REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KWALE
CIVIL SUIT NO. E012 OF 2026
(Coram: Andayi W. F. J.)
PATRICK MAKANDA MAKOKHA………………………...1 ST APPELLANT/APPLICANT
GREEN HAVEN PROPERTY COMPANY LTD…………………………2 ND APPELLANT
VERSUS
SANIA KADIR.................................................................................................1 ST RESPONDENT
KCB BANK KENYA LIMITED………………………………………………..2 ND RESPONDENT
BANK OF AFRICA……………………………………………………………….3 RD RESPONDENT
RULING
1. The 1 st appellants’/applicants’ Notice of Motion dated 19 th February 2026 seeks an order that pending the hearing and determination of the appeal filed herein there be a stay of execution and or in the alternative an order suspending the orders made on 18 th February 2026 by the Magistrate’s Court in Kwale Civil Case No. E167 of 2022 declaring the garnishee order nisi to have become garnishee order absolute in the garnishee proceedings before that court in execution of a judgment and decree issued on 18 th December 2025. Further that this court finds that the appellants’ Notice of Appointment, Grounds of Opposition, and application dated 17 th February 2026 were duly filed on 17 th February 2026 before the magistrate’s court through the Case Tracking System (CTS) and are properly on record and finally that the application dated 17 th February 2026 before the Magistrate’s court be heard and determined on its merits.
2. The application is brought under Article 159(2)(d) of the Constitution of Kenya 2010, Sections 1A,1B, 3 & 3A of the Civil Procedure Act (Cap. 21) Laws of Kenya, Orders 42 Rule 6 and 51 Rule 1 of the Civil Procedure Rules 2010.
3. The grounds in support of the application are set out on the face of the application and expounded in the supporting affidavit sworn on 19 th February 2026 of Patrick Makanda Makokha, the 1 st applicant/appellant. They are that the 1 st applicant has filed an appeal to this court through the memorandum dated 19 th February 2026. In the appeal he prays for orders that that this court sets aside the ruling and or order made by the Magistrate’s court declaring the Garnishee Order Nisi to have become absolute and further that this court finds and holds that the appellant’s documents filed on 17 th February 2025 were properly on record and to remit the matter back to the lower court for hearing and determination of the appellant’s application dated 17 th February 2025 before a different magistrate or in the alternative this court determines the application. Finally, that this court awards the costs of the appeal and the proceedings before the lower court to the appellant.
4. The 1 st appellant herein states further in the grounds that in response to the garnishee application by the respondents, he filed a Notice of appointment, Grounds of Opposition and an application dated 17 th February 2026 seeking to set aside the garnishee order nisi issued on 4 th February 2026. On the 18 th February 2026 the 1 st respondent’s garnishee application came up for inter partes hearing at the trial court. It is the applicants’ case that the trial court failed to recognize the documents filed by the appellants’ herein despite them being in the court’s electronic filing system the Case Tracking System (CTS) and issued orders declaring the garnishee order nisi as garnishee order absolute. The appellants aver that failure to recognize the documents filed and the application dated 17 th February 2026 has occasioned a miscarriage of justice.
5. In advancing the applicants’ case the deponent has annexed to the supporting affidavit the Notice of Appointment, Grounds of Opposition, and application dated 17 th February 2026 which were duly filed on 17 th February 2026 through the CTS as PMM-1 in the trial court case. A copy of the proceedings and order downloaded from the CTS are annexed as PMM-2. Copies of official receipts evidencing payments made to the Judiciary have been annexed as PMM-3 and a copy of the order on the application dated 18 th February 2026 has been annexed as PMM-4. The applicant thus prays that the application be allowed.
6. The application is opposed by the 1 st and 2 nd respondents. The 1 st respondent filed grounds of opposition dated 3 rd March 2026. It is the 1 st respondent’s case that if the garnishee order absolute is lifted the appellant will withdraw the funds preventing him from enjoying the fruits of his judgment. Further there has been delay in filing the application as judgment was delivered on 18 th December 2025. The 1 st respondent contends that there is no draft defense attached to the application and as such no triable issues have been raised. The 1 st respondent asked the court to dismiss the application with costs.
7. The 2 nd respondent on the other hand filed a replying affidavit sworn on 16 th March 2026 by Kester Nyakaru, its manager service quality and compliance Diani Branch tasked with legal compliance with court directives and orders. He deposes that it holds and operates the 2 nd appellant’s bank account No. 1289516383 and as at 5 th February 2026 the bank account had a credit balance of KShs. 225,000.015/= and the amount was locked upon receipt of the garnishee order nisi . A copy of the certificate of balance, locked bank statement and the garnishee order nisi were annexed as OO-1 and OO-2.
8. The deponent states that, the 2 nd respondent is a mere garnishee and is not privy to any dispute between the appellants and the 1 st respondent. However, the 2 nd respondent is willing to abide by the court’s directions regarding the bank account balance in the aforesaid bank account.
9. The application was disposed of by way of written submissions. Learned counsel for the appellants filed written submissions dated 27 th March 2026 together with a list of authorities of the same date. Learned counsel relied on the grounds, depositions in the affidavit together with the annexures. Counsel gave a chronology of the proceedings at the trial court as captured above.
10. Learned counsel for the applicant has made the submissions based on the grounds for grant of an interlocutory injunction and not for stay pending appeal as per the application herein.
11. Counsel placed reliance on the case of Nguruman Limited v Jan Bonde Nielsen & Others [2014] eKLR which set out the triple requirements for the grant of an interlocutory injunction where the applicant must show that he has established a prima facie case with a probability of success, demonstrate that he is likely to suffer irreparable injury if the injunction is not granted and that the balance of convenience tilts in the applicants’ favor. In defining a prima facie case counsel relied on the case of Mrao Ltd vs. First American Bank of Kenya Ltd & 2 Others [2003] KLR 125 .It was submitted that the applicant has a prima facie case with a probability of success. Learned counsel submitted that the applicant had filed a notice of appointment, grounds of opposition, and an application dated 17 th February 2026 in response to the garnishee application by the respondents. However, when the garnishee application came up for hearing the trial court indicated that no documents had been filed by the applicant herein and proceeded to declare the garnishee order absolute which infringed upon the right to fair hearing guaranteed under Article 50 of the Constitution.
12. On the grounds of irreparable harm and the concept of balance of convenience reliance was placed on the case of Pius Kipchirchir Kogo v Frank Kimeli Tenai [2018] KEELC 2424 (KLR) . Learned counsel submitted that the denial of the right to fair hearing was prejudicial to the applicants and they stand to suffer greatly if the application is not allowed.
13. Learned counsel for the applicant therefore prays that the application be allowed.
14. Learned counsel for the 2 nd respondent filed submissions dated 16 th March 2026. Counsel submitted that the 2 nd respondent is a mere garnishee and is not privy to the dispute between the appellants and the 1 st respondent. Further that the sum of Kshs. 225,000.15/= held by the 2 nd respondent in the 2 nd applicant’s bank account is not sufficient to settle the decretal amount.
15. In furthering the 2 nd respondent’s case counsel relied on the case of Lesinko Njoroge & Gathogo Advocates v Invesco Assurance Co; Co-operative Bank of Kenya (Garnishee) [2020] KEHC 8931 (KLR) where the court held that the object of garnishee proceedings is to enable a decree holder to reach a debt due to the judgment debtor from the garnishee as may be sufficient to satisfy a decree. It is therefore crucial to demonstrate that the garnishee is indebted to the judgment debtor. Learned counsel submitted that the available sums in the bank account No. 1289516383 of the 2 nd applicant is KShs. 225,000.15/= which is not sufficient to settle the decretal amount. Learned counsel concluded that the 2 nd respondent is ready and willing to comply with the court’s directions as issued.
16. The 1 st respondent did not file submissions to the application.
17. I have considered the Notice of Motion application the grounds in support thereof, the supporting affidavit as well as the grounds of opposition by the 1 st respondent and replying affidavit by the 2 nd respondent, and the submissions by learned counsels together with the authorities cited. The issues for determination are whether the application satisfies the criteria for grant of an order of stay pending appeal because that is the only prayer that this court can consider at this stage. The other prayers have to wait the determination of the appeal.
18. Stay of execution pending appeal to the High Court is provided for under Order 42 Rule 6 of the Civil Procedure Rules 2010 as follows;
“(1) No appeal or second appeal shall operate as a stay of execution or proceeding under a decree or order appealed from except in so far as the court appealed from may order but, the court appealed from may for sufficient cause order stay of execution of such decree or order, and whether the application for such stay shall have been granted or refused by the court appealed from, the court to which such appeal is preferred shall be at liberty, on application being made, to consider such application and to make such order thereon as may to it seem just, and any person aggrieved by an order of stay made by the court from whose decision the appeal is preferred may apply to the appellate court to have such order set aside.
(2) No order for stay of execution shall be made under subrule (1) 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.”
19. From the foregoing provisions of the law, the three conditions to be fulfilled for an order of stay pending appeal to issue are;
a. that substantial loss may result to the applicant unless the order is granted.
b. the application has been made without unreasonable delay.
c. security as the court orders for the due performance of the decree.
20. These principles are enunciated in the case of Butt v Rent Restriction Tribunal [1979] KECA 22 (KLR) where the Court of Appeal stated what ought to be considered in determining whether to grant or refuse stay of execution pending appeal. The court said that: -
a. The power of the court to grant or refuse an application for a stay of execution is discretionary; and the discretion should be exercised in such a way as not to prevent an appeal.
b. Secondly, the general principle in granting or refusing a stay is, if there is no other overwhelming hindrance, a stay must be granted so that an appeal may not be rendered nugatory should the appeal court reverse the judge’s discretion.
c. Thirdly, a judge should not refuse a stay if there are good grounds for granting it merely because, in his opinion, a better remedy may become available to the applicant at the end of the proceedings.
d. Finally, the Court in exercising its discretion whether to grant or refuse an application for stay will consider the special circumstances and its unique requirements. The court in exercising its powers under Order XLI Rule 4(2) (b) of the Civil Procedure Rules, can order security upon application by either party or on its own motion. Failure to put security as ordered will cause the order for stay of execution to lapse.
21. It has also been held that the court, in exercising its discretion, should also opt for the lower rather than the higher risk of injustice and finally the court will also consider the overriding objective as stipulated in sections 1A and 1B of the Civil Procedure Act, which the courts are enjoined to give effect to. (See Machira t/a Machira & Co Advocates v East African Standard [2002] KEHC 1167 (KLR) ).
22. As stated above, the applicant made submissions on prayers for grant of an interlocutory injunction and not stay of execution pending appeal. All the same the court has to consider whether the application meets the set down criteria even in the absence of the relevant submissions.
23. On the requirement that the application be made without unreasonable delay, the ruling the subject of the appeal was delivered on 18 th February 2026 and the memorandum of appeal as well as the present application were filed on 19 th February 2026. The appeal is not on the judgment delivered on 18 th December 2025 as submitted by learned counsel for the 1 st respondent. I am satisfied that the time was within the statutory period provided for filing an appeal to the High Court and that the application was filed within a reasonable time and therefore that condition is satisfied.
24. On the requirement to demonstrate substantial loss, the grounds offered by the applicant raise two issues. First, whereas on the face of it the application is for stay of execution of the ruling dated 18 th February 2026, effectively, the order of stay is against the judgment of the lower court delivered on 18 th December 2025 because it is from that judgment that the execution proceedings ensued and upon the garnishee nisi having been issued, the appellant/applicant herein was served and then filed his responses objecting to making the garnishee nisi garnishee absolute and seeking to set aside the default judgment on grounds that he had not been served with summons to enter appearance in the suit.
25. Demonstration of substantial loss is the cornerstone of an application for stay. I am guided by the Court of Appeal decision in the case of Kenya Shell Limited v Benjamin Karuga Kibiru & anorther [1986] KECA 94 (KLR) , where the Court held that:-
“If there is no evidence of substantial loss to the applicant, it would be a rare case when an appeal would be rendered nugatory by some other event. Substantial loss in its various forms, is the corner stone of both jurisdictions for granting a stay. That is what has to be prevented. Therefore, without this evidence it is difficult to see why the respondents should be kept out of their money.”
26. The substratum of the appeal filed herein is that the learned trial magistrate failed to consider the applicant’s documents that had been filed before the trial court in opposing the garnishee proceedings before making the order of garnishee nisi to be absolute. It is the applicant’s case that if the order of stay of execution is not granted, the applicant will lose the opportunity to challenge the default judgment and will lose the garnished amount without being heard. If that opportunity is lost, it means that the applicant will be condemned unheard, yet is not disputed that at the time the lower court made the order garnishing his bank account, he had already filed a response by way of grounds of opposition and an application to set aside the default judgment, both which were not considered by the lower court.
27. I find that the loss that would be suffered by the applicant through a failure to have an opportunity to present his case for the lower court to consider whether he had been served with summons to enter appearance is substantial and irreversible calls for this court’s intervention.
28. I am aware that the 1 st respondent has a decree in his favour and he is entitled to enjoy the fruits thereof. But the applicant also has her right to be heard both on the appeal and on her application to set aside the default judgment. The court has to balance the interests of the applicant who is seeking to preserve the status quo of not being garnished pending the hearing of the appeal so that his appeal is not rendered nugatory and the interest of the respondent who is seeking to enjoy the fruits of his judgment. Balancing the two competing interests in this case, I find that the loss that would be suffered by the applicant would be substantial if the stay order is not granted. I am satisfied that the second condition has also been satisfied.
29. On the next requirement for stay of execution to issue, that is, “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,” I note that the that the applicant has not offered to provide any security. However, the form of security to be provided is at the discretion of the court. In that case, whether or not the applicant has offered one, what is important is the satisfaction of that condition. The court will in its discretion set and require an appropriate security from the applicant, failure to which his application fails.
30. Consequently, I find that the application herein has merit and in order not to render the intended appeal nugatory, the application is granted on conditions. The application is allowed and stay of execution pending appeal is granted on the terms that stay of execution of the decree of the lower court in Magistrates Court in Kwale Civil Case No. E167 of 2022 is granted pending hearing and determination of the intended appeal herein on condition that the order of garnishee nisi made by the lower court shall remain in force pending the hearing and determination of the appeal.
31. The record of appeal shall be filed within 30 days from today.
32. Mention for directions on the hearing and disposal of the appeal 14 th October 2026.
33. Costs of the application will abide by the outcome of the appeal.
34. Orders accordingly.
Delivered, dated and signed at Kwale on the Virtual Platform, Microsoft Teams this 16 th day of September.
ANDAYI W. F.
JUDGE
In the presence of:
N/A for the applicants/appellants.
Munene for the 1 st respondent.
N/A for the 2 nd respondent.
Ummu: Court Assistant.
ANDAYI W. F.
JUDGE
1 | Page
IN THE HIGH COURT OF KENYA AT KWALE
CIVIL SUIT NO. E012 OF 2026
(Coram: Andayi W. F. J.)
PATRICK MAKANDA MAKOKHA………………………...1 ST APPELLANT/APPLICANT
GREEN HAVEN PROPERTY COMPANY LTD…………………………2 ND APPELLANT
VERSUS
SANIA KADIR.................................................................................................1 ST RESPONDENT
KCB BANK KENYA LIMITED………………………………………………..2 ND RESPONDENT
BANK OF AFRICA……………………………………………………………….3 RD RESPONDENT
RULING
1. The 1 st appellants’/applicants’ Notice of Motion dated 19 th February 2026 seeks an order that pending the hearing and determination of the appeal filed herein there be a stay of execution and or in the alternative an order suspending the orders made on 18 th February 2026 by the Magistrate’s Court in Kwale Civil Case No. E167 of 2022 declaring the garnishee order nisi to have become garnishee order absolute in the garnishee proceedings before that court in execution of a judgment and decree issued on 18 th December 2025. Further that this court finds that the appellants’ Notice of Appointment, Grounds of Opposition, and application dated 17 th February 2026 were duly filed on 17 th February 2026 before the magistrate’s court through the Case Tracking System (CTS) and are properly on record and finally that the application dated 17 th February 2026 before the Magistrate’s court be heard and determined on its merits.
2. The application is brought under Article 159(2)(d) of the Constitution of Kenya 2010, Sections 1A,1B, 3 & 3A of the Civil Procedure Act (Cap. 21) Laws of Kenya, Orders 42 Rule 6 and 51 Rule 1 of the Civil Procedure Rules 2010.
3. The grounds in support of the application are set out on the face of the application and expounded in the supporting affidavit sworn on 19 th February 2026 of Patrick Makanda Makokha, the 1 st applicant/appellant. They are that the 1 st applicant has filed an appeal to this court through the memorandum dated 19 th February 2026. In the appeal he prays for orders that that this court sets aside the ruling and or order made by the Magistrate’s court declaring the Garnishee Order Nisi to have become absolute and further that this court finds and holds that the appellant’s documents filed on 17 th February 2025 were properly on record and to remit the matter back to the lower court for hearing and determination of the appellant’s application dated 17 th February 2025 before a different magistrate or in the alternative this court determines the application. Finally, that this court awards the costs of the appeal and the proceedings before the lower court to the appellant.
4. The 1 st appellant herein states further in the grounds that in response to the garnishee application by the respondents, he filed a Notice of appointment, Grounds of Opposition and an application dated 17 th February 2026 seeking to set aside the garnishee order nisi issued on 4 th February 2026. On the 18 th February 2026 the 1 st respondent’s garnishee application came up for inter partes hearing at the trial court. It is the applicants’ case that the trial court failed to recognize the documents filed by the appellants’ herein despite them being in the court’s electronic filing system the Case Tracking System (CTS) and issued orders declaring the garnishee order nisi as garnishee order absolute. The appellants aver that failure to recognize the documents filed and the application dated 17 th February 2026 has occasioned a miscarriage of justice.
5. In advancing the applicants’ case the deponent has annexed to the supporting affidavit the Notice of Appointment, Grounds of Opposition, and application dated 17 th February 2026 which were duly filed on 17 th February 2026 through the CTS as PMM-1 in the trial court case. A copy of the proceedings and order downloaded from the CTS are annexed as PMM-2. Copies of official receipts evidencing payments made to the Judiciary have been annexed as PMM-3 and a copy of the order on the application dated 18 th February 2026 has been annexed as PMM-4. The applicant thus prays that the application be allowed.
6. The application is opposed by the 1 st and 2 nd respondents. The 1 st respondent filed grounds of opposition dated 3 rd March 2026. It is the 1 st respondent’s case that if the garnishee order absolute is lifted the appellant will withdraw the funds preventing him from enjoying the fruits of his judgment. Further there has been delay in filing the application as judgment was delivered on 18 th December 2025. The 1 st respondent contends that there is no draft defense attached to the application and as such no triable issues have been raised. The 1 st respondent asked the court to dismiss the application with costs.
7. The 2 nd respondent on the other hand filed a replying affidavit sworn on 16 th March 2026 by Kester Nyakaru, its manager service quality and compliance Diani Branch tasked with legal compliance with court directives and orders. He deposes that it holds and operates the 2 nd appellant’s bank account No. 1289516383 and as at 5 th February 2026 the bank account had a credit balance of KShs. 225,000.015/= and the amount was locked upon receipt of the garnishee order nisi . A copy of the certificate of balance, locked bank statement and the garnishee order nisi were annexed as OO-1 and OO-2.
8. The deponent states that, the 2 nd respondent is a mere garnishee and is not privy to any dispute between the appellants and the 1 st respondent. However, the 2 nd respondent is willing to abide by the court’s directions regarding the bank account balance in the aforesaid bank account.
9. The application was disposed of by way of written submissions. Learned counsel for the appellants filed written submissions dated 27 th March 2026 together with a list of authorities of the same date. Learned counsel relied on the grounds, depositions in the affidavit together with the annexures. Counsel gave a chronology of the proceedings at the trial court as captured above.
10. Learned counsel for the applicant has made the submissions based on the grounds for grant of an interlocutory injunction and not for stay pending appeal as per the application herein.
11. Counsel placed reliance on the case of Nguruman Limited v Jan Bonde Nielsen & Others [2014] eKLR which set out the triple requirements for the grant of an interlocutory injunction where the applicant must show that he has established a prima facie case with a probability of success, demonstrate that he is likely to suffer irreparable injury if the injunction is not granted and that the balance of convenience tilts in the applicants’ favor. In defining a prima facie case counsel relied on the case of Mrao Ltd vs. First American Bank of Kenya Ltd & 2 Others [2003] KLR 125 .It was submitted that the applicant has a prima facie case with a probability of success. Learned counsel submitted that the applicant had filed a notice of appointment, grounds of opposition, and an application dated 17 th February 2026 in response to the garnishee application by the respondents. However, when the garnishee application came up for hearing the trial court indicated that no documents had been filed by the applicant herein and proceeded to declare the garnishee order absolute which infringed upon the right to fair hearing guaranteed under Article 50 of the Constitution.
12. On the grounds of irreparable harm and the concept of balance of convenience reliance was placed on the case of Pius Kipchirchir Kogo v Frank Kimeli Tenai [2018] KEELC 2424 (KLR) . Learned counsel submitted that the denial of the right to fair hearing was prejudicial to the applicants and they stand to suffer greatly if the application is not allowed.
13. Learned counsel for the applicant therefore prays that the application be allowed.
14. Learned counsel for the 2 nd respondent filed submissions dated 16 th March 2026. Counsel submitted that the 2 nd respondent is a mere garnishee and is not privy to the dispute between the appellants and the 1 st respondent. Further that the sum of Kshs. 225,000.15/= held by the 2 nd respondent in the 2 nd applicant’s bank account is not sufficient to settle the decretal amount.
15. In furthering the 2 nd respondent’s case counsel relied on the case of Lesinko Njoroge & Gathogo Advocates v Invesco Assurance Co; Co-operative Bank of Kenya (Garnishee) [2020] KEHC 8931 (KLR) where the court held that the object of garnishee proceedings is to enable a decree holder to reach a debt due to the judgment debtor from the garnishee as may be sufficient to satisfy a decree. It is therefore crucial to demonstrate that the garnishee is indebted to the judgment debtor. Learned counsel submitted that the available sums in the bank account No. 1289516383 of the 2 nd applicant is KShs. 225,000.15/= which is not sufficient to settle the decretal amount. Learned counsel concluded that the 2 nd respondent is ready and willing to comply with the court’s directions as issued.
16. The 1 st respondent did not file submissions to the application.
17. I have considered the Notice of Motion application the grounds in support thereof, the supporting affidavit as well as the grounds of opposition by the 1 st respondent and replying affidavit by the 2 nd respondent, and the submissions by learned counsels together with the authorities cited. The issues for determination are whether the application satisfies the criteria for grant of an order of stay pending appeal because that is the only prayer that this court can consider at this stage. The other prayers have to wait the determination of the appeal.
18. Stay of execution pending appeal to the High Court is provided for under Order 42 Rule 6 of the Civil Procedure Rules 2010 as follows;
“(1) No appeal or second appeal shall operate as a stay of execution or proceeding under a decree or order appealed from except in so far as the court appealed from may order but, the court appealed from may for sufficient cause order stay of execution of such decree or order, and whether the application for such stay shall have been granted or refused by the court appealed from, the court to which such appeal is preferred shall be at liberty, on application being made, to consider such application and to make such order thereon as may to it seem just, and any person aggrieved by an order of stay made by the court from whose decision the appeal is preferred may apply to the appellate court to have such order set aside.
(2) No order for stay of execution shall be made under subrule (1) 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.”
19. From the foregoing provisions of the law, the three conditions to be fulfilled for an order of stay pending appeal to issue are;
a. that substantial loss may result to the applicant unless the order is granted.
b. the application has been made without unreasonable delay.
c. security as the court orders for the due performance of the decree.
20. These principles are enunciated in the case of Butt v Rent Restriction Tribunal [1979] KECA 22 (KLR) where the Court of Appeal stated what ought to be considered in determining whether to grant or refuse stay of execution pending appeal. The court said that: -
a. The power of the court to grant or refuse an application for a stay of execution is discretionary; and the discretion should be exercised in such a way as not to prevent an appeal.
b. Secondly, the general principle in granting or refusing a stay is, if there is no other overwhelming hindrance, a stay must be granted so that an appeal may not be rendered nugatory should the appeal court reverse the judge’s discretion.
c. Thirdly, a judge should not refuse a stay if there are good grounds for granting it merely because, in his opinion, a better remedy may become available to the applicant at the end of the proceedings.
d. Finally, the Court in exercising its discretion whether to grant or refuse an application for stay will consider the special circumstances and its unique requirements. The court in exercising its powers under Order XLI Rule 4(2) (b) of the Civil Procedure Rules, can order security upon application by either party or on its own motion. Failure to put security as ordered will cause the order for stay of execution to lapse.
21. It has also been held that the court, in exercising its discretion, should also opt for the lower rather than the higher risk of injustice and finally the court will also consider the overriding objective as stipulated in sections 1A and 1B of the Civil Procedure Act, which the courts are enjoined to give effect to. (See Machira t/a Machira & Co Advocates v East African Standard [2002] KEHC 1167 (KLR) ).
22. As stated above, the applicant made submissions on prayers for grant of an interlocutory injunction and not stay of execution pending appeal. All the same the court has to consider whether the application meets the set down criteria even in the absence of the relevant submissions.
23. On the requirement that the application be made without unreasonable delay, the ruling the subject of the appeal was delivered on 18 th February 2026 and the memorandum of appeal as well as the present application were filed on 19 th February 2026. The appeal is not on the judgment delivered on 18 th December 2025 as submitted by learned counsel for the 1 st respondent. I am satisfied that the time was within the statutory period provided for filing an appeal to the High Court and that the application was filed within a reasonable time and therefore that condition is satisfied.
24. On the requirement to demonstrate substantial loss, the grounds offered by the applicant raise two issues. First, whereas on the face of it the application is for stay of execution of the ruling dated 18 th February 2026, effectively, the order of stay is against the judgment of the lower court delivered on 18 th December 2025 because it is from that judgment that the execution proceedings ensued and upon the garnishee nisi having been issued, the appellant/applicant herein was served and then filed his responses objecting to making the garnishee nisi garnishee absolute and seeking to set aside the default judgment on grounds that he had not been served with summons to enter appearance in the suit.
25. Demonstration of substantial loss is the cornerstone of an application for stay. I am guided by the Court of Appeal decision in the case of Kenya Shell Limited v Benjamin Karuga Kibiru & anorther [1986] KECA 94 (KLR) , where the Court held that:-
“If there is no evidence of substantial loss to the applicant, it would be a rare case when an appeal would be rendered nugatory by some other event. Substantial loss in its various forms, is the corner stone of both jurisdictions for granting a stay. That is what has to be prevented. Therefore, without this evidence it is difficult to see why the respondents should be kept out of their money.”
26. The substratum of the appeal filed herein is that the learned trial magistrate failed to consider the applicant’s documents that had been filed before the trial court in opposing the garnishee proceedings before making the order of garnishee nisi to be absolute. It is the applicant’s case that if the order of stay of execution is not granted, the applicant will lose the opportunity to challenge the default judgment and will lose the garnished amount without being heard. If that opportunity is lost, it means that the applicant will be condemned unheard, yet is not disputed that at the time the lower court made the order garnishing his bank account, he had already filed a response by way of grounds of opposition and an application to set aside the default judgment, both which were not considered by the lower court.
27. I find that the loss that would be suffered by the applicant through a failure to have an opportunity to present his case for the lower court to consider whether he had been served with summons to enter appearance is substantial and irreversible calls for this court’s intervention.
28. I am aware that the 1 st respondent has a decree in his favour and he is entitled to enjoy the fruits thereof. But the applicant also has her right to be heard both on the appeal and on her application to set aside the default judgment. The court has to balance the interests of the applicant who is seeking to preserve the status quo of not being garnished pending the hearing of the appeal so that his appeal is not rendered nugatory and the interest of the respondent who is seeking to enjoy the fruits of his judgment. Balancing the two competing interests in this case, I find that the loss that would be suffered by the applicant would be substantial if the stay order is not granted. I am satisfied that the second condition has also been satisfied.
29. On the next requirement for stay of execution to issue, that is, “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,” I note that the that the applicant has not offered to provide any security. However, the form of security to be provided is at the discretion of the court. In that case, whether or not the applicant has offered one, what is important is the satisfaction of that condition. The court will in its discretion set and require an appropriate security from the applicant, failure to which his application fails.
30. Consequently, I find that the application herein has merit and in order not to render the intended appeal nugatory, the application is granted on conditions. The application is allowed and stay of execution pending appeal is granted on the terms that stay of execution of the decree of the lower court in Magistrates Court in Kwale Civil Case No. E167 of 2022 is granted pending hearing and determination of the intended appeal herein on condition that the order of garnishee nisi made by the lower court shall remain in force pending the hearing and determination of the appeal.
31. The record of appeal shall be filed within 30 days from today.
32. Mention for directions on the hearing and disposal of the appeal 14 th October 2026.
33. Costs of the application will abide by the outcome of the appeal.
34. Orders accordingly.
Delivered, dated and signed at Kwale on the Virtual Platform, Microsoft Teams this 16 th day of September.
ANDAYI W. F.
JUDGE
In the presence of:
N/A for the applicants/appellants.
Munene for the 1 st respondent.
N/A for the 2 nd respondent.
Ummu: Court Assistant.
ANDAYI W. F.
JUDGE
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