
d.Finally, the Court in exercising its discretion whether to grant or refuse an application for stay will consider the special circumstances and its unique requirements.
i)SUBSTANTIAL LOSS
12. In the case of James Wangalwa & Another vs. Agnes Naliaka Cheseto [2012] eKLR the court expressed itself as hereunder:
“
No doubt, in law, the fact that the process of execution has been put in motion, or is likely to be put in motion, by itself, does not amount to substantial loss. Even when execution has been levied and completed, that is to say, the attached properties have been sold, as is the case here, does not in itself amount to substantial loss under Order 42 Rule 6 of the CPR. This is so because execution is a lawful process. The applicant must establish other factors which show that the execution will create a state of affairs that will irreparably affect or negate the very essential core of the applicant as the successful party in the appeal ... the issue of substantial loss is the cornerstone of both jurisdictions. Substantial loss is what has to be prevented by preserving the status quo because such loss would render the appeal nugatory.”
13. In the case in Century Oil Trading Company Ltd vs. Kenya Shell Limited Nairobi (Milimani) HCMCA No. 1561 of 2007 where he stated that:
“The word “substantial” cannot mean the ordinary loss to which every judgement debtor is necessarily subjected when he loses his case and is deprived of his property in consequence. That is an element which must occur in every case and since the Code expressly prohibits stay of execution as an ordinary rule it is clear the words “substantial loss” must mean something in addition to all different from that…
13. In the supporting affidavit of the appellant it states that the respondent threatened to seize his tools of trade which would cause irreversible business harm and this was confirmed by his insurance company in the supporting affidavit .In addition to this he deponed that the respondent does not have a stable income and thus if the judgement is executed and later on he becomes successful in the appeal the respondent may not be able to reimburse him and that this was not challenged . In the case of National Industrial Credit Bank Ltd Vs Aquinas Francis Wasike & Another (2006) eKLR the Court of Appeal held thus;
“
Once an Applicant expresses a reasonable fact that a Respondent would be unable to pay back the decretal sum, the evidential burden must then shift to the Respondent to show whatever resources he has since that is a matter which is peculiarly within his knowledge.”
Thus in absence of proof from the respondent to rebutt the same I find that the applicant will suffer substantial loss if the respondent is paid the sum before the appeal is heard and determined.
ii. Security
14. As regards deposit of security, the court observed in the case of Gianfranco Manenthi & Another vs Africa merchant Assurance Co. Ltd [2019] eKLR it was held that:-
“The applicant must show and meet the condition of payment of security for due performance of the decree. Under this condition, a party who seeks the right of appeal from a money decree of the lower court for an order of stay must satisfy this condition on security. In this regard, the security for due performance of the decree under Order 42 Rule 6(1) of the Civil Procedure Rules, it is trite that the winner of litigation should not be denied the opportunity to execute the decree in order to enjoy the fruits of his judgment in case the appeal falls.
Further Order 42 should be seen from the point of view that a debt is already owed and due for payment to the successful litigant in a litigation before a court which has delivered the matter in his favour. This is therefore to provide a situation for the court that if the appellant fails to succeed on appeal there could be no return to status quo on the part of the plaintiff to initiate execution proceedings where the judgment involves a money decree. The court would order for the release of the deposited decretal amount to the respondent in the appeal….
Thus, the objective of the legal provisions on security was never intended to fetter the right of appeal. It was also put in place to ensure that courts do not assist litigants to delay execution of decrees through filing vexatious and frivolous appeals. In any event, the issue of deposit of security for due performance of decree is not a matter of willingness by the applicant but for the court to determine. Counsel for the applicant submitted that he is ready to provide a bank guarantee as security for due performance of the decree.”
15. Security is a condition which must be complied with under Order 42 rule 6 of the civil procedure rules .The appellant in his submissions stated that is willing and ready to provide any reasonable security required by the court while the respondent has suggested that if the court is inclined to grant the orders then half decretal sum should be deposited in a joint interest earning account while the other half should be released to the respondent. In the case of Matata & another v Rono & another (Civil Appeal E034 of 2024) [2024] KEHC 2799 (KLR) (19 March 2024) it was held that he Court must similarly consider the overriding objective and balance the interest of the parties to the suit while considering the issue of security to be offered. The law is that where the applicant intends to exercise his undoubted right of appeal, and in the event, that he were eventually to succeed, he should not be faced with a situation in which he would find himself unable to get back its money. Likewise, the respondent who has a decree in his favour should not, if the applicant were eventually to be unsuccessful in its intended appeal, find it difficult or impossible to realize the decree. This is the cornerstone of the requirement for security.
16. The issue of adequacy of security was dealt with by the Court of Appeal in Nduhiu Gitahi vs. Warugongo [1988] KLR 621; 1 KAR 100; [1988-92] 2 KAR 100 where the Court of Appeal expressed itself as follows:
“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 judgement has been given. It is subject to appeal. It may be 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.
Thus the applicant has stated that he will abide by any conditions or sum imposed by the court .In the case in Century Oil Trading Company Ltd vs. Kenya Shell Limited Nairobi (Milimani) HCMCA No. 1561 of 2007 where he stated that:
“The word “substantial” cannot mean the ordinary loss to which every judgement debtor is necessarily subjected when he loses his case and is deprived of his property in consequence. That is an element which must occur in every case and since the Code expressly prohibits stay of execution as an ordinary rule it is clear the words “substantial loss” must mean something in addition to all different from that…Where execution of a money decree is sought to be stayed, in considering whether the applicant will suffer substantial loss, the financial position of the applicant and that of the respondent becomes an issue. The court cannot shut its eyes where it appears the possibility is doubtful of the respondent refunding the decretal sum in the event that the applicant is successful in his appeal. The court has to balance the interest of the applicant who is seeking to preserve the status quo pending the hearing of the appeal so that his appeal is not rendered nugatory and the interest of the respondent who is seeking to enjoy the fruits of his judgement.”
17. Thus in balancing the interest of the respondent and that of the applicant keeping in mind that the respondent has not rebutted the claim of the applicant that he will be unable to pay back the decretal sum incase the appeal succeeds . Depositing the money in court will not serve the interest of justice as while the money is in the court’s account the same does not earn interest in favour of the parties . If the money is deposited in a joint interest earning account the party whom the appeal will favor will enjoy the interest . On the other hand if half of the decretal sum is released to the respondent as suggested he may not be able to refund the same incase the appeal succeeds .It is in the interest of justice that the entire decretal sum be deposited sum in a joint interest earning account to be opened in the joint names of both firms of advocates pending appeal .
DISPOSITION
18. . In the upshot application dated is allowed on the following terms .
a. Stay of execution of the judgment / Decree of Magistrate Hon. Paul Mutai delivered on the 7th November 2024 in Nairobi CMCC 728 of 2023 and all other consequential orders on condition that he appellant deposit the entire decretal sum in a joint interest earning account to be opened in the joint names of both firms of advocates on record .The orders be complied with Within 45 days from today.
b. The proclamation Notice dated 10th December 2024 and all the consequential execution are lifted .
c. The Respondent and his auctioneers M/s Bama Auctioneers to bear all the costs consequential to the execution including but not limited to all execution and storage fees, if any..
d. Costs to the applicant .
e. Mention on 1.12.25 before the Deputy Registrar for compliance .
T.A ODERA- JUDGE
24.10.25
DELIVERED VIRTUALLY VIA TEAMS PLATFORM ON THIS 24TH DAY OF OCTOBER 2025 IN THE PRESENCE OF MISS NAYNGO FOR THE APPELLANT , NYAENYA H/B FOR MISS ANGASA FOR RESPONDENT CA KIPCHIRCHIR
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