REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MARSABIT
CIVIL APPEAL NO. E003 OF 2025
MARY HIRBO HALAKE……………….………PLAINTIFF/RESPONDENT
VERSUS
KIOGORA MUGAMBI T/A
KIOGORA MUGAMBI & CO ADVOCATES
…………………………..….……….…………. DEFEDANT/ APPLICANT
R U L I N G
A. Introduction
1. The application before this court for determination is the Notice of Motion application dated 13 th July 2026 brought pursuant to provisions of Section 3, 3A, 63(e) of the Civil Procedure Act, Order 42 Rule 1,2, 6(1) and (6) of the Civil Procedure Rules, 2010 and all other enabling provision of law. Prayers (1) and (2) of the said application is spent and the main prayer sought is prayer (3) to (5) that;
(a) That this Honourable court be pleased to stay execution of the judgment/decree and all the consequential orders made on 21.05.2025 and 09.07.2026 thereof in Marsabit Civil case No E003 of 2025 pending hearing and determination of the intended Appeal.
(b) That this Honourable court be pleased to issue further orders as it deems fit and just in the circumstances.
(c) That costs of this Application be provided for.
2. This application is supported by the grounds on the face of the said application and the supporting affidavit of the defendant/applicant dated 13th July 2026, while the plaintiff/respondent opposed this application through her replying affidavit dated 22 nd July 2026.
(i) The Application
3. The Appellant averred that judgement was entered as against him condemning him to pay Ksh 1,087,110.50/= together with cost and interest on 21.05.2025 and being dissatisfied by the said decision opted to file for review through his application dated 18.11.2025, which was heard and subsequently dismissed on 09.07.2026 and costs thereof assessed at Kshs 30,000/= .Further being dissatisfied by this subsequent ruling, he had opted to file an appeal at the court of appeal had had since lodged his Notice of Appeal dated 11.07.2026 and sought to be supplied with typed proceedings to pave way for filing of the substantive appeal.
4. The applicant further averred that the intended appeal was not frivolous and raised several arguable grounds of appeal, which he needed to ventilate and that there were real fear and apprehension that unless stay of execution was granted, the respondent would proceed to enforce the decree issued to his loss and detriment. He was also apprehensive that if the said decretal amount was paid out to the respondent, she would be unable to recover the said amount from her should the appeal succeed, and hence stood to suffer substantial loss and damage.
5. The applicant thus urged the court to grant the orders sought, and stated that he was willing to abide by the orders issued regarding security for due performance of the decree as may be ultimately binding upon him. Finally, the Applicant stated that this application had been filed promptly and that the Respondent would not suffer any prejudiced if orders sought were granted.
(ii) The Response
6. The plaintiff/Respondent opposed this application through her Replying Affidavit dated 22 nd July 2026, wherein she emphasized that this application was a ploy by the applicant to waste time and keep her away from enjoying the fruits of her judgement. After the initial judgment had been entered against the applicant, he had filed an application dated 10.06.2025 to set aside the said judgment, which application was heard on merit and dismissed on 28.08.2025.
7. The applicant then filed his second application dated 18.11.2025 to review the said ruling, which application too, was heard on merit and was eventually dismissed on 09.07.2026 with costs of Kshs 30,000/= . He had again returned before this court with this third application, which must be looked at in light of his previous conduct as it was not a bona fide attempt to preserve an appeal, but was a continuation of a deliberate pattern of delay aim at circumventing the respondent from enjoying the fruits of her judgement. She urged the court to consider her plight as she was an elderly woman, in the twilight days of her life and thus should not be prejudiced by unending vexatious litigation.
8. Further, it was her contention that the applicant had not shown, which substantial loss he would suffer, if the orders sought are not granted nor had he placed any evidence before the court to support his allegation that the appeal would be rendered nugatory if stay is not granted. Finally, the applicant had also alleged without proof that she would be unable to refund the decretal amount, should he succeed in his appeal, which was unlikely. Nevertheless, if the court was inclined to grant the orders sought, the respondent urged the court to direct the applicant to deposit the entire decretal sum in a joint interest earning account held in the names of both advocates herein within a specified period time, failure to which the said application would stand dismissed.
9. The respondent therefore strongly urged the court to find that this application lacked merit and prayed that it be dismissed with costs.
(iii). Analysis & Determination
10. I have carefully considered the Application, its Supporting Affidavit, the Respondent’s Replying Affidavit filed in opposition thereto. The only issue for determination is whether the Appellant has met the conditions necessary for the grant of stay pending appeal.
11. Stay of execution pending appeal is governed by Order 42 Rule 6 of the Civil Procedure Rules . It is evident from the said provision that power to grant stay of execution pending appeal is an exercise of discretion of the court on sufficient cause being shown by the Applicant that substantial loss may result if the orders are denied; the application should be made without undue delay and the court will impose such security for the due performance of any decree or order as may ultimately be binding on the Applicant.
12. As stated in the case of Amal Hauliers Limited Vs Abdulnasi Abukar Hassan (2017) eKLR which quoted with approval Butt Vs Rent Tribunal (1982) KLR 417 the guiding principles which the court should consider while determining an application of this nature. These were;
(a) The power of the court to grant or refuse an application for stay of execution is a discretionary power. The discretion should be exercised in such a way as not to prevent an appeal.
(b) 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 to be rendered nugatory should that appeal court reverse the judge’s discretion.
(c) A judge should not refuse 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) The court in exercising the discretion whether to grant (or) refuse an application for stay will consider the special circumstances of the cases and unique requirements. The special circumstances in this case were that there was a large amount of rent in dispute and the Appellant had an undoubted right of appeal.
(e) The court in exercising its powers under Order XLI rule 4(2) (b) of the Civil Procedure Rules can order security upon application by either party or on its own motion. Failure to put security for costs as ordered will cause the order for stay of execution to lapse.
(f) The Appellants finally averred that this court is clothed with very wide discretion to grant the orders sought under Section 3A as read together with Section 63(c) of the Civil Procedure Act.
13. The ruling appealed against was delivered on 9 th July, 2026. The notice of appeal and this application were filed on 13 th July 2026. This was within a period of less than seven (7) days from the date of judgment and thus it can be said that this appeal and this application have been filed timeously.
14. On the likelihood of suffering substantial loss, In the case of G. N. Muema P/A (516) Mt View Maternity & Nursing Home Vs Miriam Maalim Bishar & Another (2010) eKLR the court stated as follows;
“ It was the considered view of this court that substantial loss does not have to be a lot of money. It was sufficient if an applicant seeking a stay of execution demonstrated that it would have to go through hardship such as instituting legal proceedings to recover the decretal sum if paid to a respondent in the event his or her appeal was successful. Failure to recover such decretal sum would render his appeal nugatory if he or she was successful.”
15. 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.”
16. The decretal sum due herein is Kshs 1,087,110.50/= plus costs of the two dismissed application totaling to Kshs 60,000/= . The applicant has averred that should this sum be paid out and he succeed in his appeal he will be unable to recover the said amount. The respondent on the other hand has dismissed this averment as being speculative and is unsupported by evidence.
17. Guided by the above authorities and in the absence of the requisite proof from the Respondent that she is a person of means, I find that the Appellant has satisfied this court that he would suffer substantial loss if the entire decretal sum is paid to the Respondent before the appeal is heard and determined. The Appellant has therefore fulfilled this condition.
18. On the security, the court has to balance the interest of the Appellant who seeks to preserve the status quo pending hearing of the appeal and to ensure the appeal is not rendered nugatory and the interest of the Respondent who seeks to enjoy the fruits of her judgment. In other words, the court should not only consider the interest of the Appellant but also consider, in all fairness, the interest of the Respondent who has been denied the fruit of his judgment. See Attorney General Vs Halal Meat Produces Limited Civil Application No. Nairobi 270 of 2008; Kenya Shell Ltd Vs Kibiru & another (Supreme); Mukuma Vs Abuoga (1988) KLR 645.
19. The law is that where the Applicant succeeds, it should not be faced with a situation in which it would find itself unable to get back its money. Likewise, the Respondent who has a decree in her favour should not, if the applicant is eventually unsuccessful in its intended appeal, find it difficult or impossible to realize the decree. This is the cornerstone of the requirement for security.
20. This issue of adequacy of security was also dealt with in the Court of Appeal in Nduhiu Gitahi Vs Warugongo (1988) KLR 621; IKAR 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 guarantees 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 judgment has been given. It is subject to 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 issues pending in the appeal. For that purpose, it matters not whether the plaintiff are secured in one way rather than the other, it would be easier for the defendants or if for any reasons they would prefer to provide security by a bank guarantee rather than cash. There are absolutely no principles why they should not do so… The aim of the court in this case was to make sure, in an even-handed manner, that there would not be prejudiced and that the decretal sum would be available if required. The Respondent is not entitled, for instance, to make life difficult for the Applicant so as to tempt him into settling the appeal or will any party lose if the sum is actually paid with interest at court rates. Indeed, in this case there is less need to protect the defendant because nearly half the sum will have been paid and the balance was at one stage open to negotiation to reduce it.”
DISPOSTION
21. Taking all relevant factors into consideration and in order not to render the intended appeal illusory, I do grant stay of execution of the decree issued herein pending hearing and determination of the Appeal filed in the Court of Appeal.
22. The Appellant will deposit the entire decretal sum ( Kshs 1,087,110.50/=) plus costs awarded for the two application, (Kshs 60,000/=) total amount being Kshs 1,147,110.50/= in a joint interest earning account to be opened at KCB MARSABIT and/or ISIOLO, which account will be held under the joint names of counsels for the Appellant and respondent herein pending the hearing and determination of the appeal filed in the Court of Appeal.
23. That the said amount shall be deposited within the next 45 days from the date hereof and should the applicant fail to do so, this appeal will stand dismissed and the respondent will be at liberty to execute.
24. The costs of this Application will Abide the Appeal.
25. It is so ordered.
READ, SIGNED and DE LIVERED virtually at MARSABIT on this ……30th………. day of JULY, 2026.
FRANCIS RAYOLA OLEL
JUDGE
Delivered on the virtual platform, Teams this …30th…… day of JULY, 2026.
In the presence of;
……MR KIOGORA MUGAMBI…………….for Appellant
………………N/A………………….for Respondent
……………ABDOW…………………….Court Assistant
MARSABIT HCC NO E003 OF 2025 (OS)2
IN THE HIGH COURT OF KENYA AT MARSABIT
CIVIL APPEAL NO. E003 OF 2025
MARY HIRBO HALAKE……………….………PLAINTIFF/RESPONDENT
VERSUS
KIOGORA MUGAMBI T/A
KIOGORA MUGAMBI & CO ADVOCATES
…………………………..….……….…………. DEFEDANT/ APPLICANT
R U L I N G
A. Introduction
1. The application before this court for determination is the Notice of Motion application dated 13 th July 2026 brought pursuant to provisions of Section 3, 3A, 63(e) of the Civil Procedure Act, Order 42 Rule 1,2, 6(1) and (6) of the Civil Procedure Rules, 2010 and all other enabling provision of law. Prayers (1) and (2) of the said application is spent and the main prayer sought is prayer (3) to (5) that;
(a) That this Honourable court be pleased to stay execution of the judgment/decree and all the consequential orders made on 21.05.2025 and 09.07.2026 thereof in Marsabit Civil case No E003 of 2025 pending hearing and determination of the intended Appeal.
(b) That this Honourable court be pleased to issue further orders as it deems fit and just in the circumstances.
(c) That costs of this Application be provided for.
2. This application is supported by the grounds on the face of the said application and the supporting affidavit of the defendant/applicant dated 13th July 2026, while the plaintiff/respondent opposed this application through her replying affidavit dated 22 nd July 2026.
(i) The Application
3. The Appellant averred that judgement was entered as against him condemning him to pay Ksh 1,087,110.50/= together with cost and interest on 21.05.2025 and being dissatisfied by the said decision opted to file for review through his application dated 18.11.2025, which was heard and subsequently dismissed on 09.07.2026 and costs thereof assessed at Kshs 30,000/= .Further being dissatisfied by this subsequent ruling, he had opted to file an appeal at the court of appeal had had since lodged his Notice of Appeal dated 11.07.2026 and sought to be supplied with typed proceedings to pave way for filing of the substantive appeal.
4. The applicant further averred that the intended appeal was not frivolous and raised several arguable grounds of appeal, which he needed to ventilate and that there were real fear and apprehension that unless stay of execution was granted, the respondent would proceed to enforce the decree issued to his loss and detriment. He was also apprehensive that if the said decretal amount was paid out to the respondent, she would be unable to recover the said amount from her should the appeal succeed, and hence stood to suffer substantial loss and damage.
5. The applicant thus urged the court to grant the orders sought, and stated that he was willing to abide by the orders issued regarding security for due performance of the decree as may be ultimately binding upon him. Finally, the Applicant stated that this application had been filed promptly and that the Respondent would not suffer any prejudiced if orders sought were granted.
(ii) The Response
6. The plaintiff/Respondent opposed this application through her Replying Affidavit dated 22 nd July 2026, wherein she emphasized that this application was a ploy by the applicant to waste time and keep her away from enjoying the fruits of her judgement. After the initial judgment had been entered against the applicant, he had filed an application dated 10.06.2025 to set aside the said judgment, which application was heard on merit and dismissed on 28.08.2025.
7. The applicant then filed his second application dated 18.11.2025 to review the said ruling, which application too, was heard on merit and was eventually dismissed on 09.07.2026 with costs of Kshs 30,000/= . He had again returned before this court with this third application, which must be looked at in light of his previous conduct as it was not a bona fide attempt to preserve an appeal, but was a continuation of a deliberate pattern of delay aim at circumventing the respondent from enjoying the fruits of her judgement. She urged the court to consider her plight as she was an elderly woman, in the twilight days of her life and thus should not be prejudiced by unending vexatious litigation.
8. Further, it was her contention that the applicant had not shown, which substantial loss he would suffer, if the orders sought are not granted nor had he placed any evidence before the court to support his allegation that the appeal would be rendered nugatory if stay is not granted. Finally, the applicant had also alleged without proof that she would be unable to refund the decretal amount, should he succeed in his appeal, which was unlikely. Nevertheless, if the court was inclined to grant the orders sought, the respondent urged the court to direct the applicant to deposit the entire decretal sum in a joint interest earning account held in the names of both advocates herein within a specified period time, failure to which the said application would stand dismissed.
9. The respondent therefore strongly urged the court to find that this application lacked merit and prayed that it be dismissed with costs.
(iii). Analysis & Determination
10. I have carefully considered the Application, its Supporting Affidavit, the Respondent’s Replying Affidavit filed in opposition thereto. The only issue for determination is whether the Appellant has met the conditions necessary for the grant of stay pending appeal.
11. Stay of execution pending appeal is governed by Order 42 Rule 6 of the Civil Procedure Rules . It is evident from the said provision that power to grant stay of execution pending appeal is an exercise of discretion of the court on sufficient cause being shown by the Applicant that substantial loss may result if the orders are denied; the application should be made without undue delay and the court will impose such security for the due performance of any decree or order as may ultimately be binding on the Applicant.
12. As stated in the case of Amal Hauliers Limited Vs Abdulnasi Abukar Hassan (2017) eKLR which quoted with approval Butt Vs Rent Tribunal (1982) KLR 417 the guiding principles which the court should consider while determining an application of this nature. These were;
(a) The power of the court to grant or refuse an application for stay of execution is a discretionary power. The discretion should be exercised in such a way as not to prevent an appeal.
(b) 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 to be rendered nugatory should that appeal court reverse the judge’s discretion.
(c) A judge should not refuse 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) The court in exercising the discretion whether to grant (or) refuse an application for stay will consider the special circumstances of the cases and unique requirements. The special circumstances in this case were that there was a large amount of rent in dispute and the Appellant had an undoubted right of appeal.
(e) The court in exercising its powers under Order XLI rule 4(2) (b) of the Civil Procedure Rules can order security upon application by either party or on its own motion. Failure to put security for costs as ordered will cause the order for stay of execution to lapse.
(f) The Appellants finally averred that this court is clothed with very wide discretion to grant the orders sought under Section 3A as read together with Section 63(c) of the Civil Procedure Act.
13. The ruling appealed against was delivered on 9 th July, 2026. The notice of appeal and this application were filed on 13 th July 2026. This was within a period of less than seven (7) days from the date of judgment and thus it can be said that this appeal and this application have been filed timeously.
14. On the likelihood of suffering substantial loss, In the case of G. N. Muema P/A (516) Mt View Maternity & Nursing Home Vs Miriam Maalim Bishar & Another (2010) eKLR the court stated as follows;
“ It was the considered view of this court that substantial loss does not have to be a lot of money. It was sufficient if an applicant seeking a stay of execution demonstrated that it would have to go through hardship such as instituting legal proceedings to recover the decretal sum if paid to a respondent in the event his or her appeal was successful. Failure to recover such decretal sum would render his appeal nugatory if he or she was successful.”
15. 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.”
16. The decretal sum due herein is Kshs 1,087,110.50/= plus costs of the two dismissed application totaling to Kshs 60,000/= . The applicant has averred that should this sum be paid out and he succeed in his appeal he will be unable to recover the said amount. The respondent on the other hand has dismissed this averment as being speculative and is unsupported by evidence.
17. Guided by the above authorities and in the absence of the requisite proof from the Respondent that she is a person of means, I find that the Appellant has satisfied this court that he would suffer substantial loss if the entire decretal sum is paid to the Respondent before the appeal is heard and determined. The Appellant has therefore fulfilled this condition.
18. On the security, the court has to balance the interest of the Appellant who seeks to preserve the status quo pending hearing of the appeal and to ensure the appeal is not rendered nugatory and the interest of the Respondent who seeks to enjoy the fruits of her judgment. In other words, the court should not only consider the interest of the Appellant but also consider, in all fairness, the interest of the Respondent who has been denied the fruit of his judgment. See Attorney General Vs Halal Meat Produces Limited Civil Application No. Nairobi 270 of 2008; Kenya Shell Ltd Vs Kibiru & another (Supreme); Mukuma Vs Abuoga (1988) KLR 645.
19. The law is that where the Applicant succeeds, it should not be faced with a situation in which it would find itself unable to get back its money. Likewise, the Respondent who has a decree in her favour should not, if the applicant is eventually unsuccessful in its intended appeal, find it difficult or impossible to realize the decree. This is the cornerstone of the requirement for security.
20. This issue of adequacy of security was also dealt with in the Court of Appeal in Nduhiu Gitahi Vs Warugongo (1988) KLR 621; IKAR 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 guarantees 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 judgment has been given. It is subject to 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 issues pending in the appeal. For that purpose, it matters not whether the plaintiff are secured in one way rather than the other, it would be easier for the defendants or if for any reasons they would prefer to provide security by a bank guarantee rather than cash. There are absolutely no principles why they should not do so… The aim of the court in this case was to make sure, in an even-handed manner, that there would not be prejudiced and that the decretal sum would be available if required. The Respondent is not entitled, for instance, to make life difficult for the Applicant so as to tempt him into settling the appeal or will any party lose if the sum is actually paid with interest at court rates. Indeed, in this case there is less need to protect the defendant because nearly half the sum will have been paid and the balance was at one stage open to negotiation to reduce it.”
DISPOSTION
21. Taking all relevant factors into consideration and in order not to render the intended appeal illusory, I do grant stay of execution of the decree issued herein pending hearing and determination of the Appeal filed in the Court of Appeal.
22. The Appellant will deposit the entire decretal sum ( Kshs 1,087,110.50/=) plus costs awarded for the two application, (Kshs 60,000/=) total amount being Kshs 1,147,110.50/= in a joint interest earning account to be opened at KCB MARSABIT and/or ISIOLO, which account will be held under the joint names of counsels for the Appellant and respondent herein pending the hearing and determination of the appeal filed in the Court of Appeal.
23. That the said amount shall be deposited within the next 45 days from the date hereof and should the applicant fail to do so, this appeal will stand dismissed and the respondent will be at liberty to execute.
24. The costs of this Application will Abide the Appeal.
25. It is so ordered.
READ, SIGNED and DE LIVERED virtually at MARSABIT on this ……30th………. day of JULY, 2026.
FRANCIS RAYOLA OLEL
JUDGE
Delivered on the virtual platform, Teams this …30th…… day of JULY, 2026.
In the presence of;
……MR KIOGORA MUGAMBI…………….for Appellant
………………N/A………………….for Respondent
……………ABDOW…………………….Court Assistant
MARSABIT HCC NO E003 OF 2025 (OS)2