RULING
Constitutionality of committal to civil jail
1.The court is called upon to determine whether the 3rd judgment debtor should be granted a stay of execution pending an appeal against the ruling of 1.4.2025 by the Deputy Registrar, Hon. Maureen Shimenga – SRM allowing the decree holder’s notice to show cause (NTSC) dated 21.2.2024.
2.This order is is sought in the Notice of Motion dated 23.4.2025 made primarily under Order 42 Rule 6 of the Civil Procedure Rules.
3.The application is supported by an affidavit sworn by the 3rd judgment debtor, Jane Muthoni Kinyua, on 23.4.2025 and written submissions dated 9.9.2025.
4.The decree holder opposed the application through a replying affidavit sworn by its acting head of legal services, Veronicah Mapesa Shiundu on 29.8.2025 and written submissions dated 22.9.2025.
Applicant’s case
5.The main ground is that the applicant has lodged an appeal against the deputy registrar’s ruling and that the appeal raises serious issues for consideration and determination. The appeal challenges the law of committal to civil jail for failure to pay the decretal sum as well as the procedure adopted.
6.The applicant stated that she had filed an affidavit of means which was not contested showing that she cannot pay the decretal sum within 30 days or whatsoever in a lump sum. The applicant is elderly and ailing civil servant, a nurse, is apprehensive that unless the orders sought are granted, she will suffer huge prejudice and her pending appeal rendered nugatory.
7.The applicant submitted that she has made a case for grant of stay. She relied on Butt v Rent Restriction Tribunal [1979] eKLR to assert that the court, in exercising discretion whether to grant stay ought to exercise it in a way so as not to prevent the appeal, if successful from being rendered nugatory.
8.The applicant asserted that she has demonstrated that her appeal is arguable and a sufficient cause. She relied on Mbukoni Services Ltd & Anor v Mutinda Reuben Nzzili and Anor, Machakos HC Misc. Appl. 77 of 2021 for the proposition that an arguable appeal is not one which must necessarily succeed, but one which ought to be argued fully before the court.
9.The applicant further asserted that unless stay is granted, the pending appeal will be rendered nugatory as the decree holder will proceed with speed to enforce the ruling appealed against, get the appellant arrested and serve civil jail while her appeal is pending.
10.The applicant went on to state that the decree holder’s replying affidavit deals with matters that ought to be argued at the hearing of the appeal.
Response
11.The respondent stated that the fact that the application was filed three weeks after the ruling undermines the claim of urgency. It contended that the applicant has not provided a sufficient explanation for the delay, raising questions about the urgency and the genuineness of the application.
12.The respondent asserted that the applicant has not met the requirement for the grant of stay under Order 42 Rule 6 of the Civil Procedure Rules. It argued that no evidence of substantial loss has been provided, and that mere inability to pay does not amount to irreparable harm.
13.The respondent highlighted that the applicant has failed to offer any security for the due performance of the decree which is mandatory. This is despite being held jointly liable with the 1st and 2nd defendants.
14.The respondent argued that granting stay at this stage would defeat the ends of justice considering that the judgment was delivered in2018 and the execution has been delayed due to the applicant’s dilatory conduct and refusal to settle the judgment debt.
15.The respondent questioned the veracity of the affidavit of means due to lack of evidence. It also questioned the applicant’s proposal to repay the debt at Kshs. 5,000 per month as it would take over 700 years to clear the debt.
16.The respondent referred to the historical background of the applicant evading her obligation to pay the judgment debt leading to an NTSC and warrants of arrest being issued after which she paid Kshs. 500,000/-.
17.The respondent relied on Chris Munga N. Bichage v Richard Nyagaka Tongi & 2 others [2013] eKLR, Ena Investment Limited v Bernard Ochau Mose & 2 others [2022] eKLR, Vishram Ravji Halai v Thornton & Turpin Civil Application No. Nairobi 15 of 1990 [1990] KLR 365 on the principles for granting stay of execution.
18.The respondent relied on Machira t/a Machira & Co. Advocates v East African Standard (No. 2) [2002] KLR 63 on the need for specificity, details and particulars when one cites substantial loss.
19.The respondent also cited RWW v EKW [2019] KEHC 6523 (KLR) and Republic v Registrar of Trase Unions, Ministry of Labour and Social Protection Ex Parte Kenya Union of Clinical Officers; Attorney General (Interested Party) [2021] KEELRC 1058 (KLR) the purpose of a stay pending appeal to preserve the subject matter in the dispute and on the need to balance the appellant’s right of appeal against the success of a litigant who should not be deprived of the fruits of his judgment.
20.On the need for security and its importance, the respondent cited Arun C. Sharma v Ashana Raikundalia t/a Raikundalia & Co. Advocates & 2 Others [2014] eKLR and Gianfranco Manenthi & Another v Africa Merchant Assurance Company Ltd [2019] KEHC 7586 (KLR).
Analysis and Determination
21.The principles for consideration in determining whether to grant a stay pending an appeal are well crystallized.
22.The court’s power to grant stay pending an appeal is discretionary. In exercising discretion, the court is guided by principles and not whims or caprice, considering the circumstances of a case.
23.The conditions that ought to be established are set out under Order 42 Rule 6 of the Civil Procedure Rules, which reads in part that: -
“No order for stay of execution shall be made under subrule (1) unless 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 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.”
24.The court’s power to grant stay pending an appeal is discretionary. In exercising discretion, the court is guided by principles and not whims or caprice, considering all the material circumstances of a case. Vishram Ravji Halai v Thornton & Turpin [supra]
25.The application must also be brought without undue delay. The application under consideration is dated 23.4.2025. It seeks stay of execution of the ruling of 1.4.2025. This is a period of about 22 days. In my view, there is no inordinate delay in filing the application.
26.The applicant submitted that she has demonstrated sufficient cause and that if a stay is not granted her appeal would be rendered nugatory. A major ground of appeal is that the DR failed to appreciate and uphold the principle that a person can only be committed to civil jail only where he has means to pay the debt but is unwilling to do so.
27.The applicant expressed her apprehension that if a stay is not granted then the decree holder will proceed to execute the ruling and she will be committed to civil jail hence render her appeal nugatory.
28.In my considered view, the applicant has demonstrated sufficient cause.
29.However, there is need to balance the applicant’s right of appeal with the respondent’s right to enjoy the fruits of its judgment. Machira t/a Machira & Co. Advocates v East African Standard [supra]
30.The respondent is concerned that the application for stay is a delaying tactic and that the applicant’s claim that she has no means to settle the decretal sum is not genuine. It highlighted the previous Kshs. 500,000 payment made by the applicant after issuance of warrants of arrest and committal to civil jail.
31.The applicant and the respondent have further both raised questions that will be appropriately considered and addressed in the appeal.
32.I do note that, the applicant did not indicate her willingness to provide security. Unless in exceptional circumstances, there is a need for provision of security to uphold the respondent’s right to execute the decree.
33.The court in its discretion determines suitable security depending on the circumstances of the case. Arun C. Sharma v Ashana Raikundalia t/a Raikundalia & Co. Advocates & 2 Others [supra]
34.Nonetheless, in determining the suitable security to be given, the court is aware that; “…insistence on a policy or practice that mandates security, for the entire decretal amount is likely to stifle possible appeals –especially in a Commercial Court, such as ours, where the underlying transactions typically tend to lead to colossal decretal amounts”. Sewankambo Dickson v Ziwa Abby HCT-00-CC MA 0178 of 2005, the High Court of Uganda at Kampala.
35.The decretal amount here is Kshs. 44,115,595/-. The debt is not disputed except the procedure in the hearing of the NTSC. A stay of execution in this context should not prejudice the rights of the decree holder to enjoy the fruits of its judgment. A proportioned balance is to attain equal protection and equal benefits of the law under article 27 of the Constitution.
Disposal
36.In conclusion, the court makes the following orders: -
(1) A stay of execution of the warrant of arrest against the applicant is issued pending the hearing of the appeal.
(2) In consideration of the stay in (1) above, the applicant shall pay the respondent Kshs. 5,000,000/- within 60 days of today.
(3) If the applicant fails to comply with these orders within the time allowed, the stay order will lapse automatically.
(4) Costs to be in the cause.
Dated, signed and delivered at Nairobi through Microsoft Teams online application this 12th day February, 2026
----------------------
F. Gikonyo M
Judge
In the presence of: -
Gaceru for 3rd Defendant/Applicant
Ms. Opondo for Plaintiff
CA Kinyua
Constitutionality of committal to civil jail
1.The court is called upon to determine whether the 3rd judgment debtor should be granted a stay of execution pending an appeal against the ruling of 1.4.2025 by the Deputy Registrar, Hon. Maureen Shimenga – SRM allowing the decree holder’s notice to show cause (NTSC) dated 21.2.2024.
2.This order is is sought in the Notice of Motion dated 23.4.2025 made primarily under Order 42 Rule 6 of the Civil Procedure Rules.
3.The application is supported by an affidavit sworn by the 3rd judgment debtor, Jane Muthoni Kinyua, on 23.4.2025 and written submissions dated 9.9.2025.
4.The decree holder opposed the application through a replying affidavit sworn by its acting head of legal services, Veronicah Mapesa Shiundu on 29.8.2025 and written submissions dated 22.9.2025.
Applicant’s case
5.The main ground is that the applicant has lodged an appeal against the deputy registrar’s ruling and that the appeal raises serious issues for consideration and determination. The appeal challenges the law of committal to civil jail for failure to pay the decretal sum as well as the procedure adopted.
6.The applicant stated that she had filed an affidavit of means which was not contested showing that she cannot pay the decretal sum within 30 days or whatsoever in a lump sum. The applicant is elderly and ailing civil servant, a nurse, is apprehensive that unless the orders sought are granted, she will suffer huge prejudice and her pending appeal rendered nugatory.
7.The applicant submitted that she has made a case for grant of stay. She relied on Butt v Rent Restriction Tribunal [1979] eKLR to assert that the court, in exercising discretion whether to grant stay ought to exercise it in a way so as not to prevent the appeal, if successful from being rendered nugatory.
8.The applicant asserted that she has demonstrated that her appeal is arguable and a sufficient cause. She relied on Mbukoni Services Ltd & Anor v Mutinda Reuben Nzzili and Anor, Machakos HC Misc. Appl. 77 of 2021 for the proposition that an arguable appeal is not one which must necessarily succeed, but one which ought to be argued fully before the court.
9.The applicant further asserted that unless stay is granted, the pending appeal will be rendered nugatory as the decree holder will proceed with speed to enforce the ruling appealed against, get the appellant arrested and serve civil jail while her appeal is pending.
10.The applicant went on to state that the decree holder’s replying affidavit deals with matters that ought to be argued at the hearing of the appeal.
Response
11.The respondent stated that the fact that the application was filed three weeks after the ruling undermines the claim of urgency. It contended that the applicant has not provided a sufficient explanation for the delay, raising questions about the urgency and the genuineness of the application.
12.The respondent asserted that the applicant has not met the requirement for the grant of stay under Order 42 Rule 6 of the Civil Procedure Rules. It argued that no evidence of substantial loss has been provided, and that mere inability to pay does not amount to irreparable harm.
13.The respondent highlighted that the applicant has failed to offer any security for the due performance of the decree which is mandatory. This is despite being held jointly liable with the 1st and 2nd defendants.
14.The respondent argued that granting stay at this stage would defeat the ends of justice considering that the judgment was delivered in2018 and the execution has been delayed due to the applicant’s dilatory conduct and refusal to settle the judgment debt.
15.The respondent questioned the veracity of the affidavit of means due to lack of evidence. It also questioned the applicant’s proposal to repay the debt at Kshs. 5,000 per month as it would take over 700 years to clear the debt.
16.The respondent referred to the historical background of the applicant evading her obligation to pay the judgment debt leading to an NTSC and warrants of arrest being issued after which she paid Kshs. 500,000/-.
17.The respondent relied on Chris Munga N. Bichage v Richard Nyagaka Tongi & 2 others [2013] eKLR, Ena Investment Limited v Bernard Ochau Mose & 2 others [2022] eKLR, Vishram Ravji Halai v Thornton & Turpin Civil Application No. Nairobi 15 of 1990 [1990] KLR 365 on the principles for granting stay of execution.
18.The respondent relied on Machira t/a Machira & Co. Advocates v East African Standard (No. 2) [2002] KLR 63 on the need for specificity, details and particulars when one cites substantial loss.
19.The respondent also cited RWW v EKW [2019] KEHC 6523 (KLR) and Republic v Registrar of Trase Unions, Ministry of Labour and Social Protection Ex Parte Kenya Union of Clinical Officers; Attorney General (Interested Party) [2021] KEELRC 1058 (KLR) the purpose of a stay pending appeal to preserve the subject matter in the dispute and on the need to balance the appellant’s right of appeal against the success of a litigant who should not be deprived of the fruits of his judgment.
20.On the need for security and its importance, the respondent cited Arun C. Sharma v Ashana Raikundalia t/a Raikundalia & Co. Advocates & 2 Others [2014] eKLR and Gianfranco Manenthi & Another v Africa Merchant Assurance Company Ltd [2019] KEHC 7586 (KLR).
Analysis and Determination
21.The principles for consideration in determining whether to grant a stay pending an appeal are well crystallized.
22.The court’s power to grant stay pending an appeal is discretionary. In exercising discretion, the court is guided by principles and not whims or caprice, considering the circumstances of a case.
23.The conditions that ought to be established are set out under Order 42 Rule 6 of the Civil Procedure Rules, which reads in part that: -
“No order for stay of execution shall be made under subrule (1) unless 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 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.”
24.The court’s power to grant stay pending an appeal is discretionary. In exercising discretion, the court is guided by principles and not whims or caprice, considering all the material circumstances of a case. Vishram Ravji Halai v Thornton & Turpin [supra]
25.The application must also be brought without undue delay. The application under consideration is dated 23.4.2025. It seeks stay of execution of the ruling of 1.4.2025. This is a period of about 22 days. In my view, there is no inordinate delay in filing the application.
26.The applicant submitted that she has demonstrated sufficient cause and that if a stay is not granted her appeal would be rendered nugatory. A major ground of appeal is that the DR failed to appreciate and uphold the principle that a person can only be committed to civil jail only where he has means to pay the debt but is unwilling to do so.
27.The applicant expressed her apprehension that if a stay is not granted then the decree holder will proceed to execute the ruling and she will be committed to civil jail hence render her appeal nugatory.
28.In my considered view, the applicant has demonstrated sufficient cause.
29.However, there is need to balance the applicant’s right of appeal with the respondent’s right to enjoy the fruits of its judgment. Machira t/a Machira & Co. Advocates v East African Standard [supra]
30.The respondent is concerned that the application for stay is a delaying tactic and that the applicant’s claim that she has no means to settle the decretal sum is not genuine. It highlighted the previous Kshs. 500,000 payment made by the applicant after issuance of warrants of arrest and committal to civil jail.
31.The applicant and the respondent have further both raised questions that will be appropriately considered and addressed in the appeal.
32.I do note that, the applicant did not indicate her willingness to provide security. Unless in exceptional circumstances, there is a need for provision of security to uphold the respondent’s right to execute the decree.
33.The court in its discretion determines suitable security depending on the circumstances of the case. Arun C. Sharma v Ashana Raikundalia t/a Raikundalia & Co. Advocates & 2 Others [supra]
34.Nonetheless, in determining the suitable security to be given, the court is aware that; “…insistence on a policy or practice that mandates security, for the entire decretal amount is likely to stifle possible appeals –especially in a Commercial Court, such as ours, where the underlying transactions typically tend to lead to colossal decretal amounts”. Sewankambo Dickson v Ziwa Abby HCT-00-CC MA 0178 of 2005, the High Court of Uganda at Kampala.
35.The decretal amount here is Kshs. 44,115,595/-. The debt is not disputed except the procedure in the hearing of the NTSC. A stay of execution in this context should not prejudice the rights of the decree holder to enjoy the fruits of its judgment. A proportioned balance is to attain equal protection and equal benefits of the law under article 27 of the Constitution.
Disposal
36.In conclusion, the court makes the following orders: -
(1) A stay of execution of the warrant of arrest against the applicant is issued pending the hearing of the appeal.
(2) In consideration of the stay in (1) above, the applicant shall pay the respondent Kshs. 5,000,000/- within 60 days of today.
(3) If the applicant fails to comply with these orders within the time allowed, the stay order will lapse automatically.
(4) Costs to be in the cause.
Dated, signed and delivered at Nairobi through Microsoft Teams online application this 12th day February, 2026
----------------------
F. Gikonyo M
Judge
In the presence of: -
Gaceru for 3rd Defendant/Applicant
Ms. Opondo for Plaintiff
CA Kinyua