1. The Applicant, Monica Nyokabi, approached this court through a Notice of Motion dated 21 st October, 2025 seeking orders thus;
1) Spent.
2) Spent.
3) That pending the hearing and determination of the Applicant’s appeal, there be a stay of execution of the judgment delivered on 30 th September, 2025, decree and all consequential orders arising therefrom in Nyahururu CMCC No. E160 of 2022; Florence Wairimu Kimani (suing as the legal representative of estate of George Kimani Wainaina (Deceased) -v- Monica Nyokabi & Another.
4) That the costs of this application be provided for.
2. The application is premised on grounds that; the Applicant being dissatisfied with the judgment delivered on 30 th September, 2025, has filed an appeal which raises salient pertinent issues of law and fact hence has overwhelming chances of success.
3. That the Respondent is not in any meaningful employment and with no known fixed place of abode, therefore, if the decretal sum or any part thereof is paid to the Respondent, there are no prospects of refund in event the appeal succeeds.
4. That the Applicant is willing to deposit ¼ decretal amount as a condition of stay and ready and willing to abide by any reasonable conditions as to security for the due performance of the decree; and, the Respondent would not suffer any prejudice if order sought are granted.
5. The application is opposed through a replying affidavit deposed by Florence Wairimu Kimani, the Respondent avers inter alia that the Applicant has not demonstrated any substantial loss that she is likely to suffer if the stay orders sought are not granted. That the intended appeal has no chance of success, it merely delays findings of fact which were soundly determined by the trial court after a full hearing and due consideration of all evidence presented.
6. That the allegation that the appeal would be rendered nugatory is unfounded, as she is a person of means and fully capable of refunding any sums should the appeal succeed and no evidence has been tendered to suggest otherwise.
7. That the Applicant’s proposal to pay only one-quarter (1/4) of the decretal amount as security is a mockery of justice as the sum is grossly inadequate, unreasonable, and does not reflect the magnitude of the decretal sum. And, that grant of stay on such flimsy and inadequate terms will deny her fruits of the judgment which is highly prejudicial.
8. The application was disposed through written submission that I have duly considered. Principles that guide the court in granting stay of execution are provided by Order 42 Rule 6(1) and (2) of the Civil Procedure Rules which provide thus;
1) No appeal or second appeal shall operate as a stay of execution or proceedings 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.
9. Granting of the order sought is discretionary. Reaching a decision whether prevailing circumstances justify granting the order must take into consideration guiding principles which the Applicant must demonstrate. In Butt v Rent Restriction Tribunal [1982] KLR it was held that;
“1. The power of the court to grant or refuse an application for a stay of execution is a discretionary power. The discretion should be exercised in such a way as not to prevent an appeal.
2. 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 that appeal court reverse the judge’s discretion.
3. 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.
4. The court in exercising its discretion whether to grant [or] refuse an application for stay will consider the special circumstances of the case 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.
5. 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.”
10. The Applicant urges that if the order sought is not granted she will suffer substantial loss as the Respondent is not in meaningful employment hence no prospects of refunding the sum. To this the Respondent argues that the allegation is unsubstantiated as no evidence has been tendered to support the claim. In James Wangalwa & Another v Agnes Naliaka Chesoto [2012] eKLR the court stated that;
“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.”
11. On the question of arguability of the matter, I note that no evidence was adduced by the Applicant in the lower court. But, in event the appeal succeeds the ability to repay the sum would be within the Respondent’s knowledge. It is urged that she is not in any meaningful employment but she dismisses the allegation. In Amal Hauliers Limited v Abdulnasir Hassan [2017] eKLR it was stated that;
“The Respondent has not disclosed any source of income that he would use to refund the Applicant the decretal amount should the appeal succeed. Indeed, the Respondent’s averment that he is in dire need of money to continue with treatment for the serious injuries received in the accident can only confirm that he will not be able to refund the decretal sum were the Applicant’s appeal to succeed. The Applicant has thus established that it will suffer substantial loss if the intended execution is not stayed.
12. On the condition whether there was no inordinate delay; the judgment was delivered on 30 th September, 2025 and the application was filed on 24 th October, 2025 prior to expiry of the right of appeal period granted. This cannot be dismissed as an inordinate delay.
13. As for the requisite security in such an application; In Arun C. Sharma v Ashana Raikundalia T/A A. Raikundalia & Co. Advocates & 4 Others [2014] KEHC 1412 (KLR) the court stated that;
“The purpose of the security needed under Order 42 is to guarantee the due performance of such decree or order as may ultimately be binding on the Applicant. It is not to punish the judgment-debtor. The alternative security being offered presents several problems. The first one-the security is owned by another person. This is a civil suit where the Applicants are judgment-debtors.”
14. Then in Boniface Kariuki Wahome v Peter Nziki Nyamai & Another [2019] KEHC (KLR) the court stated as follows;
“Where the applicant proposes to provide security as the Applicant has done, it is a mark of good faith that the application for stay is not just meant to deny the respondent the fruits of judgment. My view is that it is sufficient for the applicant to state that he is ready to provide security or to propose the kind of security but it is the discretion of the Court to determine the security. The Applicant has offered to provide security and has therefore satisfied this ground for stay.”
15. The Applicant is willing to furnish security, one-quarter (1/4) of the decretal sum but there is the question of the defence having not been mounted. However, it would be in the interest of justice that the appeal is not rendered nugatory. It has not been proposed where exactly the sum should be deposited. For that reason, I order thus;
a) Stay of execution of the judgment delivered on 30 th September, 2025, be and is hereby granted pending hearing and determination of the appeal on condition that the entire decretal sum be deposited in court within 30 days.
b) Costs of the application to abide the appeal.
HCCA E049 OF 2025 (RUL.) Page 2 of 2
1) Spent.
2) Spent.
3) That pending the hearing and determination of the Applicant’s appeal, there be a stay of execution of the judgment delivered on 30 th September, 2025, decree and all consequential orders arising therefrom in Nyahururu CMCC No. E160 of 2022; Florence Wairimu Kimani (suing as the legal representative of estate of George Kimani Wainaina (Deceased) -v- Monica Nyokabi & Another.
4) That the costs of this application be provided for.
2. The application is premised on grounds that; the Applicant being dissatisfied with the judgment delivered on 30 th September, 2025, has filed an appeal which raises salient pertinent issues of law and fact hence has overwhelming chances of success.
3. That the Respondent is not in any meaningful employment and with no known fixed place of abode, therefore, if the decretal sum or any part thereof is paid to the Respondent, there are no prospects of refund in event the appeal succeeds.
4. That the Applicant is willing to deposit ¼ decretal amount as a condition of stay and ready and willing to abide by any reasonable conditions as to security for the due performance of the decree; and, the Respondent would not suffer any prejudice if order sought are granted.
5. The application is opposed through a replying affidavit deposed by Florence Wairimu Kimani, the Respondent avers inter alia that the Applicant has not demonstrated any substantial loss that she is likely to suffer if the stay orders sought are not granted. That the intended appeal has no chance of success, it merely delays findings of fact which were soundly determined by the trial court after a full hearing and due consideration of all evidence presented.
6. That the allegation that the appeal would be rendered nugatory is unfounded, as she is a person of means and fully capable of refunding any sums should the appeal succeed and no evidence has been tendered to suggest otherwise.
7. That the Applicant’s proposal to pay only one-quarter (1/4) of the decretal amount as security is a mockery of justice as the sum is grossly inadequate, unreasonable, and does not reflect the magnitude of the decretal sum. And, that grant of stay on such flimsy and inadequate terms will deny her fruits of the judgment which is highly prejudicial.
8. The application was disposed through written submission that I have duly considered. Principles that guide the court in granting stay of execution are provided by Order 42 Rule 6(1) and (2) of the Civil Procedure Rules which provide thus;
1) No appeal or second appeal shall operate as a stay of execution or proceedings 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.
9. Granting of the order sought is discretionary. Reaching a decision whether prevailing circumstances justify granting the order must take into consideration guiding principles which the Applicant must demonstrate. In Butt v Rent Restriction Tribunal [1982] KLR it was held that;
“1. The power of the court to grant or refuse an application for a stay of execution is a discretionary power. The discretion should be exercised in such a way as not to prevent an appeal.
2. 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 that appeal court reverse the judge’s discretion.
3. 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.
4. The court in exercising its discretion whether to grant [or] refuse an application for stay will consider the special circumstances of the case 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.
5. 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.”
10. The Applicant urges that if the order sought is not granted she will suffer substantial loss as the Respondent is not in meaningful employment hence no prospects of refunding the sum. To this the Respondent argues that the allegation is unsubstantiated as no evidence has been tendered to support the claim. In James Wangalwa & Another v Agnes Naliaka Chesoto [2012] eKLR the court stated that;
“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.”
11. On the question of arguability of the matter, I note that no evidence was adduced by the Applicant in the lower court. But, in event the appeal succeeds the ability to repay the sum would be within the Respondent’s knowledge. It is urged that she is not in any meaningful employment but she dismisses the allegation. In Amal Hauliers Limited v Abdulnasir Hassan [2017] eKLR it was stated that;
“The Respondent has not disclosed any source of income that he would use to refund the Applicant the decretal amount should the appeal succeed. Indeed, the Respondent’s averment that he is in dire need of money to continue with treatment for the serious injuries received in the accident can only confirm that he will not be able to refund the decretal sum were the Applicant’s appeal to succeed. The Applicant has thus established that it will suffer substantial loss if the intended execution is not stayed.
12. On the condition whether there was no inordinate delay; the judgment was delivered on 30 th September, 2025 and the application was filed on 24 th October, 2025 prior to expiry of the right of appeal period granted. This cannot be dismissed as an inordinate delay.
13. As for the requisite security in such an application; In Arun C. Sharma v Ashana Raikundalia T/A A. Raikundalia & Co. Advocates & 4 Others [2014] KEHC 1412 (KLR) the court stated that;
“The purpose of the security needed under Order 42 is to guarantee the due performance of such decree or order as may ultimately be binding on the Applicant. It is not to punish the judgment-debtor. The alternative security being offered presents several problems. The first one-the security is owned by another person. This is a civil suit where the Applicants are judgment-debtors.”
14. Then in Boniface Kariuki Wahome v Peter Nziki Nyamai & Another [2019] KEHC (KLR) the court stated as follows;
“Where the applicant proposes to provide security as the Applicant has done, it is a mark of good faith that the application for stay is not just meant to deny the respondent the fruits of judgment. My view is that it is sufficient for the applicant to state that he is ready to provide security or to propose the kind of security but it is the discretion of the Court to determine the security. The Applicant has offered to provide security and has therefore satisfied this ground for stay.”
15. The Applicant is willing to furnish security, one-quarter (1/4) of the decretal sum but there is the question of the defence having not been mounted. However, it would be in the interest of justice that the appeal is not rendered nugatory. It has not been proposed where exactly the sum should be deposited. For that reason, I order thus;
a) Stay of execution of the judgment delivered on 30 th September, 2025, be and is hereby granted pending hearing and determination of the appeal on condition that the entire decretal sum be deposited in court within 30 days.
b) Costs of the application to abide the appeal.
HCCA E049 OF 2025 (RUL.) Page 2 of 2