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Introduction
The Applicant’s Notice of Motion dated 11 th June 2025 seeks stay of execution of the judgment delivered on 06 th May 2025 in Keroka CMCC 104 of 2020 and stay of taxation of party and party costs pending appeal.
The Motion is supported by the Supporting Affidavit sworn on 11 th June 2025, while the Respondent opposes the Application through a Replying Affidavit sworn on 03 rd November 2025.
The Applicant filed written submissions dated 18 th October 2025; the Respondent filed submissions dated 03 rd November 2025.
The Applicant submits that the Respondent’s financial means are unknown to her and that substantial loss will result if execution is carried out. The Respondent on the other hand asserts that the Application is an attempt to delay the enjoyment of the fruits of the judgment, and that she is capable of refunding the decretal amount.
I have considered the Application, affidavits, submissions and authorities and two issues arise for determination:
Whether the Applicant satisfies the threshold for stay of execution pending appeal; and
Whether stay of taxation of costs should be granted.
Analysis
Order 42 Rule 6(2 ) of the Civil Procedure Rules provides the conditions for granting a stay of execution as follows:
“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;
(b) the application has been made without unreasonable delay; and
(c) such security as the court may order has been given by the applicant.”
The first requirement under Order 42 Rule 6(2) is that the application must be made without unreasonable delay. Judgment in Keroka CMCC 104 of 2020 was delivered on 06 th May 2025 in favour of the Respondent.
The Applicant’s motion dated 11 th June 2025 was filed a month after the judgment was delivered, a delay that is not adequately explained in the supporting affidavit. A delay of one month is however not unreasonable.
The Applicant argues that unless stay is granted, she will suffer substantial loss because the Respondent may be unable to refund the decretal sum if the appeal succeeds. The Respondent maintains that the Applicant has not produced evidence of substantial loss and that the allegations concerning her financial incapacity are speculative.
Under Order 42 Rule 6(2), the burden lies on the Applicant to demonstrate that substantial loss will occur unless stay is granted. Substantial loss is the central consideration, as held in James Wangalwa & Another v Agnes Naliaka Cheseto [2012] eKLR . The Court in Joseph Gachie t/a Joska Metal Works v Simon Ndeti Muema underscored that substantial loss is not established through bare assertions, and that an applicant must lay a factual foundation. However, the Court of Appeal in National Industrial Credit Bank Ltd v Aquinas Francis Wasike & Another [2006] eKLR clarified the evidential burdendynamics in such applications. The Court held that although the legal burden initially lies with the applicant, it is unreasonable to demand that the applicant prove the respondent’s financial status in detail because such information lies peculiarly within the respondent’s knowledge. Once the applicant expresses a reasonable fear that the respondent may be unable to refund the decretal sum, the evidential burden shifts to the respondent to demonstrate her financial ability.
In this case, the Applicant properly expressed apprehension regarding the Respondent’s ability to refund the decretal sum should the appeal succeed. That apprehension was neither remote nor frivolous. The burden therefore shifted to the Respondent to demonstrate her financial capacity.
The Respondent merely asserted that she is “a person of means” but offered no evidence documentary or otherwise of assets, income, business interests, or financial stability. In the absence of such proof, and applying the Court of Appeal’s reasoning in NIC Bank v Wasike , the Respondent failed to discharge the evidential burden.
In the circumstances, and guided by the shifting burden principle articulated by the Court of Appeal, I find that the Applicant has demonstrated substantial loss, as the risk of non-refund remains real and uncontroverted.
The Applicant states that her insurer is ready to deposit the entire decretal sum in a joint interest-earning account. The Respondent proposes partial release and partial deposit.
Security becomes relevant once the Court determines how best to preserve the appeal’s substratum. In this circumstance, given the contested positions on ability to refund, and applying the balancing approach endorsed in NIC Bank v Wasike , a deposit of the entire decretal sum is the most appropriate protective order.
The Applicant also seeks a stay of taxation pending appeal, arguing that taxation may prejudice the appellate process. The Respondent submits that taxation is not execution and cannot be stayed merely due to a pending appeal.
The Court of Appeal in Muku v Karl Salzmann Limited & Another [2024] KECA 554 clarified that stay of proceedings is a drastic remedy granted only in exceptional circumstances.
Taxation poses no risk to the integrity of the appeal and cannot, by its nature, render the appeal nugatory, being only a procedural step following judgment.
The Applicant has not demonstrated exceptional circumstances warranting stay. The prayer for stay of taxation is therefore without merite.
Disposition
From the foregoing analysis, I make the following orders;
There shall be stay of execution of the decree in Keroka CMCC 104 of 2020 pending appeal on condition that the Applicant shall deposit the entire decretal sum in court within seven (7) days from the date of this ruling.
In default of compliance with Order (1) above, the stay shall lapse automatically, and the Respondent shall be at liberty to proceed with execution
The prayer for stay of taxation proceedings is declined
The Applicant shall file and serve the Record of Appeal within thirty (30) days from the date of this ruling.
Costs of the Motion shall abide the outcome of the appeal.
Mention before the Deputy Registrar on 02 nd February 2026 to confirm filing and service of the record of appeal and for direction as to filing of submissions
Appearances
Court Assistant - Hilda
For Appellant - Ms. Ongwacho for KRK Advocates LLP
For Respondent - Mr. Omari for Ben. K. Gichana & Co. Advocates
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Introduction
The Applicant’s Notice of Motion dated 11 th June 2025 seeks stay of execution of the judgment delivered on 06 th May 2025 in Keroka CMCC 104 of 2020 and stay of taxation of party and party costs pending appeal.
The Motion is supported by the Supporting Affidavit sworn on 11 th June 2025, while the Respondent opposes the Application through a Replying Affidavit sworn on 03 rd November 2025.
The Applicant filed written submissions dated 18 th October 2025; the Respondent filed submissions dated 03 rd November 2025.
The Applicant submits that the Respondent’s financial means are unknown to her and that substantial loss will result if execution is carried out. The Respondent on the other hand asserts that the Application is an attempt to delay the enjoyment of the fruits of the judgment, and that she is capable of refunding the decretal amount.
I have considered the Application, affidavits, submissions and authorities and two issues arise for determination:
Whether the Applicant satisfies the threshold for stay of execution pending appeal; and
Whether stay of taxation of costs should be granted.
Analysis
Order 42 Rule 6(2 ) of the Civil Procedure Rules provides the conditions for granting a stay of execution as follows:
“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;
(b) the application has been made without unreasonable delay; and
(c) such security as the court may order has been given by the applicant.”
The first requirement under Order 42 Rule 6(2) is that the application must be made without unreasonable delay. Judgment in Keroka CMCC 104 of 2020 was delivered on 06 th May 2025 in favour of the Respondent.
The Applicant’s motion dated 11 th June 2025 was filed a month after the judgment was delivered, a delay that is not adequately explained in the supporting affidavit. A delay of one month is however not unreasonable.
The Applicant argues that unless stay is granted, she will suffer substantial loss because the Respondent may be unable to refund the decretal sum if the appeal succeeds. The Respondent maintains that the Applicant has not produced evidence of substantial loss and that the allegations concerning her financial incapacity are speculative.
Under Order 42 Rule 6(2), the burden lies on the Applicant to demonstrate that substantial loss will occur unless stay is granted. Substantial loss is the central consideration, as held in James Wangalwa & Another v Agnes Naliaka Cheseto [2012] eKLR . The Court in Joseph Gachie t/a Joska Metal Works v Simon Ndeti Muema underscored that substantial loss is not established through bare assertions, and that an applicant must lay a factual foundation. However, the Court of Appeal in National Industrial Credit Bank Ltd v Aquinas Francis Wasike & Another [2006] eKLR clarified the evidential burdendynamics in such applications. The Court held that although the legal burden initially lies with the applicant, it is unreasonable to demand that the applicant prove the respondent’s financial status in detail because such information lies peculiarly within the respondent’s knowledge. Once the applicant expresses a reasonable fear that the respondent may be unable to refund the decretal sum, the evidential burden shifts to the respondent to demonstrate her financial ability.
In this case, the Applicant properly expressed apprehension regarding the Respondent’s ability to refund the decretal sum should the appeal succeed. That apprehension was neither remote nor frivolous. The burden therefore shifted to the Respondent to demonstrate her financial capacity.
The Respondent merely asserted that she is “a person of means” but offered no evidence documentary or otherwise of assets, income, business interests, or financial stability. In the absence of such proof, and applying the Court of Appeal’s reasoning in NIC Bank v Wasike , the Respondent failed to discharge the evidential burden.
In the circumstances, and guided by the shifting burden principle articulated by the Court of Appeal, I find that the Applicant has demonstrated substantial loss, as the risk of non-refund remains real and uncontroverted.
The Applicant states that her insurer is ready to deposit the entire decretal sum in a joint interest-earning account. The Respondent proposes partial release and partial deposit.
Security becomes relevant once the Court determines how best to preserve the appeal’s substratum. In this circumstance, given the contested positions on ability to refund, and applying the balancing approach endorsed in NIC Bank v Wasike , a deposit of the entire decretal sum is the most appropriate protective order.
The Applicant also seeks a stay of taxation pending appeal, arguing that taxation may prejudice the appellate process. The Respondent submits that taxation is not execution and cannot be stayed merely due to a pending appeal.
The Court of Appeal in Muku v Karl Salzmann Limited & Another [2024] KECA 554 clarified that stay of proceedings is a drastic remedy granted only in exceptional circumstances.
Taxation poses no risk to the integrity of the appeal and cannot, by its nature, render the appeal nugatory, being only a procedural step following judgment.
The Applicant has not demonstrated exceptional circumstances warranting stay. The prayer for stay of taxation is therefore without merite.
Disposition
From the foregoing analysis, I make the following orders;
There shall be stay of execution of the decree in Keroka CMCC 104 of 2020 pending appeal on condition that the Applicant shall deposit the entire decretal sum in court within seven (7) days from the date of this ruling.
In default of compliance with Order (1) above, the stay shall lapse automatically, and the Respondent shall be at liberty to proceed with execution
The prayer for stay of taxation proceedings is declined
The Applicant shall file and serve the Record of Appeal within thirty (30) days from the date of this ruling.
Costs of the Motion shall abide the outcome of the appeal.
Mention before the Deputy Registrar on 02 nd February 2026 to confirm filing and service of the record of appeal and for direction as to filing of submissions
Appearances
Court Assistant - Hilda
For Appellant - Ms. Ongwacho for KRK Advocates LLP
For Respondent - Mr. Omari for Ben. K. Gichana & Co. Advocates
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