RULING
1. This is a Ruling seeking a stay of execution by the Applicant, pending an Appeal.
Brief Facts
2. The Applicant (Savannah Land Developers Limited) brought the Notice of Motion dated 6th March 2025 seeking the following orders;
a) The Court to issue an exparte order staying execution of the Judgment and Decree issued by Justice Benjamin K. Njoroge dated 27th February 2025 pending the hearing and determination of the pending Appeal; and
b) The costs of this application be provided for.
3. The Application was supported by the Affidavit of Peter Kimund i sworn on 6th March 2025. He stated that following the Ruling of the Court on 27th February 2025, judgment was entered for Kshs.4,446,300 on Advocates costs. That the Applicant has opted to Appeal to the Court of Appeal against the said Ruling.
4. Therefore, there is a real and imminent threat of execution of the Judgment and Decree as against the Applicant unless the Court issues a stay of execution. Further, no prejudice will be suffered by the Respondent as the parties await the determination of the Court of Appeal, since in the unlikely event that the Appeal is unsuccessful, the Respondent shall be awarded interest.
5. In response, the Respondent filed the Replying Affidavit of Mumbi Mionki sworn on 27th March 2025. She averred that the Applicant has failed to satisfy the requirements that must be met by an Applicant seeking stay of execution as envisaged under Order 42 Rule 6 of the Civil Procedure Rules.
Issues for determination
6. Having considered the written submissions by the parties, the court frames only one issue for determination;
a) Whether a stay of execution order pending appeal should issue.
Analysis
7. The principles guiding the granting of orders of a stay of execution pending appeal are well settled. These principles are provided for under Order 42 Rule 6(2) of the Civil Procedure Rules which provides:
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
8. Therefore, under Order 42 Rule 6(2) of the Civil Procedure Rules , an Applicant should satisfy the Court that:
a) Substantial loss may result to him unless the order is made.
b) That the application has been made without unreasonable delay; and
c) The applicant has given such security as the court orders for the due performance of such decree or order as may ultimately be binding on him.
9. Substantial loss – the Applicant contended that it is likely to suffer irreparable harm if the Motion is not granted and the Appeal is successful. That it may not recover the sum of money paid out in satisfaction of the judgment. Furthermore, there is a likelihood of substantial loss if the Applicant is forced to pay the decretal award of Kshs.4,446,300 together with costs and interest. That its operations will be significantly impacted if a substantial sum of money is removed from its operational budget. On the other hand, the Respondent contends that substantial loss has not been demonstrated.
10. As to what substantial loss is, it was observed in James Wangalwa & Another v Agnes Naliaka Cheseto [2012] eKLR , 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 ... 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. The Court is of the considered view that the Applicant has made a case on the ground of substantial loss as its operations will be significantly be impacted.
12. Was the Application made without unreasonable delay? The Application before the Court is dated 6th March 2025, and the impugned Ruling was delivered on 27th February 2025. There was no delay in making this Application.
13. Lastly, on the issue of security, furnishing of security is key in getting orders of stay pending appeal. Reliance is made on the case of Mwaura Karuga t/a Limit Enterprises –vs- Kenya Bus Services Ltd & 4 others [2015] eKLR where it was held that;
“… the security must be one which shall achieve due performance of the decree which might ultimately be binding on the applicant. The rule does not, therefore, envisage just any security. The words ‘’ultimately be binding’ are deliberately used and are useful here, for they refer to the entire decree as will be payable at the time the appeal is lost. That is the presumption of law here. Therefore, the ultimate decree envisaged under Order 42 Rule 6 (2) (b) of the Civil Procedure Rules includes costs and interest on the judgment sum unless the latter two were not granted-which is seldom. The security to be given is measured on that yardstick.”
14. As to security of costs, the Court notes that the Applicant has not offered to make any provision for security for the due performance of the decree or for security for costs. The law is clear that the provision of security for the due performance of the decree is a crucial requirement in the granting of an order for a stay of execution. Evidently, the issue of security is discretionary and it is upon the court to determine the same.
15. The Court, in RWW vs EKW [2019] eKLR , considered the purpose of a stay of execution order pending Appeal, in the following words:
“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.”
16. Indeed, to grant or to refuse an application for stay of execution pending appeal is discretionary. The Court, when granting the stay, however, must balance the interests of the Appellant with those of the Respondent. The issue is whether there is just cause for depriving the Respondent of its right to enjoy its judgment.
17. Additionally, the right of Appeal must be balanced against an equally weighty, rigid right of the Plaintiff to enjoy the fruits of the judgment delivered in his favour. In the case of Samvir Trustee Limited v Guardian Bank Limited [2007] eKLR , the court stated: -
“The Court, in considering whether to grant or refuse an application for stay, is empowered to see whether there exist any special circumstances which can sway the discretion of the court in a particular manner. But the yardstick is for the court to balance or weigh the scales of justice by ensuring that an appeal is not rendered nugatory while at the same time ensuring that a successful party is not impeded from the enjoyment of the fruits of his judgment. It is a fundamental factor to bear in mind that a successful party is prima facie entitled to fruits of his judgment; hence, the consequence of a judgment is that it has defined the rights of a party with definitive conclusion.”
18. The upshot of the above is that there will be a stay of execution pending the said appeal on condition that the Applicant remits to the Respondent half of the decretal sum of Kshs.4,446,300.00 being a sum of Kshs.2,223,150.00 and the other half of the decretal sum be held as security in the form of a bank guarantee to the Court from a reputable bank within 90 days from the date hereof. In default, the Application for stay shall stand dismissed.
Determination
19. That the Applicant’s application dated 06th March, 2023 is allowed in the following terms;
(a) THAT the Court hereby issues an order staying execution of the Judgment and Decree issued by Justice Njoroge Benjamin K. dated 27th February 2025 pending the hearing and determination of the intended Appeal. This is on condition that the Applicant complies with the following orders; to remit a sum of Kenya Shillings Two Million Two Hundred and Twenty-Three and One hundred and Fifty (Kshs.2,223,150.00) directly to the Respondent being a half of the decretal sum, within 90 days from the date hereof. The Applicant to provide security for the other half of the decretal sum of Kenya Shillings Two Million Two Hundred and Twenty-Three and One hundred and Fifty (Kshs.2,223,150.00) in the form of a bank guarantee to the Court from a reputable bank within 90 days from the date hereof. In default, the Application for stay shall stand dismissed and the orders for stay granted herein shall stand vacated.
20. There shall be no orders as to costs.
21. It is so ordered.
Dated, Signed and Delivered at Milimani this 31st day of July, 2025.
Njoroge Benjamin K.
JUDGE
In the presence of
Mr. Mugo for the Appellant/Applicant
Mr. Khasogo for the Respondent
Mr. Amos
1. This is a Ruling seeking a stay of execution by the Applicant, pending an Appeal.
Brief Facts
2. The Applicant (Savannah Land Developers Limited) brought the Notice of Motion dated 6th March 2025 seeking the following orders;
a) The Court to issue an exparte order staying execution of the Judgment and Decree issued by Justice Benjamin K. Njoroge dated 27th February 2025 pending the hearing and determination of the pending Appeal; and
b) The costs of this application be provided for.
3. The Application was supported by the Affidavit of Peter Kimund i sworn on 6th March 2025. He stated that following the Ruling of the Court on 27th February 2025, judgment was entered for Kshs.4,446,300 on Advocates costs. That the Applicant has opted to Appeal to the Court of Appeal against the said Ruling.
4. Therefore, there is a real and imminent threat of execution of the Judgment and Decree as against the Applicant unless the Court issues a stay of execution. Further, no prejudice will be suffered by the Respondent as the parties await the determination of the Court of Appeal, since in the unlikely event that the Appeal is unsuccessful, the Respondent shall be awarded interest.
5. In response, the Respondent filed the Replying Affidavit of Mumbi Mionki sworn on 27th March 2025. She averred that the Applicant has failed to satisfy the requirements that must be met by an Applicant seeking stay of execution as envisaged under Order 42 Rule 6 of the Civil Procedure Rules.
Issues for determination
6. Having considered the written submissions by the parties, the court frames only one issue for determination;
a) Whether a stay of execution order pending appeal should issue.
Analysis
7. The principles guiding the granting of orders of a stay of execution pending appeal are well settled. These principles are provided for under Order 42 Rule 6(2) of the Civil Procedure Rules which provides:
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
8. Therefore, under Order 42 Rule 6(2) of the Civil Procedure Rules , an Applicant should satisfy the Court that:
a) Substantial loss may result to him unless the order is made.
b) That the application has been made without unreasonable delay; and
c) The applicant has given such security as the court orders for the due performance of such decree or order as may ultimately be binding on him.
9. Substantial loss – the Applicant contended that it is likely to suffer irreparable harm if the Motion is not granted and the Appeal is successful. That it may not recover the sum of money paid out in satisfaction of the judgment. Furthermore, there is a likelihood of substantial loss if the Applicant is forced to pay the decretal award of Kshs.4,446,300 together with costs and interest. That its operations will be significantly impacted if a substantial sum of money is removed from its operational budget. On the other hand, the Respondent contends that substantial loss has not been demonstrated.
10. As to what substantial loss is, it was observed in James Wangalwa & Another v Agnes Naliaka Cheseto [2012] eKLR , 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 ... 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. The Court is of the considered view that the Applicant has made a case on the ground of substantial loss as its operations will be significantly be impacted.
12. Was the Application made without unreasonable delay? The Application before the Court is dated 6th March 2025, and the impugned Ruling was delivered on 27th February 2025. There was no delay in making this Application.
13. Lastly, on the issue of security, furnishing of security is key in getting orders of stay pending appeal. Reliance is made on the case of Mwaura Karuga t/a Limit Enterprises –vs- Kenya Bus Services Ltd & 4 others [2015] eKLR where it was held that;
“… the security must be one which shall achieve due performance of the decree which might ultimately be binding on the applicant. The rule does not, therefore, envisage just any security. The words ‘’ultimately be binding’ are deliberately used and are useful here, for they refer to the entire decree as will be payable at the time the appeal is lost. That is the presumption of law here. Therefore, the ultimate decree envisaged under Order 42 Rule 6 (2) (b) of the Civil Procedure Rules includes costs and interest on the judgment sum unless the latter two were not granted-which is seldom. The security to be given is measured on that yardstick.”
14. As to security of costs, the Court notes that the Applicant has not offered to make any provision for security for the due performance of the decree or for security for costs. The law is clear that the provision of security for the due performance of the decree is a crucial requirement in the granting of an order for a stay of execution. Evidently, the issue of security is discretionary and it is upon the court to determine the same.
15. The Court, in RWW vs EKW [2019] eKLR , considered the purpose of a stay of execution order pending Appeal, in the following words:
“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.”
16. Indeed, to grant or to refuse an application for stay of execution pending appeal is discretionary. The Court, when granting the stay, however, must balance the interests of the Appellant with those of the Respondent. The issue is whether there is just cause for depriving the Respondent of its right to enjoy its judgment.
17. Additionally, the right of Appeal must be balanced against an equally weighty, rigid right of the Plaintiff to enjoy the fruits of the judgment delivered in his favour. In the case of Samvir Trustee Limited v Guardian Bank Limited [2007] eKLR , the court stated: -
“The Court, in considering whether to grant or refuse an application for stay, is empowered to see whether there exist any special circumstances which can sway the discretion of the court in a particular manner. But the yardstick is for the court to balance or weigh the scales of justice by ensuring that an appeal is not rendered nugatory while at the same time ensuring that a successful party is not impeded from the enjoyment of the fruits of his judgment. It is a fundamental factor to bear in mind that a successful party is prima facie entitled to fruits of his judgment; hence, the consequence of a judgment is that it has defined the rights of a party with definitive conclusion.”
18. The upshot of the above is that there will be a stay of execution pending the said appeal on condition that the Applicant remits to the Respondent half of the decretal sum of Kshs.4,446,300.00 being a sum of Kshs.2,223,150.00 and the other half of the decretal sum be held as security in the form of a bank guarantee to the Court from a reputable bank within 90 days from the date hereof. In default, the Application for stay shall stand dismissed.
Determination
19. That the Applicant’s application dated 06th March, 2023 is allowed in the following terms;
(a) THAT the Court hereby issues an order staying execution of the Judgment and Decree issued by Justice Njoroge Benjamin K. dated 27th February 2025 pending the hearing and determination of the intended Appeal. This is on condition that the Applicant complies with the following orders; to remit a sum of Kenya Shillings Two Million Two Hundred and Twenty-Three and One hundred and Fifty (Kshs.2,223,150.00) directly to the Respondent being a half of the decretal sum, within 90 days from the date hereof. The Applicant to provide security for the other half of the decretal sum of Kenya Shillings Two Million Two Hundred and Twenty-Three and One hundred and Fifty (Kshs.2,223,150.00) in the form of a bank guarantee to the Court from a reputable bank within 90 days from the date hereof. In default, the Application for stay shall stand dismissed and the orders for stay granted herein shall stand vacated.
20. There shall be no orders as to costs.
21. It is so ordered.
Dated, Signed and Delivered at Milimani this 31st day of July, 2025.
Njoroge Benjamin K.
JUDGE
In the presence of
Mr. Mugo for the Appellant/Applicant
Mr. Khasogo for the Respondent
Mr. Amos