Before the Court is an application dated 13th December 2025 seeking the following orders:
1. Spent.
2. That, pending the hearing and determination of this application, the Honourable Court be pleased to issue an order staying execution of the judgment delivered by Hon. Viola Muthoni on 13th November 2025 in Claim Number SCCCOMM/E301/2022.
3. That costs of and incidental to this application be awarded.
2. The appellant supported the application on the grounds and averments in the supporting affidavit also dated 13th December 2025, wherein he stated as follows:
3. The appellant expressed dissatisfaction with the judgment delivered on 13th November 2025 by Hon. Viola Muthoni, in which the sum of Kshs. 163,000 together with costs and interest was awarded. He contended that he has a justifiable and arguable appeal on issues requiring determination by this Court. He further averred that there is a real and imminent risk that the respondent will proceed with execution unless restrained by a stay of execution, and that such execution would result in substantial and irreparable loss.
4. In rejoinder, the respondent, in a replying affidavit sworn on 8th January 2026, stated that the application is intended merely to delay execution of a lawful decree. He contended that the appellant failed to meet the threshold for a stay of execution, having made broad, unsupported allegations of irreparable loss. The respondent further argued that the appellant has not demonstrated that he would be unable to repay the decretal sum if the appeal succeeds and that he has not offered any security. The respondent also stated that he would suffer real and actual prejudice if execution is stayed, having already waited three years for justice.
5. Both parties filed brief submissions, and the sole issue for determination is whether this application has merit.
6. Having carefully perused the trial court record, submissions by counsel, and relevant case law, the Court finds as follows:
a) Legal framework for stay of execution
Stay of execution is provided under Order 42, Rule 6 of the Civil Procedure Rules (CPR), subject to certain conditions:
“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 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 the Applicant has been given by the Applicant.”
The Court relies on James Wangalwa & Another v Agnes Naliaka Cheseto [2012] KEHC 1094 (KLR), where it was held that sufficient cause depends on the applicant satisfying the Court on:
o Substantial loss likely to result,
o Timely filing of the application, and
o Provision of security for due performance of the decree.
These conditions are cumulative, as reinforced in Mukuma v Abuoga (1988) KLR 645.
b) Substantial loss
Under current civil procedure, these are the essential conditions for granting a stay of execution. It is undisputed that the application was filed without unreasonable delay.
In Sewankambo Dickson v Ziwa Abby, HCT-00-CC MA 0178 of 2005 (Uganda), the Court stated:
“…substantial loss is a qualitative concept… it refers to any loss, great or small, that is real worth or value…”
Similarly, in Andrew Kuria Njuguna v Rose Kuria, Nairobi Civil Case 224 of 2001 (unreported):
“…the applicant must place material and information before the Court demonstrating a risk of substantial loss…”
In Machira t/a Machira & Co. Advocates v East African Standard (No. 2) (2002) KLR 63, the Court held:
“…it is not enough for the applicant to merely state that substantial loss will result; specific details must be provided…”
c) Evidential burden
The appellant contended that once he alleges that the respondent cannot repay the decretal sum, the evidential burden shifts to the respondent (Luxus Woods (K) Ltd v Patrick Amugunde Kamadi, Civil Appeal No. 549 of 2015). The Court agrees that while the applicant must initially demonstrate potential irreparable loss, the respondent must show ability to satisfy the decree if execution proceeds. This principle is supported in Equity Bank Ltd v Taiga Adams Company Ltd, Civil Appeal No. 722 of 2000.
d) Jurisprudence
The Court also relies on:
o Afyare Enterprises Company Ltd v Nyaribo t/a I.N. Nyaribo & Co. Advocates [2025] KECA 1819 (KLR): stay not justified where substantial loss is unproven.
o National Industrial Credit Bank Ltd v Aquinas Francis Wasike & Another (UR): burden shifts to respondent once applicant alleges inability to repay.
e) Analysis
The appellant has not demonstrated actual substantial loss, merely asserting a broad claim of potential loss. There is no evidence that the respondent would be unable to refund the sum if the appeal succeeds. Jurisprudence clearly favors the applicant only when substantial loss is demonstrated, particularly in money decrees.
f) Conclusion
As established in Equity Bank Ltd (supra):
“…No order for stay of execution shall be made… unless all requirements are met…”
Since the appellant failed to prove substantial loss, the Court finds no need to consider the requirement of security.
7. Accordingly, the application is dismissed with costs.
It is so ordered.
D ated, signed, and delivered in Open Court/Online through MS Teams, this 4TH th day of March 2026.
HON. LADY JUSTICE W. K. MICHENI
JUDGE
1. Spent.
2. That, pending the hearing and determination of this application, the Honourable Court be pleased to issue an order staying execution of the judgment delivered by Hon. Viola Muthoni on 13th November 2025 in Claim Number SCCCOMM/E301/2022.
3. That costs of and incidental to this application be awarded.
2. The appellant supported the application on the grounds and averments in the supporting affidavit also dated 13th December 2025, wherein he stated as follows:
3. The appellant expressed dissatisfaction with the judgment delivered on 13th November 2025 by Hon. Viola Muthoni, in which the sum of Kshs. 163,000 together with costs and interest was awarded. He contended that he has a justifiable and arguable appeal on issues requiring determination by this Court. He further averred that there is a real and imminent risk that the respondent will proceed with execution unless restrained by a stay of execution, and that such execution would result in substantial and irreparable loss.
4. In rejoinder, the respondent, in a replying affidavit sworn on 8th January 2026, stated that the application is intended merely to delay execution of a lawful decree. He contended that the appellant failed to meet the threshold for a stay of execution, having made broad, unsupported allegations of irreparable loss. The respondent further argued that the appellant has not demonstrated that he would be unable to repay the decretal sum if the appeal succeeds and that he has not offered any security. The respondent also stated that he would suffer real and actual prejudice if execution is stayed, having already waited three years for justice.
5. Both parties filed brief submissions, and the sole issue for determination is whether this application has merit.
6. Having carefully perused the trial court record, submissions by counsel, and relevant case law, the Court finds as follows:
a) Legal framework for stay of execution
Stay of execution is provided under Order 42, Rule 6 of the Civil Procedure Rules (CPR), subject to certain conditions:
“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 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 the Applicant has been given by the Applicant.”
The Court relies on James Wangalwa & Another v Agnes Naliaka Cheseto [2012] KEHC 1094 (KLR), where it was held that sufficient cause depends on the applicant satisfying the Court on:
o Substantial loss likely to result,
o Timely filing of the application, and
o Provision of security for due performance of the decree.
These conditions are cumulative, as reinforced in Mukuma v Abuoga (1988) KLR 645.
b) Substantial loss
Under current civil procedure, these are the essential conditions for granting a stay of execution. It is undisputed that the application was filed without unreasonable delay.
In Sewankambo Dickson v Ziwa Abby, HCT-00-CC MA 0178 of 2005 (Uganda), the Court stated:
“…substantial loss is a qualitative concept… it refers to any loss, great or small, that is real worth or value…”
Similarly, in Andrew Kuria Njuguna v Rose Kuria, Nairobi Civil Case 224 of 2001 (unreported):
“…the applicant must place material and information before the Court demonstrating a risk of substantial loss…”
In Machira t/a Machira & Co. Advocates v East African Standard (No. 2) (2002) KLR 63, the Court held:
“…it is not enough for the applicant to merely state that substantial loss will result; specific details must be provided…”
c) Evidential burden
The appellant contended that once he alleges that the respondent cannot repay the decretal sum, the evidential burden shifts to the respondent (Luxus Woods (K) Ltd v Patrick Amugunde Kamadi, Civil Appeal No. 549 of 2015). The Court agrees that while the applicant must initially demonstrate potential irreparable loss, the respondent must show ability to satisfy the decree if execution proceeds. This principle is supported in Equity Bank Ltd v Taiga Adams Company Ltd, Civil Appeal No. 722 of 2000.
d) Jurisprudence
The Court also relies on:
o Afyare Enterprises Company Ltd v Nyaribo t/a I.N. Nyaribo & Co. Advocates [2025] KECA 1819 (KLR): stay not justified where substantial loss is unproven.
o National Industrial Credit Bank Ltd v Aquinas Francis Wasike & Another (UR): burden shifts to respondent once applicant alleges inability to repay.
e) Analysis
The appellant has not demonstrated actual substantial loss, merely asserting a broad claim of potential loss. There is no evidence that the respondent would be unable to refund the sum if the appeal succeeds. Jurisprudence clearly favors the applicant only when substantial loss is demonstrated, particularly in money decrees.
f) Conclusion
As established in Equity Bank Ltd (supra):
“…No order for stay of execution shall be made… unless all requirements are met…”
Since the appellant failed to prove substantial loss, the Court finds no need to consider the requirement of security.
7. Accordingly, the application is dismissed with costs.
It is so ordered.
D ated, signed, and delivered in Open Court/Online through MS Teams, this 4TH th day of March 2026.
HON. LADY JUSTICE W. K. MICHENI
JUDGE