A. Background
1. This application seeks a stay of execution of the decree issued on 14th July 2025 by Hon. S.N. Gatambia, delivered on 29th October 2025 in Mombasa SCCCOM Suit No. E268 of 2025 , pending the hearing and determination of the main appeal. The Applicant further seeks orders maintaining the status quo.
2. The application is supported by sixteen grounds, reiterated in the supporting affidavit sworn on 19th November 2025 by Cedella Otieno , in-house counsel for the Appellant.
3. The Appellant avers that they had previously filed an application on 16th September 2025 to set aside the ex-parte judgment to enable them to defend the claim. This application was dismissed on 29th October 2025, with the trial court disregarding the annexed draft Defence. Consequently, the Appellant claims they are at risk of execution without having been heard.
4. The Appellant states that the decretal sum is Kshs. 230,000 and not Kshs. 1,000,000, and they are willing to deposit the same. They further allege that the subject motor vehicle was valued and sold at its actual value in 2021. The Appellant contends that the appeal raises serious legal issues with high prospects of success, and that impending execution may render the appeal nugatory.
5. The Respondent filed grounds of opposition dated 2nd December 2025, asserting that the application is an abuse of court process and an embarrassment to justice. The Respondent contends that:
o The Appellant admitted the loan transaction;
o The Appellant admitted to selling the vehicle without notice;
o The Appellant failed to provide evidence of valuation and a statement of account; and
o The Appellant was served with notice of first mention in good time but failed to attend court.
6. The Respondent proposes that the decretal sum of Kshs. 1,000,000 be deposited in an escrow account jointly held by the parties’ advocates.
B. Issues for Determination
7. Having considered the pleadings and submissions filed on 22nd January 2026 (Appellant) and 9th February 2026 (Respondent), the Court identifies the following issues:a) Whether the Appellant has satisfied the threshold for a stay of execution of the decree dated 14th July 2025;b) Who is entitled to costs of this application.
C. Legal Principles
8. The discretion to grant a stay of execution is exercised sparingly. In Federal Commission of Taxation v Myer Emporium Ltd [1986] 160 CLR 220 , it was held:
“It is well established by authority that the discretion to order stay of proceedings is only exercised where special circumstances exist which justify departure from the ordinary rule that a successful litigant is entitled to the fruits of his litigation pending the determination of any appeal.”
9. Order 42 Rule 6(2) of the Civil Procedure Rules provides:
“No order for stay of execution shall be made 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.”
10. The High Court has consistently applied these principles, as reflected in cases including:
• James Wangalwa & Another v Agnes Naliaka Cheseto [2012] KEHC 1094 (KLR) ;
• Kiplagat Kotut v Rose Jebor Kipngok [2015] eKLR ;
• Kenya Commercial Bank Limited v Sun City Properties Ltd & 5 Others [2012] eKLR ;
• Kenya Shell Limited v Benjamin Karuga Kibiru [1986] KLR 410 .
11. The concept of “substantial loss” is central. As held in Kenya Shell Ltd , Platt JA stated:
“Substantial loss in its various forms is the cornerstone of the jurisdiction for granting stay. That is what has to be prevented.”
12. In Pan African Insurance Co. Ltd v International Air Transport Association, High Court No. 86 of 2006 , the Court emphasized that:
“The deponent should lay the basis upon which the court can find that the applicant would suffer substantial loss. Vague or general assertions are insufficient.”
13. Similarly, in Samvir Trustee Limited v Guardian Bank Ltd [2007] KEHC 2438 (KLR) , it was held:
“For the applicant to obtain a stay of execution, it must satisfy the court that substantial loss would result. Mere assertions are insufficient; there must be empirical or documentary evidence.”
D. Application to the Present Case
14. The Appellant claims that execution of the decree will cause substantial loss because the decretal sum exceeds the true value of the vehicle. However, the Appellant has not provided any valuation evidence or supporting documentary evidence to substantiate this claim.
15. The draft Defence annexed to the application does not quantify the loss with precision. The vehicle was sold in public auction on 25th November 2021, and no independent valuation has been filed.
16. While the appeal may raise issues of law, there is no credible evidence that the appeal would be rendered nugatory by execution, as the decretal sum can be recovered from the Respondent if the appeal succeeds, in line with Ann Wanjiru Waigwa & David Kinyua Muriuki v Joseph Kiragu Kibarua, Civil Appeal No. 92 of 2009 (High Court, Nyeri) , where Justice M.S.A. Makhandia observed:
“An appeal arising out of a money decree would rarely be rendered nugatory. The applicant’s fears must be substantiated by evidence that the respondent cannot refund the sum if the appeal succeeds.”
17. In the present case, the Appellant has not demonstrated that the Respondent is unable to refund the decretal sum, nor has the Appellant provided proper valuation of the vehicle.
18. Accordingly, the Court finds that the threshold for granting a stay of execution under Order 42 Rule 6(2) has not been met.
E. Costs
19. Costs follow the event under Section 27 of the Civil Procedure Act . Since the Appellant has not succeeded, the Respondent is entitled to costs of this application.
F. Orders
20. The application for stay of execution of the decree dated 14th July 2025 is dismissed .
21. The Respondent shall have costs of this application.
It is so ordered.
DATED, SIGNED AND DELIVERED IN OPEN COURT/ONLINE THROUGH MS TEAMS, THIS …19TH…… DAY OF ……MARCH… 2026.
HON. LADY JUSTICE W. K. MICHENI
JUDGE
In the presence of:
MS Nduku for the respondent
N/A BY APPLICANT
Bebora, Court Assistant
1. This application seeks a stay of execution of the decree issued on 14th July 2025 by Hon. S.N. Gatambia, delivered on 29th October 2025 in Mombasa SCCCOM Suit No. E268 of 2025 , pending the hearing and determination of the main appeal. The Applicant further seeks orders maintaining the status quo.
2. The application is supported by sixteen grounds, reiterated in the supporting affidavit sworn on 19th November 2025 by Cedella Otieno , in-house counsel for the Appellant.
3. The Appellant avers that they had previously filed an application on 16th September 2025 to set aside the ex-parte judgment to enable them to defend the claim. This application was dismissed on 29th October 2025, with the trial court disregarding the annexed draft Defence. Consequently, the Appellant claims they are at risk of execution without having been heard.
4. The Appellant states that the decretal sum is Kshs. 230,000 and not Kshs. 1,000,000, and they are willing to deposit the same. They further allege that the subject motor vehicle was valued and sold at its actual value in 2021. The Appellant contends that the appeal raises serious legal issues with high prospects of success, and that impending execution may render the appeal nugatory.
5. The Respondent filed grounds of opposition dated 2nd December 2025, asserting that the application is an abuse of court process and an embarrassment to justice. The Respondent contends that:
o The Appellant admitted the loan transaction;
o The Appellant admitted to selling the vehicle without notice;
o The Appellant failed to provide evidence of valuation and a statement of account; and
o The Appellant was served with notice of first mention in good time but failed to attend court.
6. The Respondent proposes that the decretal sum of Kshs. 1,000,000 be deposited in an escrow account jointly held by the parties’ advocates.
B. Issues for Determination
7. Having considered the pleadings and submissions filed on 22nd January 2026 (Appellant) and 9th February 2026 (Respondent), the Court identifies the following issues:a) Whether the Appellant has satisfied the threshold for a stay of execution of the decree dated 14th July 2025;b) Who is entitled to costs of this application.
C. Legal Principles
8. The discretion to grant a stay of execution is exercised sparingly. In Federal Commission of Taxation v Myer Emporium Ltd [1986] 160 CLR 220 , it was held:
“It is well established by authority that the discretion to order stay of proceedings is only exercised where special circumstances exist which justify departure from the ordinary rule that a successful litigant is entitled to the fruits of his litigation pending the determination of any appeal.”
9. Order 42 Rule 6(2) of the Civil Procedure Rules provides:
“No order for stay of execution shall be made 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.”
10. The High Court has consistently applied these principles, as reflected in cases including:
• James Wangalwa & Another v Agnes Naliaka Cheseto [2012] KEHC 1094 (KLR) ;
• Kiplagat Kotut v Rose Jebor Kipngok [2015] eKLR ;
• Kenya Commercial Bank Limited v Sun City Properties Ltd & 5 Others [2012] eKLR ;
• Kenya Shell Limited v Benjamin Karuga Kibiru [1986] KLR 410 .
11. The concept of “substantial loss” is central. As held in Kenya Shell Ltd , Platt JA stated:
“Substantial loss in its various forms is the cornerstone of the jurisdiction for granting stay. That is what has to be prevented.”
12. In Pan African Insurance Co. Ltd v International Air Transport Association, High Court No. 86 of 2006 , the Court emphasized that:
“The deponent should lay the basis upon which the court can find that the applicant would suffer substantial loss. Vague or general assertions are insufficient.”
13. Similarly, in Samvir Trustee Limited v Guardian Bank Ltd [2007] KEHC 2438 (KLR) , it was held:
“For the applicant to obtain a stay of execution, it must satisfy the court that substantial loss would result. Mere assertions are insufficient; there must be empirical or documentary evidence.”
D. Application to the Present Case
14. The Appellant claims that execution of the decree will cause substantial loss because the decretal sum exceeds the true value of the vehicle. However, the Appellant has not provided any valuation evidence or supporting documentary evidence to substantiate this claim.
15. The draft Defence annexed to the application does not quantify the loss with precision. The vehicle was sold in public auction on 25th November 2021, and no independent valuation has been filed.
16. While the appeal may raise issues of law, there is no credible evidence that the appeal would be rendered nugatory by execution, as the decretal sum can be recovered from the Respondent if the appeal succeeds, in line with Ann Wanjiru Waigwa & David Kinyua Muriuki v Joseph Kiragu Kibarua, Civil Appeal No. 92 of 2009 (High Court, Nyeri) , where Justice M.S.A. Makhandia observed:
“An appeal arising out of a money decree would rarely be rendered nugatory. The applicant’s fears must be substantiated by evidence that the respondent cannot refund the sum if the appeal succeeds.”
17. In the present case, the Appellant has not demonstrated that the Respondent is unable to refund the decretal sum, nor has the Appellant provided proper valuation of the vehicle.
18. Accordingly, the Court finds that the threshold for granting a stay of execution under Order 42 Rule 6(2) has not been met.
E. Costs
19. Costs follow the event under Section 27 of the Civil Procedure Act . Since the Appellant has not succeeded, the Respondent is entitled to costs of this application.
F. Orders
20. The application for stay of execution of the decree dated 14th July 2025 is dismissed .
21. The Respondent shall have costs of this application.
It is so ordered.
DATED, SIGNED AND DELIVERED IN OPEN COURT/ONLINE THROUGH MS TEAMS, THIS …19TH…… DAY OF ……MARCH… 2026.
HON. LADY JUSTICE W. K. MICHENI
JUDGE
In the presence of:
MS Nduku for the respondent
N/A BY APPLICANT
Bebora, Court Assistant