1. This court delivered a judgment on 16th December 2025 in which it found that Garden Cottage, a house located on Title No. Kwale/Galu Kinondo/646, situated along Beach Road, Galu Beach, Diani in Kwale County, which is registered in the name of a company called Monkey Beach Ltd, was a matrimonial property owned on a 50:50 basis by the claimant/respondent and the respondent/applicant. The court ordered that, since the relationship between the parties had irretrievably broken down, the property be sold and the proceeds shared in the ratio identified by the court within 90 days of the judgment date.
2. The respondent/applicant was aggrieved by the said decision and lodged a Notice of Appeal. The appeal challenges the entire judgment.
3. Vide an application dated 17th March 2026, the respondent seeks to have the execution of the impugned judgment stayed pending the hearing and determination of the intended appeal and for costs to be provided for. The respondent/applicant contends that the intended appeal has a very high chance of success and that it may be rendered nugatory unless a stay is granted.
4. The application is opposed by the claimant/respondent vide her replying affidavit sworn on 13th April 2026. She contended that the stay application was only filed after she filed an application seeking to enforce the judgment. She accused the respondent/applicant of failing to file the application in a timely manner and of seeking to frustrate the execution of the judgment.
5. The claimant/respondent contended that the respondent/applicant would not suffer substantial loss, that no application was filed after an inordinate delay and that no security for the due performance of the decree of judgment had been provided. She contended that no appeal had been filed because the respondent/applicant had lodged only a Notice of Appeal.
6. Without prejudice, Ms Rule stated that if the court was minded to grant a stay, it should do so on condition that the property be valued, security for the due performance of the decree provided and that the property be preserved.
7. The application was canvassed by way of written submissions. The written submissions of the respondent/applicant are dated 20th April 2026. Mr Hugh William Murray Rule’s counsel contended that, given the circumstances of the case, the appeal was filed without undue delay. Mr Dunstan Omari contended that his client would suffer substantial loss if a stay was not granted, as the house has significant sentimental and historical value, and that the loss of the said house could not be adequately quantified or compensated by an award of damages.
8. Regarding the provision of security, it was urged that the issuance of security was not necessary in the circumstances of this case and that the court had the discretion not to require it.
9. On the other hand, the claimant/applicant’s counsel, Ms Mwasame, filed written submissions dated 5th May 2026 in which she prayed that the court be pleased to dismiss the application for stay pending appeal. Counsel contended that it hadn’t been demonstrated that the applicant would suffer substantial loss unless a stay was granted.
10. It was contended that there had been an unreasonable delay in filing the application for stay of execution of the judgment pending appeal. Counsel submitted that the respondent/applicant was aware of the judgment all along and that he opted not to do anything. She saw in his conduct a tactical intention to delay the enforcement of the judgment.
11. Counsel submitted that it was incumbent on the respondent/applicant to provide security and that the failure to do so was fatal.
12. I have considered the application and the responses thereto. This is an application for a stay pending appeal. The conditions under which the courts grant a stay of execution pending appeal are set out in Order 42 Rule 6(2) of the Civil Procedure Rules. The said Rule states that:
(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.
13. It is clear from the foregoing that an applicant, to succeed in an application for stay pending appeal, must show that:
i) He will suffer substantial loss unless a stay is granted;
ii) That the application was filed without undue delay; and
iii) Provide security for the due performance of the decree or order that may ultimately be binding.
14. In the case of RWW vs EKW (2019) KEUC 66 (KLR), it was held that:
“The purpose of an application for stay of execution pending an appeal is to preserve the subject matter in dispute so that the rights of the appellant who is exercising the undoubted right of appeal are safeguarded, and the appeal, if successful, is not rendered nugatory. However, in doing so, the court should weigh this right against the success of a litigant who should not be deprived of the fruits of his/her judgment. The court is also called upon to ensure that no party suffers prejudice that cannot be compensated by an award of costs.”
15. Similarly, in the case of JAMES WANGALWA & ANOTHER V AGNES NALIAKA CHESETO [2012] KEHC 1094 (KLR), it was stated by the court that:
“11. 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. This is what substantial loss would entail, a question that was aptly discussed in the case of Silverstein N. Chesoni [2002] 1KLR 867, and also in the case of Mukuma V Abuoga quoted above. The last case, referring to the exercise of discretion by the High Court and the Court of Appeal in the granting stay of execution, under Order 42 of the CPR and Rule 5(2) (b) of the Court of Appeal Rules, respectively, emphasized the centrality of substantial loss thus:
“…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.”
With this observation, of course, a frivolous appeal cannot, in practical terms, be rendered nugatory. The only admonition, however, is that the High Court should not base the exercise of its discretion under Order 42 Rule 6of the CPR only on the chances of the success of the appeal. Much more is needed in accordance with the test I have set out above.”
16. The respondent/applicant has averred that, unless a stay is granted, the house will be sold. According to him, the house has sentimental value which cannot be quantified. He has expressed confidence that his appeal has very good chances of success. Houses are often repositories of memories of the good and bad times, of shared joy and angst. Such matters of a sentimental nature are irreplaceable. It would appear to me that the sale of the house would cause him a substantial loss.
17. The court, in the Case of Butt v Rent Restriction Tribunal (1979) eKLR, was emphatic that the discretion of the court, whether or not to grant or refuse an application for stay, should be exercised in such a way as not to prevent an appeal.
18. Was the application filed after an unreasonable delay? Whereas it may seem so at first glance, the circumstances of this matter are peculiar. The applicant has explained his difficulty in accessing the court file and attached copies of correspondence to buttress his assertions. I am satisfied, given the circumstances, that the delay was not unreasonable and that, in any event, it has been explained. In light of that, the second test has been met.
19. What of the 3rd condition? I note that the respondent/applicant has not offered any security for the due performance of the decree. On the other hand, I am aware that the subject matter of the litigation is property, not a money decree. In my view, the need for security for the due performance of the decree can be readily met by an order preserving that property pending the hearing and determination of the appeal. I agree with the dictum in RWW vs EKW (supra) that, in matrimonial property matters, provision of security can be waived.
20. The upshot of the foregoing is that I allow the application dated 17th March 2026, and stay the execution of the impugned judgment, on condition that:
i) The suit property is preserved and not sold or charged during the pendency of the appeal;
ii) Shareholding in Monkey Bench Ltd is not altered during the pendency of the appeal, and that company’s properties, of any nature, are not to be charged or encumbered in any way; and
iii) The claimant/respondent shall have a right to access and reside in Garden Cottage, Title No. Kwale/Galu Kinondo/646, situated along Beach Road, Galu Beach, Diani in Kwale County, whenever she is in Kenya.
21. Given the nature of the matter, each party shall bear his/her own costs.
22. It is so ordered.
Dated and delivered in Nairobi, this 5th day of June 2026.
2. The respondent/applicant was aggrieved by the said decision and lodged a Notice of Appeal. The appeal challenges the entire judgment.
3. Vide an application dated 17th March 2026, the respondent seeks to have the execution of the impugned judgment stayed pending the hearing and determination of the intended appeal and for costs to be provided for. The respondent/applicant contends that the intended appeal has a very high chance of success and that it may be rendered nugatory unless a stay is granted.
4. The application is opposed by the claimant/respondent vide her replying affidavit sworn on 13th April 2026. She contended that the stay application was only filed after she filed an application seeking to enforce the judgment. She accused the respondent/applicant of failing to file the application in a timely manner and of seeking to frustrate the execution of the judgment.
5. The claimant/respondent contended that the respondent/applicant would not suffer substantial loss, that no application was filed after an inordinate delay and that no security for the due performance of the decree of judgment had been provided. She contended that no appeal had been filed because the respondent/applicant had lodged only a Notice of Appeal.
6. Without prejudice, Ms Rule stated that if the court was minded to grant a stay, it should do so on condition that the property be valued, security for the due performance of the decree provided and that the property be preserved.
7. The application was canvassed by way of written submissions. The written submissions of the respondent/applicant are dated 20th April 2026. Mr Hugh William Murray Rule’s counsel contended that, given the circumstances of the case, the appeal was filed without undue delay. Mr Dunstan Omari contended that his client would suffer substantial loss if a stay was not granted, as the house has significant sentimental and historical value, and that the loss of the said house could not be adequately quantified or compensated by an award of damages.
8. Regarding the provision of security, it was urged that the issuance of security was not necessary in the circumstances of this case and that the court had the discretion not to require it.
9. On the other hand, the claimant/applicant’s counsel, Ms Mwasame, filed written submissions dated 5th May 2026 in which she prayed that the court be pleased to dismiss the application for stay pending appeal. Counsel contended that it hadn’t been demonstrated that the applicant would suffer substantial loss unless a stay was granted.
10. It was contended that there had been an unreasonable delay in filing the application for stay of execution of the judgment pending appeal. Counsel submitted that the respondent/applicant was aware of the judgment all along and that he opted not to do anything. She saw in his conduct a tactical intention to delay the enforcement of the judgment.
11. Counsel submitted that it was incumbent on the respondent/applicant to provide security and that the failure to do so was fatal.
12. I have considered the application and the responses thereto. This is an application for a stay pending appeal. The conditions under which the courts grant a stay of execution pending appeal are set out in Order 42 Rule 6(2) of the Civil Procedure Rules. The said Rule states that:
(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.
13. It is clear from the foregoing that an applicant, to succeed in an application for stay pending appeal, must show that:
i) He will suffer substantial loss unless a stay is granted;
ii) That the application was filed without undue delay; and
iii) Provide security for the due performance of the decree or order that may ultimately be binding.
14. In the case of RWW vs EKW (2019) KEUC 66 (KLR), it was held that:
“The purpose of an application for stay of execution pending an appeal is to preserve the subject matter in dispute so that the rights of the appellant who is exercising the undoubted right of appeal are safeguarded, and the appeal, if successful, is not rendered nugatory. However, in doing so, the court should weigh this right against the success of a litigant who should not be deprived of the fruits of his/her judgment. The court is also called upon to ensure that no party suffers prejudice that cannot be compensated by an award of costs.”
15. Similarly, in the case of JAMES WANGALWA & ANOTHER V AGNES NALIAKA CHESETO [2012] KEHC 1094 (KLR), it was stated by the court that:
“11. 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. This is what substantial loss would entail, a question that was aptly discussed in the case of Silverstein N. Chesoni [2002] 1KLR 867, and also in the case of Mukuma V Abuoga quoted above. The last case, referring to the exercise of discretion by the High Court and the Court of Appeal in the granting stay of execution, under Order 42 of the CPR and Rule 5(2) (b) of the Court of Appeal Rules, respectively, emphasized the centrality of substantial loss thus:
“…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.”
With this observation, of course, a frivolous appeal cannot, in practical terms, be rendered nugatory. The only admonition, however, is that the High Court should not base the exercise of its discretion under Order 42 Rule 6of the CPR only on the chances of the success of the appeal. Much more is needed in accordance with the test I have set out above.”
16. The respondent/applicant has averred that, unless a stay is granted, the house will be sold. According to him, the house has sentimental value which cannot be quantified. He has expressed confidence that his appeal has very good chances of success. Houses are often repositories of memories of the good and bad times, of shared joy and angst. Such matters of a sentimental nature are irreplaceable. It would appear to me that the sale of the house would cause him a substantial loss.
17. The court, in the Case of Butt v Rent Restriction Tribunal (1979) eKLR, was emphatic that the discretion of the court, whether or not to grant or refuse an application for stay, should be exercised in such a way as not to prevent an appeal.
18. Was the application filed after an unreasonable delay? Whereas it may seem so at first glance, the circumstances of this matter are peculiar. The applicant has explained his difficulty in accessing the court file and attached copies of correspondence to buttress his assertions. I am satisfied, given the circumstances, that the delay was not unreasonable and that, in any event, it has been explained. In light of that, the second test has been met.
19. What of the 3rd condition? I note that the respondent/applicant has not offered any security for the due performance of the decree. On the other hand, I am aware that the subject matter of the litigation is property, not a money decree. In my view, the need for security for the due performance of the decree can be readily met by an order preserving that property pending the hearing and determination of the appeal. I agree with the dictum in RWW vs EKW (supra) that, in matrimonial property matters, provision of security can be waived.
20. The upshot of the foregoing is that I allow the application dated 17th March 2026, and stay the execution of the impugned judgment, on condition that:
i) The suit property is preserved and not sold or charged during the pendency of the appeal;
ii) Shareholding in Monkey Bench Ltd is not altered during the pendency of the appeal, and that company’s properties, of any nature, are not to be charged or encumbered in any way; and
iii) The claimant/respondent shall have a right to access and reside in Garden Cottage, Title No. Kwale/Galu Kinondo/646, situated along Beach Road, Galu Beach, Diani in Kwale County, whenever she is in Kenya.
21. Given the nature of the matter, each party shall bear his/her own costs.
22. It is so ordered.
Dated and delivered in Nairobi, this 5th day of June 2026.