The history of this matter shows that after the lower court delivered its ruling dated 23-01-2025 which is being appealed, the appellant filed a notice of motion dated 20 th February 2025 seeking the following orders;
1. THAT the application be certified as urgent and heard on priority basis.
2. THAT this Honourable Court be pleased to issue an order for stay of proceedings in the Small Claims Court at Thika, case number SCCCOMM/E1016/2023, pending hearing and determination of this application and appeal.
3. THAT the costs of this application be provided for.
Thereafter, parties appeared before the Judge several times and in most of the occasions, the respondent complained of lack of service. The last appearance before the Judge was on 22-07-2025 when the respondent complained that the appellant’s counsel had failed to serve her and she had to pick documents from the court’s registry. The court noted concerns of the respondent and gave her fourteen days to file her submissions and placed the matter for mention on 21-08-2025. This file was placed before me on 11-09-2025 on which date the parties failed to appear and I reserved this matter for judgement today on assumption that what was being prosecuted was the main appeal.
From the above history and what I can see from the record, the court has never given directions on the disposal of the appeal. Actually, the appeal has never been admitted for hearing neither has the appellant filed a record of appeal. Although the submissions in the court file are on the main appeal, it is clear to me that the matter has not matured for hearing of the appeal. What was in the process of prosecution was the application dated 20-02-2025 and in my view, the applicant has not prosecuted her application and this court cannot do so on her behalf. Nevertheless, I will consider the application.
Conditions for granting an application for stay of proceedings or execution are well settled. The applicant must establish that she will suffer substantial loss unless the application is allowed, she must give security for due performance of the decree and the application must have been filed without inordinate delay.
It is observable that the application was seeking to stay proceedings in respect of the wrong file. The relevant lower court file was for claim number E1610 of 2022 while prayer 2 of the application talks of E1016/2023. Although the appellant was on 9-06-2025 granted leave to amend the memorandum of appeal and other documents to indicate the correct lower court file, she doesn’t seem to have given attention to the claim number shown in her application.
I have already stated that the applicant has not prosecuted her application. She has not made any submissions on substantial loss she is likely to suffer if the application is not granted neither has, she proposed any security for due performance of the decree. I note that the decretal amount is Kshs 347,777.00 which in my view is not so substantial that the appellant would suffer to an extent that she may not recover it in the event that her appeal succeeds. To demonstrate substantial loss, the applicant must show that the circumstances of the case are such that it will not be possible to recover or at least there will be difficulties in the appellant recovering the decretal sum if the prevailing status of execution or proceedings were to continue. In James Wangalwa & another v Agnes Naliaka Cheseto [2012] KEHC 1094 (KLR), it was held that;
‘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.”
I think I have said enough of the condition of substantial loss as it is not my business to establish the same on behalf of the appellant. Where the applicant fails to show substantial loss, it is not necessary for the court to venture into the other conditions as all the three conditions must go together or conjunctively. I am persuaded by the holding of Honourable Lady Justice C.W. Githua in Stephen Gakere Macharia v NIC Bank Limited [2019] KEHC 5208 (KLR) where she held that;
‘Having found that the applicant has failed to prove by evidence that he will suffer substantial loss and that his appeal will be rendered nugatory if orders of stay are denied and having not established that any special circumstances exist in his case that would warrant the exercise of the court’s discretion in his favour, I find that the applicant has failed to demonstrate that he is deserving of the orders sought.
Having arrived at the above conclusion, I do not find it necessary to inquire into the sufficiency or otherwise of the security the applicant had offered for the due performance of the decree.’
Based on what I have stated above, the application dated 20 th February 2025 is found lacking in merits and the same is hereby dismissed with costs to the respondent.
Dated signed and delivered at Nairobi this 13 th day of March 2026.
B.M. MUSYOKI
JUDGE OF THE HIGH COURT .
Ruling delivered in presence Mr. Nyoroku the appellant and in absence of the respondent.
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1. THAT the application be certified as urgent and heard on priority basis.
2. THAT this Honourable Court be pleased to issue an order for stay of proceedings in the Small Claims Court at Thika, case number SCCCOMM/E1016/2023, pending hearing and determination of this application and appeal.
3. THAT the costs of this application be provided for.
Thereafter, parties appeared before the Judge several times and in most of the occasions, the respondent complained of lack of service. The last appearance before the Judge was on 22-07-2025 when the respondent complained that the appellant’s counsel had failed to serve her and she had to pick documents from the court’s registry. The court noted concerns of the respondent and gave her fourteen days to file her submissions and placed the matter for mention on 21-08-2025. This file was placed before me on 11-09-2025 on which date the parties failed to appear and I reserved this matter for judgement today on assumption that what was being prosecuted was the main appeal.
From the above history and what I can see from the record, the court has never given directions on the disposal of the appeal. Actually, the appeal has never been admitted for hearing neither has the appellant filed a record of appeal. Although the submissions in the court file are on the main appeal, it is clear to me that the matter has not matured for hearing of the appeal. What was in the process of prosecution was the application dated 20-02-2025 and in my view, the applicant has not prosecuted her application and this court cannot do so on her behalf. Nevertheless, I will consider the application.
Conditions for granting an application for stay of proceedings or execution are well settled. The applicant must establish that she will suffer substantial loss unless the application is allowed, she must give security for due performance of the decree and the application must have been filed without inordinate delay.
It is observable that the application was seeking to stay proceedings in respect of the wrong file. The relevant lower court file was for claim number E1610 of 2022 while prayer 2 of the application talks of E1016/2023. Although the appellant was on 9-06-2025 granted leave to amend the memorandum of appeal and other documents to indicate the correct lower court file, she doesn’t seem to have given attention to the claim number shown in her application.
I have already stated that the applicant has not prosecuted her application. She has not made any submissions on substantial loss she is likely to suffer if the application is not granted neither has, she proposed any security for due performance of the decree. I note that the decretal amount is Kshs 347,777.00 which in my view is not so substantial that the appellant would suffer to an extent that she may not recover it in the event that her appeal succeeds. To demonstrate substantial loss, the applicant must show that the circumstances of the case are such that it will not be possible to recover or at least there will be difficulties in the appellant recovering the decretal sum if the prevailing status of execution or proceedings were to continue. In James Wangalwa & another v Agnes Naliaka Cheseto [2012] KEHC 1094 (KLR), it was held that;
‘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.”
I think I have said enough of the condition of substantial loss as it is not my business to establish the same on behalf of the appellant. Where the applicant fails to show substantial loss, it is not necessary for the court to venture into the other conditions as all the three conditions must go together or conjunctively. I am persuaded by the holding of Honourable Lady Justice C.W. Githua in Stephen Gakere Macharia v NIC Bank Limited [2019] KEHC 5208 (KLR) where she held that;
‘Having found that the applicant has failed to prove by evidence that he will suffer substantial loss and that his appeal will be rendered nugatory if orders of stay are denied and having not established that any special circumstances exist in his case that would warrant the exercise of the court’s discretion in his favour, I find that the applicant has failed to demonstrate that he is deserving of the orders sought.
Having arrived at the above conclusion, I do not find it necessary to inquire into the sufficiency or otherwise of the security the applicant had offered for the due performance of the decree.’
Based on what I have stated above, the application dated 20 th February 2025 is found lacking in merits and the same is hereby dismissed with costs to the respondent.
Dated signed and delivered at Nairobi this 13 th day of March 2026.
B.M. MUSYOKI
JUDGE OF THE HIGH COURT .
Ruling delivered in presence Mr. Nyoroku the appellant and in absence of the respondent.
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