NATHANIEL MUTURI VS PAUL THIGA NDEGWA

2. The application is supported by the annexed affidavit of Nathaniel Muturi, the Appellant/Applicant, sworn on 30th September, 2025, where he  deponed that   he has filed a  Memorandum  of Appeal  having been  dissatisfied with the outcome in Nakuru Magistrates Court ELC Case No 88B of 2020.  It was his disposition that  the Respondent’s counsel had written to him a letter demanding the   payment of Kshs. 127, 455/=  while the Appeal  is pending..

3. The Applicant   urged the court to grant the order of stay of execution as prayed in the application.

4. Githui John, the Respondent’s counsel, filed a Replying Affidavit sworn on 3rd October, 2025, and  deponed that the only aspect of the decree that can be stayed is the decree on the taxed costs, and the application does not meet any of the conditions set out in Order 42 Rule 6 of the Civil Procedure Rules. Counsel deponed that the Memorandum of Appeal was filed on 29th September, 2024,   while this application was filed on 30th September, 2025. He  further stated that there is inordinate delay in filing the application, being more than a year after filing the Memorandum of Appeal.

5. It was the Respondent’s counsel''s deposition that the Applicant will not suffer any substantial loss in paying taxed costs, as the same is  monetary in nature. Counsel urged the court to order the applicant to deposit the sum of Ksh 127, 455/= in a joint account pending the hearing of the appeal if the court were to find merit in the application.

6. Mr. Omwanza, counsel for the Applicant, filed submissions dated 15th October, 2025,  and identified the following issues for determination:

a) Whether the Appellant/Applicant deserves stay of execution orders in the circumstances?

7. Counsel submitted that the Applicant stands to suffer irreparable harm if the actions of the Respondent continue, and that the  Appellant had filed a similar application upon lodging the appeal on 2nd August, 2024,  but the same was withdrawn on the ground that the  trial court was handling a similar application at the time.

8. Counsel submitted that later the trial court dismissed the application vide a ruling dated 9th October, 2024, but the status quo  obtaining had been  maintained, until the  Respondent  served a notice to show cause on the costs of suit. Further that the Respondent continued with construction at the suit premises and urged the court to allow the application as prayed.

9. Mr. Machoka, counsel for the Respondent,  informed the court on 28th October, 2025, that he had filed submissions, but the  court record shows that the submissions filed are dated 7th October, 2025,  which relate to the main appeal and address the issues raised in the grounds of appeal and the Appellant’s submissions to the Appeal.

10. The issue for determination is whether the Applicant  has met the threshold for the grant of  stay of execution orders as provided for under  Order 42 Rule 6 of the Civil Procedure Rules, which guides the court on whether to grant a  stay of execution or not.

11.   The Applicant filed a similar application  dated 2nd August 2024, whereby the court gave directions that the same be served within 7 days, and the  Respondent was to file a response within 7 days with a mention date on 14th October  2024. The Applicant later withdrew the Application on the grounds that the trial court was already dealing with an application for stay of execution.

12. The Applicant filed this Application on 30th September 2025 after the Application in the lower court had been dismissed. The Applicant filed a Memorandum of Appeal on 24th September 2024, which shows that the application was not filed timeously.  The Applicant was gambling by pursuing a stay of execution in parallel processes. The gamble did not pay off. The Applicant withdrew the application in this court to pursue the one in the trial court, which did not bear fruit as it was dismissed.

13.  In the case of Jaber Mohsen Ali & another v Priscillah Boit & another [2014] the court held as follows:

“The question that arises is whether this application has been filed after unreasonable delay. What is unreasonable delay is dependent on the surrounding circumstances of each case. Even one day after judgment could be unreasonable delay depending on the judgment of the court and any order given thereafter.”

14.  There was an unreasonable delay in filing this application, and the Applicant has not demonstrated the substantial loss that he will suffer if the application is not granted.  The Applicant claims that it would be unfair if he is made to pay the taxed costs of Ksh 127, 455/=. The decree is monetary in nature, and if the Appeal succeeds, then the Respondent can be ordered to refund the amount. Courts rarely grant a stay of execution of a money decree, but that is not to say that they will never grant a stay of execution of a money decree. Each case will depend on the circumstances at hand,

15.  I have considered the application and submissions by counsel and find that the Applicant has not satisfied the conditions set out in Order 42 rule 6 of the Civil Procedure Rules, as there was an unreasonable delay in filing the application.  The Applicant has also not demonstrated that he will suffer any substantial loss if he pays the decretal sum. The Application is therefore dismissed with costs to the Respondent.