1. Consolidated Bank of Kenya Limited, the 1st Defendant /Applicant, brought out the Notice of Motion dated 13th January 2026 brought pursuant to Order 42 Rule 6, Order 40 Rule 1 and 4 and Order 51 Rule 1 of the Civil Procedure Rules, seeking a stay of execution of the judgment and decree of the court delivered on 11th December 2025 where the court entered judgment for USD 1,334,000 against the Applicant less USD 213,375 already paid, USD 243,600 being the performance guarantee wrongfully called up, interest and costs.
2. The application is grounded in the face of the record and supported by the affidavit of Albert Anjichi. The Applicant avers that it lodged a Notice of Appeal dated 15th December 2025. The 30-day stay issued by the court has lapsed, leaving the Applicant exposed to immediate execution. The appeal is arguable and the applicant is ready to furnish security. Unless the Court grants a stay, the appeal will be rendered nugatory.
3. The Plaintiff/1st Respondent opposes the application through the replying affidavit of Achin Kumar Mittal sworn on 6th March 2026. He contends that the decretal sum does not constitute an extraordinary commercial exposure and that its financial statements demonstrate sufficient financial capacity to refund the decretal amount should the appeal succeed.
4. It maintains that, since 2012 and notwithstanding its alleged payment defaults, the Applicant has continued to use the Plaintiff’s licensed Core Banking System, including the 2022 upgrade, while paying only annual maintenance fees and failing to settle the licensing and implementation charges.
5. The Plaintiff further disputes that the intended appeal is arguable, asserting that the parties voluntarily entered into the relevant tripartite agreements and that the appeal effectively seeks to rewrite their contractual bargain. It denies having acted as an agent of the Indian company and avers that, despite the Applicant’s breach of the 2022 Tripartite Agreement, the Applicant wrongfully called up and recovered USD 243,600 under the Plaintiff’s Performance Guarantee while continuing to enjoy the benefit of the licensed system.
6. The Plaintiff also rejects the contention that the decretal sum may be repatriated outside the Court’s jurisdiction, emphasizing that judgment was entered in its favour and that there is no evidence that it would be unable to refund the decretal sum if required.
7. The Plaintiff consequently argues that withholding the fruits of judgment would occasion it greater prejudice, particularly when the Applicant continues to benefit from the system without fully discharging its contractual obligations, and maintains that the security offered by the Applicant does not cure that prejudice. On those grounds, the Plaintiff urges the Court to dismiss the application for stay of execution with costs.
8. The application was heard by way of written submissions.
Analysis and determination
9. The singular issue for determination is whether the Appellant/Applicants have established a valid basis for the Court to grant an order for stay of execution.
10. The test for the grant of a stay of execution pending appeal is as set out under Order 42, Rule 6 of the Civil Procedure Rules, which states that:
No order for stay of execution shall be made under sub-rule (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. The Applicant submits that they tend to suffer substantial loss unless the orders sought are granted as they will be required to pay the 1st Respondent the decretal sum, which if allowed will occasion a chain of events whose cumulative effect will irreversibly alter its financial and operational position. It argues that it is a public character and will be affected if it is allowed to pay the decretal amount. The Applicant also contends that the appeal is arguable and risks being rendered nugatory unless the orders sought are granted.
6. The 1st Respondent argues it is financially capable of repaying the decretal sum plus costs if the Applicant wins the appeal and therefore the appeal would not be rendered meaningless even if execution proceeds. It provided audited financial records to prove it financial capabilities.
7. I have perused the record, the judgment sought to be appealed against was delivered on 11th December 2025, and the present application was filed on 13th January 2026, shortly after expiry of the thirty-day temporary stay granted by the Court. In my view, the application was not brought with unreasonable delay. The first requirement is therefore satisfied.
8. The next issue for consideration is whether the Applicant has demonstrated substantial loss. In the present case, the applicant contends that immediate satisfaction of the decree would have significant financial and operational consequences and that, as a public institution, it would be prejudiced by payment of the substantial decretal sum before the appeal is determined. The Respondent, on the other hand, maintains that it is financially capable of refunding the decretal sum.
9. In Kenya Commercial Bank Limited v Robert Kimutai Korir [2018] KECA 861 (KLR) it was held that:
“Once an applicant has, on reasonable grounds, stated that a respondent has no ability to repay an amount of money in dispute or stated that the respondent’s financial status is unknown, the evidential burden shifts to the respondent to show that he is a person of means and that he would be in a position to refund the money if it is paid out to him and the appeal succeed.”
10. The 1st Respondent produced its audited financial statements in support of that assertion. The said statements disclose, inter alia, substantial turnover, profits and net assets and therefore lend weight to the Respondent's assertion that it is not a person of straw. Against that evidence, the Applicant has not demonstrated, with sufficient particularity, that payment of the decretal sum would place the money beyond recovery should its appeal succeed.
11. I am therefore not persuaded that substantial loss has been established.
12. The Applicant has also contended that its intended appeal is arguable. While that may be a relevant consideration in the overall exercise of judicial discretion, this Court is not necessary at this stage to undertake a detailed assessment of the merits of an appeal against its own judgment.
13. As regards security, the Applicant has expressed its willingness to furnish security as may be directed by the Court. That willingness satisfies the requirement that an applicant submit itself to appropriate terms. Security, however, is not a substitute for proof of substantial loss. The requirements under Order 42 Rule 6(2) must be considered together, and willingness to provide security cannot, standing alone, cure the failure to establish the substantial loss sought to be prevented.
14. In the circumstances, this Court is not satisfied that the Applicant has demonstrated that execution of the decree would create such a state of affairs as would substantially prejudice its appeal or render any eventual success hollow. The Respondent, on the other hand, has a valid judgment in its favour and has placed material before the Court demonstrating its financial capacity to meet an order for restitution should the appeal succeed. To grant a conditional stay in those circumstances would unjustifiably postpone the Respondent's enjoyment of the fruits of its judgment.
15. In the result, I find that the Notice of Motion dated 13th January 2026 is without merit. The same is hereby dismissed with costs to the Plaintiff/Respondent.
16. For the avoidance of doubt, any interim orders of stay of execution subsisting in favour of the Applicant are hereby discharged.
It is so ordered.
RULING delivered virtually, dated and signed at NAIROBI
This 1st day of September 2026.
PETER M. MULWA
JUDGE
In the presence of:
Ms. Essajee h/b for Mr. Khagran for Plaintiff
Mr. Omalla h/b for Mr. Mwangi for 1st Defendant/Applicant
Court Assistant: Sharon
2. The application is grounded in the face of the record and supported by the affidavit of Albert Anjichi. The Applicant avers that it lodged a Notice of Appeal dated 15th December 2025. The 30-day stay issued by the court has lapsed, leaving the Applicant exposed to immediate execution. The appeal is arguable and the applicant is ready to furnish security. Unless the Court grants a stay, the appeal will be rendered nugatory.
3. The Plaintiff/1st Respondent opposes the application through the replying affidavit of Achin Kumar Mittal sworn on 6th March 2026. He contends that the decretal sum does not constitute an extraordinary commercial exposure and that its financial statements demonstrate sufficient financial capacity to refund the decretal amount should the appeal succeed.
4. It maintains that, since 2012 and notwithstanding its alleged payment defaults, the Applicant has continued to use the Plaintiff’s licensed Core Banking System, including the 2022 upgrade, while paying only annual maintenance fees and failing to settle the licensing and implementation charges.
5. The Plaintiff further disputes that the intended appeal is arguable, asserting that the parties voluntarily entered into the relevant tripartite agreements and that the appeal effectively seeks to rewrite their contractual bargain. It denies having acted as an agent of the Indian company and avers that, despite the Applicant’s breach of the 2022 Tripartite Agreement, the Applicant wrongfully called up and recovered USD 243,600 under the Plaintiff’s Performance Guarantee while continuing to enjoy the benefit of the licensed system.
6. The Plaintiff also rejects the contention that the decretal sum may be repatriated outside the Court’s jurisdiction, emphasizing that judgment was entered in its favour and that there is no evidence that it would be unable to refund the decretal sum if required.
7. The Plaintiff consequently argues that withholding the fruits of judgment would occasion it greater prejudice, particularly when the Applicant continues to benefit from the system without fully discharging its contractual obligations, and maintains that the security offered by the Applicant does not cure that prejudice. On those grounds, the Plaintiff urges the Court to dismiss the application for stay of execution with costs.
8. The application was heard by way of written submissions.
Analysis and determination
9. The singular issue for determination is whether the Appellant/Applicants have established a valid basis for the Court to grant an order for stay of execution.
10. The test for the grant of a stay of execution pending appeal is as set out under Order 42, Rule 6 of the Civil Procedure Rules, which states that:
No order for stay of execution shall be made under sub-rule (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. The Applicant submits that they tend to suffer substantial loss unless the orders sought are granted as they will be required to pay the 1st Respondent the decretal sum, which if allowed will occasion a chain of events whose cumulative effect will irreversibly alter its financial and operational position. It argues that it is a public character and will be affected if it is allowed to pay the decretal amount. The Applicant also contends that the appeal is arguable and risks being rendered nugatory unless the orders sought are granted.
6. The 1st Respondent argues it is financially capable of repaying the decretal sum plus costs if the Applicant wins the appeal and therefore the appeal would not be rendered meaningless even if execution proceeds. It provided audited financial records to prove it financial capabilities.
7. I have perused the record, the judgment sought to be appealed against was delivered on 11th December 2025, and the present application was filed on 13th January 2026, shortly after expiry of the thirty-day temporary stay granted by the Court. In my view, the application was not brought with unreasonable delay. The first requirement is therefore satisfied.
8. The next issue for consideration is whether the Applicant has demonstrated substantial loss. In the present case, the applicant contends that immediate satisfaction of the decree would have significant financial and operational consequences and that, as a public institution, it would be prejudiced by payment of the substantial decretal sum before the appeal is determined. The Respondent, on the other hand, maintains that it is financially capable of refunding the decretal sum.
9. In Kenya Commercial Bank Limited v Robert Kimutai Korir [2018] KECA 861 (KLR) it was held that:
“Once an applicant has, on reasonable grounds, stated that a respondent has no ability to repay an amount of money in dispute or stated that the respondent’s financial status is unknown, the evidential burden shifts to the respondent to show that he is a person of means and that he would be in a position to refund the money if it is paid out to him and the appeal succeed.”
10. The 1st Respondent produced its audited financial statements in support of that assertion. The said statements disclose, inter alia, substantial turnover, profits and net assets and therefore lend weight to the Respondent's assertion that it is not a person of straw. Against that evidence, the Applicant has not demonstrated, with sufficient particularity, that payment of the decretal sum would place the money beyond recovery should its appeal succeed.
11. I am therefore not persuaded that substantial loss has been established.
12. The Applicant has also contended that its intended appeal is arguable. While that may be a relevant consideration in the overall exercise of judicial discretion, this Court is not necessary at this stage to undertake a detailed assessment of the merits of an appeal against its own judgment.
13. As regards security, the Applicant has expressed its willingness to furnish security as may be directed by the Court. That willingness satisfies the requirement that an applicant submit itself to appropriate terms. Security, however, is not a substitute for proof of substantial loss. The requirements under Order 42 Rule 6(2) must be considered together, and willingness to provide security cannot, standing alone, cure the failure to establish the substantial loss sought to be prevented.
14. In the circumstances, this Court is not satisfied that the Applicant has demonstrated that execution of the decree would create such a state of affairs as would substantially prejudice its appeal or render any eventual success hollow. The Respondent, on the other hand, has a valid judgment in its favour and has placed material before the Court demonstrating its financial capacity to meet an order for restitution should the appeal succeed. To grant a conditional stay in those circumstances would unjustifiably postpone the Respondent's enjoyment of the fruits of its judgment.
15. In the result, I find that the Notice of Motion dated 13th January 2026 is without merit. The same is hereby dismissed with costs to the Plaintiff/Respondent.
16. For the avoidance of doubt, any interim orders of stay of execution subsisting in favour of the Applicant are hereby discharged.
It is so ordered.
RULING delivered virtually, dated and signed at NAIROBI
This 1st day of September 2026.
PETER M. MULWA
JUDGE
In the presence of:
Ms. Essajee h/b for Mr. Khagran for Plaintiff
Mr. Omalla h/b for Mr. Mwangi for 1st Defendant/Applicant
Court Assistant: Sharon