1. The Appellant’s Notice of Motion dated 6th May, 2025 is expressed to be brought under Under Order 42 rule 6 of the Civil Procedure Rules and all other enabling provisions of the law and seeks the following orders:
a. THAT [spent].
b. THAT [spent].
c. THAT the Honourable Court be pleased to stay the execution of the judgement delivered in Kisumu CMCC No.282 OF 2020 on 8th April, 2025 and its consequential decree pending the hearing and determination of the appeal herein.
d. THAT the costs of the application be provided for.
2. The grounds upon which the application is premised are set out on its face and are as follows:
a. The learned trial Magistrate dismissed the Appellant’s case for accounts and delivered a judgement in favour of the Respondent in the counter claim for a sum of Ksh.1,182,779/- together with interest, on 8th April, 2025.
b. The Appellant has filed an appeal against that decision in the current appeal.
c. The informal stay orders granted by the trial court during delivery of judgement lapses on 8th May, 2025.
d. The Appellant is thus exposed to imminent execution and urgently requires the protection of this Honourable Court.
e. The decretal sum is colossal and substantial and any attempt to execute the decree and judgement of the trial court will completely devastate the Appellant who will suffer substantial loss.
f. The Appellant is willing and ready to give a title deed equivalent in value with the decretal sum, as a security for due performance of any decree that may be passed against him.
g. This application has been made timeously, in good faith and in the interest of justice.
3. The application is supported by the Appellant’s affidavit sworn on 6th May, 2025. In his affidavit, the Appellant states that he is aware that the learned trial Magistrate dismissed his case for accounts and delivered judgement in favour of the Respondent in the counterclaim for a sum of Ksh.1,182,779/- together with interest on 8th April, 2025.
4. The Appellant asserts that he has filed an appeal against the trial court’s decision and annexes and that the trial court issued informal stay of execution orders for a period of one month. Consequently, he is exposed to imminent execution and urgently requires the protection of this Court.
5. The Appellant contends in his affidavit that the decretal sum is substantial and any attempt to execute the trial court’s judgement would cause him significant and potentially devastating loss. He states that he is willing and ready to provide a title deed of equivalent value to the decretal sum as security for the due performance of the decree, should his appreal be unsuccessful.
6. The Appellant avers that the application has been made timeously, in good faith and in the interest of justice.
7. In resisting the application, the Respondent filed a statement of grounds of opposition dated 8th July, 2025 and a replying affidavit sworn on even date by Feisal M. Razik, its Operations Manager.The grounds of opposition are reproduced as follows:
1. That the Application is misconceived and is bad in law.
2. That there is no legal basis upon which the court may make the orders prayed for.
3. That the said Application is made mala fides.
4. That the Application is for an order of stay of execution/proceedings but the Applicant is unable to satisfy this court that:
a) Sufficient cause has been shown.
b) Substantial loss may result unless the order for stay is made.
c) The application has been made without unreasonable delay.
d) Such security as the Court may order will been given by the Applicant.
e) There is in existence of a just cause sufficient enough to warrant depriving a successful litigant of the fruits of his judgement.
5. The said Application is made to circumvent and defeat the cause of justice and to make the court act in vain.
6. That the Defendant/Applicant’s application has no merit and should be dismissed with costs.
8. In his replying affidavit, Mr. Razik states on oath that the Appellant merely alleges that execution is imminent and that the decretal amount is “colossal,” which are not legally sufficient grounds for a stay of execution.
9. The said deponent further states that the Respondent, through its Advocates, offered that the decretal amount, including interest and costs, be deposited in a joint interest-bearing account as security, but the Appellant declined and instead proposed offering a title deed as security, which the Respondent is opposed to. He further states that the Appellant has failed to produce the proposed title deed or provide a certified copy, official searches proving ownership, or any valuation report to guide the court as to its value. He contends that a title deed alone does not constitute adequate security unless properly charged or mortgaged.
10. Mr. Razik further proffers the position that the Appellant has provided no evidence regarding the Respondent’s inability to repay the decretal amount if the appeal succeeds. The Respondent asserts that it is a financially stable and successful company and that mere allegations that it will not be able to repay, without proof, are insufficient to justify a stay of execution order.
11. The deponent further contends that there is no factual or evidentiary basis presented by the Applicant to show that the appeal would be rendered nugatory if a stay is not granted. He asserts that the Applicant’s affidavit is shallow, lacks material facts and fails to provide recognized legal grounds warranting an order of stay of execution and that the Respondent is entitled to enjoy the fruits of its judgment. He further states that the application is misconceived, bad in law and mala fides, intended to unduly delay payments to the Respondent.
12. The Respondent, through Mr. Razik’s affidavit, emphasizes that the Applicant has not shown sufficient cause, risk of substantial loss or any justifiable reason to deprive the Appellant, who is a successful litigant, of the fruits of his judgment.
13. In conclusion, the Respondent prays that the Appellant’s application for a stay of execution be dismissed with costs.
14. The application was canvassed by way of written submissions.
15. In his brief submissions, the Appellant contends that the decretal sum, inclusive of costs is substantial for an average Kenyan, such as himself. The Appellant has proposed to offer his wife’s title deed for land parcel no. Majoge/Bombaba/3954, valued at Ksh.2,500,000/-, as security for the due performance the decree, should his appeal be unsuccessful.
16. The Appellant urges that the proposed security is sufficient to cover the Respondent’s claim in full, in any event. He submits that, given the current difficult economic conditions, it is impossible for him to mobilize the judgement amount to deposit in court as security.
17. On these grounds, he prays that the Court grants an order stay of execution on the basis of the proposed security in the form of the title deed, pending the determination of the instant appeal.
18. On its part, the Respondent submits that the principles governing applications for stay of execution are set out under Order 42 Rule 6 of the Civil Procedure Rules, which requires that a court may only grant a stay if the Appellant shows sufficient cause, demonstrates that substantial loss may result if the stay is not granted, applies without unreasonable delay, provides adequate security and establishes just cause to deprive a successful litigant of the fruits of their judgement.
19. The Respondent contends that the Applicant has failed to satisfy any of these conditions and therefore cannot succeed in the application for a stay of execution.
20. On the issue of sufficient cause, the Respondent submits that the Applicant has offered only an unsubstantiated fear of “imminent execution,” without any evidence to justify keeping the Respondent from enjoying the fruits of its judgment. The Respondent contends that execution merely restores to the Respondent what is lawfully theirs. To that end, the Respondent places reliance on the authorities of Carter & Sons Limited v Deposit Protection Fund Board & 2 Others, Civil Appeal No. 291 of 1997 and Equitorial Commercial Bank Limited & 2 Others v Retreat Villas Limited [2006] eKLR, where the courts held that sufficient cause must be established for a stay.
21. Regarding substantial loss, the Respondent argues that the Appellant has not shown any evidence that it would suffer substantial loss if a stay is not granted. The Respondent states that it would itself, as a matter of fact suffer substantial loss if the stay were granted, as it would continue to be deprived of the judgement amount. The Respondent relies on the case of Kenya Shell Limited v Kibiru & Another [1986] KLR 410 and as echoed in Equitorial Commercial Bank Limited & 2 Others v Retreat Villas Limited [2006] eKLR, where the courts emphasized that mere assertions of loss are insufficient without proof thereof.
22. Concerning unreasonable delay, the Respondent submits that the application is tactical, aimed at obstructing execution and frustrating the Respondent’s lawful entitlement under the decree and therefore cannot justify granting a stay.
23. On the question of security, the Respondent states that the Applicant’s offer of his wife’s title deed for land parcel Majoge/Bombaba/3954 is wholly inadequate and unenforceable and that the property is not in the Applicant’s name, is beyond the court’s control and cannot secure the Respondent’s interests. The Respondent notes that a practical and realistic form of security, such as depositing the decretal amount plus interest in a joint interest-bearing account, has deliberately avoided by the Appellant in his application.
24. Regarding just cause, the Respondent contends that the Applicant has provided no evidence to justify depriving the Respondent of their judgement. The mere intention to appeal does not constitute sufficient cause for a stay. Relevant authorities cited to support this position includes Shell Limited v Benjamin Karugu Kiiru & Ruth Wairimu Karuga (1982-88) 1 KAR, Port Reitz Maternity v James Karanga Kabi, High Court Civil Appeal No. 63 of 1997 and Equitorial Commercial Bank Limited & 2 Others v Retreat Villas Limited [2006] eKLR, emphasizing that the right of appeal must be balanced against the successful litigant’s right to enjoy the fruits of judgment.
25. In conclusion, the Respondent submits that the Appellant has failed to satisfy the mandatory requisite conditions for a stay pending appeal and seeks that the application be dismissed with costs.
a. Whether the Appellant has shown sufficient cause and risk of substantial loss to justify a stay of execution of the trial court’s judgment pending appeal.
b. Whether the application for stay of execution was filed without unreasonable delay.
c. Whether the Appellant has provided adequate and legally acceptable security to protect the Respondent’s interests.
d. Whether there exists just cause to deprive the Respondent, as the successful litigant, of the fruits of its judgment.
26. I will proceed to determine the issues seriatim
27. The first issue for me to address is whether the Appellant has shown sufficient cause and risk of substantial loss to justify a stay of execution of the trial court’s judgment pending appeal.
28. On this issue, the Court notes that the Appellant has averred in his affidavit and submissions that the decretal sum of Kshs. 1,182,779/-, together with assessed costs of Kshs. 363,094.60/=, is substantial and that any attempt to execute the trial court’s judgment would expose him to significant and potentially devastating financial loss. The Appellant has further stated that he is willing to provide security in the form of a title deed of equivalent value to the decretal sum to safeguard the Respondent’s interests.
29. The Respondent has opposed the application on the basis that the Appellant’s fear of execution and characterization of the sum as “colossal” are insufficient grounds in law to justify a stay. The Respondent emphasizes that the Applicant has not produced the proposed title deed, nor provided certified copies or valuations to substantiate its adequacy as security.
30. While the Respondent’s objections regarding the form and verifiability of the security are noted, the Court finds that the Appellant has sufficiently demonstrated that without a stay, he faces the imminent risk of execution which could result in financial hardship and irreparable loss. The magnitude of the decretal sum relative to the Appellant’s financial capacity, coupled with the urgency arising from the lapse of the informal stay orders issued by the trial court, satisfies the requirement of showing risk of substantial loss for purposes of a stay.
31. In light of the foregoing, and taking into account the principle that a stay of execution pending appeal is designed to preserve the status quo and protect the Appellant from irreparable harm, the Court finds that the Appellant has demonstrated sufficient cause and risk of substantial loss to justify a stay of execution.
32. The second issue is whether the application for stay of execution was filed without unreasonable delay.
33. The Court notes that the Appellant filed the Notice of Motion seeking a stay of execution on 6th May, 2025, after the trial court delivered judgment in Kisumu CMCC No. 282 of 2020 on 8th April, 2025, and before the informal stay issued by the trial court expired on 8th May, 2025.
34. The Respondent contends that the application was tactical and intended to obstruct execution. However, the Court observes that the Appellant acted promptly upon the delivery of judgment, filing the application within the statutory period and before the lapse of the trial court’s temporary stay order. This demonstrates diligence and good faith in seeking judicial protection pending appeal.
35. Given that the application was made within a reasonable timeframe and in direct response to the imminent expiry of the trial court’s stay, the Court is satisfied that the requirement of timeliness under Order 42 Rule 6 of the Civil Procedure Rules, 2010 has been met.
36. The third issue is whether the Appellant has provided adequate and legally acceptable security to protect the Respondent’s interests.
37. The Court notes that the Appellant has proposed to offer a title deed for land parcel no. Majoge/Bombaba/3954, valued at Kshs. 2,500,000/=, as security for the due performance of any decree that may be passed against him. The Appellant asserts that this security is sufficient to cover the Respondent’s claim.
38. The Respondent opposes the application on the basis that the proposed security is inadequate and unenforceable. Specifically, the title deed is registered in the name of the Appellant’s wife, who is not a party to these proceedings, has not sworn an affidavit consenting to the use of the property as security, and no certified copy, ownership search, or valuation report has been produced to substantiate the security’s sufficiency.
39. While the Appellant has demonstrated willingness to provide some form of security, the Court observes that for security to be legally effective, it must be enforceable and properly available to the Court to protect the interests of the Respondent. A title deed owned by a non-party, without the owner’s sworn consent, cannot constitute valid security. The lack of supporting documentation and formal undertaking further undermines the legal acceptability of the proposed security.
40. In the circumstances, the Court finds that although the Appellant has purported to offer security, the same is not legally acceptable or enforceable as the registered owner of the property is not a party to the proceedings and has not sworn an affidavit to that effect.
41. The last issue to determine is whether there exists just cause to deprive the Respondent, as the successful litigant, of the fruits of its judgment.
42. The Respondent argues that the Appellant has not shown any just cause to justify depriving the Respondent of the benefit of its judgement, asserting that the mere intention to appeal is insufficient.
43. In contrast, the Appellant has indicated willingness to provide security for the due performance of any decree that may be passed against him, albeit in the form of a title deed that the Court has found legally unacceptable.
44. It is well settled in law that an order for stay of execution pending appeal is a discretionary remedy that the court may grant where the Applicant satisfies the conditions under Order 42 Rule 6 of the Civil Procedure Rules. This includes demonstrating sufficient cause, risk of substantial loss, timeliness, adequate security and just cause to deprive the successful litigant of the fruits of the judgement.
45. In determining just cause, the Court must strike a balance between the Appellant’s right of appeal and the Respondent’s right to enjoy the fruits of its judgement, ensuring that the former is not exercised in a manner that unjustly prejudices the latter. Just cause does not mean mere assertion of appeal. Rather, it requires that the Respondent’s interests be adequately protected while the appeal is pending.
46. In Maurine Achieng v Satish K. Shah [2014] eKLR, the High Court granted a stay of execution pending appeal on the condition that the Applicants deposit the full decretal sum in a joint interest earning account held in the names of counsel for the parties, noting that the purpose of security is to protect the Respondent while preserving the Appellant’s right to appeal.
47. Similarly, in Mutua v Onginjo (Civil Appeal 314 of 2023) [2024] KEHC 1473 (KLR), the High Court granted a conditional stay of execution on terms that part of the decretal amount be paid and the remainder be deposited in a joint interest earning account to protect the Respondent’s interests during the appeal.
48. In Gataka v Mwangi [2024] KEHC 14125 (KLR), the court recognised that a money decree requires appropriate security and that a title document alone is not sufficient, and went on to grant a conditional stay subject to deposit of part of the decretal amount in a joint interest earning account.
49. Applying these authorities, the Court finds that although the Appellant’s original offer of a title deed is not legally acceptable, his willingness to offer security demonstrates that he does not seek to deny the Respondent the ultimate benefit of its judgment. The appropriate and legally enforceable security in a money decree case is deposit of the decretal amount in a joint interest earning account held by counsel for both parties.
50. This approach protects the Respondent from loss, ensures that the Appellant retains his right to appeal without immediate execution and strikes the necessary balance between the competing interests of both parties. It also aligns with established practice where courts have routinely imposed conditions requiring deposit of the decretal sum (or part thereof) in a joint interest earning account as security for due performance of the decree.
51. The upshot then is that I will proceed to allow the application dated 6th May, 2025 in the following terms:
a. That an order for stay pending appeal is hereby issued on the conditions that:
i. The Appellant shall deposit in a joint interest earning account in the names of the two law firms on record for the parties, with a reputable bank domiciled in and/or with a branch within Kisumu County, security in the amount of Ksh.2,299,010.04/- (as per the warrant of attachment issued in the trial Court) within 30 days from the date hereof.
ii. In the event that the condition in (i) above is not complied with by the Appellant, the application will be deemed as having been dismissed with costs, effective the date of this ruling.
b. Subject to compliance with a(i) above, the costs of the application shall abide the outcome of the appeal.
7. This appeal will be mentioned on 17th June, 2026 for directions. A mention notice to be served upon the Appellant.
DELIVERED (virtually), DATED & SIGNED this 12th day of March, 2026.
JOE M. OMIDO
JUDGE
FOR APPELLANT: No appearance.
FOR RESPONDENT: Ms. Taib.
COURT ASSISTANTS: Mr. Ngoge & Mr. Juma.
a. THAT [spent].
b. THAT [spent].
c. THAT the Honourable Court be pleased to stay the execution of the judgement delivered in Kisumu CMCC No.282 OF 2020 on 8th April, 2025 and its consequential decree pending the hearing and determination of the appeal herein.
d. THAT the costs of the application be provided for.
2. The grounds upon which the application is premised are set out on its face and are as follows:
a. The learned trial Magistrate dismissed the Appellant’s case for accounts and delivered a judgement in favour of the Respondent in the counter claim for a sum of Ksh.1,182,779/- together with interest, on 8th April, 2025.
b. The Appellant has filed an appeal against that decision in the current appeal.
c. The informal stay orders granted by the trial court during delivery of judgement lapses on 8th May, 2025.
d. The Appellant is thus exposed to imminent execution and urgently requires the protection of this Honourable Court.
e. The decretal sum is colossal and substantial and any attempt to execute the decree and judgement of the trial court will completely devastate the Appellant who will suffer substantial loss.
f. The Appellant is willing and ready to give a title deed equivalent in value with the decretal sum, as a security for due performance of any decree that may be passed against him.
g. This application has been made timeously, in good faith and in the interest of justice.
3. The application is supported by the Appellant’s affidavit sworn on 6th May, 2025. In his affidavit, the Appellant states that he is aware that the learned trial Magistrate dismissed his case for accounts and delivered judgement in favour of the Respondent in the counterclaim for a sum of Ksh.1,182,779/- together with interest on 8th April, 2025.
4. The Appellant asserts that he has filed an appeal against the trial court’s decision and annexes and that the trial court issued informal stay of execution orders for a period of one month. Consequently, he is exposed to imminent execution and urgently requires the protection of this Court.
5. The Appellant contends in his affidavit that the decretal sum is substantial and any attempt to execute the trial court’s judgement would cause him significant and potentially devastating loss. He states that he is willing and ready to provide a title deed of equivalent value to the decretal sum as security for the due performance of the decree, should his appreal be unsuccessful.
6. The Appellant avers that the application has been made timeously, in good faith and in the interest of justice.
7. In resisting the application, the Respondent filed a statement of grounds of opposition dated 8th July, 2025 and a replying affidavit sworn on even date by Feisal M. Razik, its Operations Manager.The grounds of opposition are reproduced as follows:
1. That the Application is misconceived and is bad in law.
2. That there is no legal basis upon which the court may make the orders prayed for.
3. That the said Application is made mala fides.
4. That the Application is for an order of stay of execution/proceedings but the Applicant is unable to satisfy this court that:
a) Sufficient cause has been shown.
b) Substantial loss may result unless the order for stay is made.
c) The application has been made without unreasonable delay.
d) Such security as the Court may order will been given by the Applicant.
e) There is in existence of a just cause sufficient enough to warrant depriving a successful litigant of the fruits of his judgement.
5. The said Application is made to circumvent and defeat the cause of justice and to make the court act in vain.
6. That the Defendant/Applicant’s application has no merit and should be dismissed with costs.
8. In his replying affidavit, Mr. Razik states on oath that the Appellant merely alleges that execution is imminent and that the decretal amount is “colossal,” which are not legally sufficient grounds for a stay of execution.
9. The said deponent further states that the Respondent, through its Advocates, offered that the decretal amount, including interest and costs, be deposited in a joint interest-bearing account as security, but the Appellant declined and instead proposed offering a title deed as security, which the Respondent is opposed to. He further states that the Appellant has failed to produce the proposed title deed or provide a certified copy, official searches proving ownership, or any valuation report to guide the court as to its value. He contends that a title deed alone does not constitute adequate security unless properly charged or mortgaged.
10. Mr. Razik further proffers the position that the Appellant has provided no evidence regarding the Respondent’s inability to repay the decretal amount if the appeal succeeds. The Respondent asserts that it is a financially stable and successful company and that mere allegations that it will not be able to repay, without proof, are insufficient to justify a stay of execution order.
11. The deponent further contends that there is no factual or evidentiary basis presented by the Applicant to show that the appeal would be rendered nugatory if a stay is not granted. He asserts that the Applicant’s affidavit is shallow, lacks material facts and fails to provide recognized legal grounds warranting an order of stay of execution and that the Respondent is entitled to enjoy the fruits of its judgment. He further states that the application is misconceived, bad in law and mala fides, intended to unduly delay payments to the Respondent.
12. The Respondent, through Mr. Razik’s affidavit, emphasizes that the Applicant has not shown sufficient cause, risk of substantial loss or any justifiable reason to deprive the Appellant, who is a successful litigant, of the fruits of his judgment.
13. In conclusion, the Respondent prays that the Appellant’s application for a stay of execution be dismissed with costs.
14. The application was canvassed by way of written submissions.
15. In his brief submissions, the Appellant contends that the decretal sum, inclusive of costs is substantial for an average Kenyan, such as himself. The Appellant has proposed to offer his wife’s title deed for land parcel no. Majoge/Bombaba/3954, valued at Ksh.2,500,000/-, as security for the due performance the decree, should his appeal be unsuccessful.
16. The Appellant urges that the proposed security is sufficient to cover the Respondent’s claim in full, in any event. He submits that, given the current difficult economic conditions, it is impossible for him to mobilize the judgement amount to deposit in court as security.
17. On these grounds, he prays that the Court grants an order stay of execution on the basis of the proposed security in the form of the title deed, pending the determination of the instant appeal.
18. On its part, the Respondent submits that the principles governing applications for stay of execution are set out under Order 42 Rule 6 of the Civil Procedure Rules, which requires that a court may only grant a stay if the Appellant shows sufficient cause, demonstrates that substantial loss may result if the stay is not granted, applies without unreasonable delay, provides adequate security and establishes just cause to deprive a successful litigant of the fruits of their judgement.
19. The Respondent contends that the Applicant has failed to satisfy any of these conditions and therefore cannot succeed in the application for a stay of execution.
20. On the issue of sufficient cause, the Respondent submits that the Applicant has offered only an unsubstantiated fear of “imminent execution,” without any evidence to justify keeping the Respondent from enjoying the fruits of its judgment. The Respondent contends that execution merely restores to the Respondent what is lawfully theirs. To that end, the Respondent places reliance on the authorities of Carter & Sons Limited v Deposit Protection Fund Board & 2 Others, Civil Appeal No. 291 of 1997 and Equitorial Commercial Bank Limited & 2 Others v Retreat Villas Limited [2006] eKLR, where the courts held that sufficient cause must be established for a stay.
21. Regarding substantial loss, the Respondent argues that the Appellant has not shown any evidence that it would suffer substantial loss if a stay is not granted. The Respondent states that it would itself, as a matter of fact suffer substantial loss if the stay were granted, as it would continue to be deprived of the judgement amount. The Respondent relies on the case of Kenya Shell Limited v Kibiru & Another [1986] KLR 410 and as echoed in Equitorial Commercial Bank Limited & 2 Others v Retreat Villas Limited [2006] eKLR, where the courts emphasized that mere assertions of loss are insufficient without proof thereof.
22. Concerning unreasonable delay, the Respondent submits that the application is tactical, aimed at obstructing execution and frustrating the Respondent’s lawful entitlement under the decree and therefore cannot justify granting a stay.
23. On the question of security, the Respondent states that the Applicant’s offer of his wife’s title deed for land parcel Majoge/Bombaba/3954 is wholly inadequate and unenforceable and that the property is not in the Applicant’s name, is beyond the court’s control and cannot secure the Respondent’s interests. The Respondent notes that a practical and realistic form of security, such as depositing the decretal amount plus interest in a joint interest-bearing account, has deliberately avoided by the Appellant in his application.
24. Regarding just cause, the Respondent contends that the Applicant has provided no evidence to justify depriving the Respondent of their judgement. The mere intention to appeal does not constitute sufficient cause for a stay. Relevant authorities cited to support this position includes Shell Limited v Benjamin Karugu Kiiru & Ruth Wairimu Karuga (1982-88) 1 KAR, Port Reitz Maternity v James Karanga Kabi, High Court Civil Appeal No. 63 of 1997 and Equitorial Commercial Bank Limited & 2 Others v Retreat Villas Limited [2006] eKLR, emphasizing that the right of appeal must be balanced against the successful litigant’s right to enjoy the fruits of judgment.
25. In conclusion, the Respondent submits that the Appellant has failed to satisfy the mandatory requisite conditions for a stay pending appeal and seeks that the application be dismissed with costs.
a. Whether the Appellant has shown sufficient cause and risk of substantial loss to justify a stay of execution of the trial court’s judgment pending appeal.
b. Whether the application for stay of execution was filed without unreasonable delay.
c. Whether the Appellant has provided adequate and legally acceptable security to protect the Respondent’s interests.
d. Whether there exists just cause to deprive the Respondent, as the successful litigant, of the fruits of its judgment.
26. I will proceed to determine the issues seriatim
27. The first issue for me to address is whether the Appellant has shown sufficient cause and risk of substantial loss to justify a stay of execution of the trial court’s judgment pending appeal.
28. On this issue, the Court notes that the Appellant has averred in his affidavit and submissions that the decretal sum of Kshs. 1,182,779/-, together with assessed costs of Kshs. 363,094.60/=, is substantial and that any attempt to execute the trial court’s judgment would expose him to significant and potentially devastating financial loss. The Appellant has further stated that he is willing to provide security in the form of a title deed of equivalent value to the decretal sum to safeguard the Respondent’s interests.
29. The Respondent has opposed the application on the basis that the Appellant’s fear of execution and characterization of the sum as “colossal” are insufficient grounds in law to justify a stay. The Respondent emphasizes that the Applicant has not produced the proposed title deed, nor provided certified copies or valuations to substantiate its adequacy as security.
30. While the Respondent’s objections regarding the form and verifiability of the security are noted, the Court finds that the Appellant has sufficiently demonstrated that without a stay, he faces the imminent risk of execution which could result in financial hardship and irreparable loss. The magnitude of the decretal sum relative to the Appellant’s financial capacity, coupled with the urgency arising from the lapse of the informal stay orders issued by the trial court, satisfies the requirement of showing risk of substantial loss for purposes of a stay.
31. In light of the foregoing, and taking into account the principle that a stay of execution pending appeal is designed to preserve the status quo and protect the Appellant from irreparable harm, the Court finds that the Appellant has demonstrated sufficient cause and risk of substantial loss to justify a stay of execution.
32. The second issue is whether the application for stay of execution was filed without unreasonable delay.
33. The Court notes that the Appellant filed the Notice of Motion seeking a stay of execution on 6th May, 2025, after the trial court delivered judgment in Kisumu CMCC No. 282 of 2020 on 8th April, 2025, and before the informal stay issued by the trial court expired on 8th May, 2025.
34. The Respondent contends that the application was tactical and intended to obstruct execution. However, the Court observes that the Appellant acted promptly upon the delivery of judgment, filing the application within the statutory period and before the lapse of the trial court’s temporary stay order. This demonstrates diligence and good faith in seeking judicial protection pending appeal.
35. Given that the application was made within a reasonable timeframe and in direct response to the imminent expiry of the trial court’s stay, the Court is satisfied that the requirement of timeliness under Order 42 Rule 6 of the Civil Procedure Rules, 2010 has been met.
36. The third issue is whether the Appellant has provided adequate and legally acceptable security to protect the Respondent’s interests.
37. The Court notes that the Appellant has proposed to offer a title deed for land parcel no. Majoge/Bombaba/3954, valued at Kshs. 2,500,000/=, as security for the due performance of any decree that may be passed against him. The Appellant asserts that this security is sufficient to cover the Respondent’s claim.
38. The Respondent opposes the application on the basis that the proposed security is inadequate and unenforceable. Specifically, the title deed is registered in the name of the Appellant’s wife, who is not a party to these proceedings, has not sworn an affidavit consenting to the use of the property as security, and no certified copy, ownership search, or valuation report has been produced to substantiate the security’s sufficiency.
39. While the Appellant has demonstrated willingness to provide some form of security, the Court observes that for security to be legally effective, it must be enforceable and properly available to the Court to protect the interests of the Respondent. A title deed owned by a non-party, without the owner’s sworn consent, cannot constitute valid security. The lack of supporting documentation and formal undertaking further undermines the legal acceptability of the proposed security.
40. In the circumstances, the Court finds that although the Appellant has purported to offer security, the same is not legally acceptable or enforceable as the registered owner of the property is not a party to the proceedings and has not sworn an affidavit to that effect.
41. The last issue to determine is whether there exists just cause to deprive the Respondent, as the successful litigant, of the fruits of its judgment.
42. The Respondent argues that the Appellant has not shown any just cause to justify depriving the Respondent of the benefit of its judgement, asserting that the mere intention to appeal is insufficient.
43. In contrast, the Appellant has indicated willingness to provide security for the due performance of any decree that may be passed against him, albeit in the form of a title deed that the Court has found legally unacceptable.
44. It is well settled in law that an order for stay of execution pending appeal is a discretionary remedy that the court may grant where the Applicant satisfies the conditions under Order 42 Rule 6 of the Civil Procedure Rules. This includes demonstrating sufficient cause, risk of substantial loss, timeliness, adequate security and just cause to deprive the successful litigant of the fruits of the judgement.
45. In determining just cause, the Court must strike a balance between the Appellant’s right of appeal and the Respondent’s right to enjoy the fruits of its judgement, ensuring that the former is not exercised in a manner that unjustly prejudices the latter. Just cause does not mean mere assertion of appeal. Rather, it requires that the Respondent’s interests be adequately protected while the appeal is pending.
46. In Maurine Achieng v Satish K. Shah [2014] eKLR, the High Court granted a stay of execution pending appeal on the condition that the Applicants deposit the full decretal sum in a joint interest earning account held in the names of counsel for the parties, noting that the purpose of security is to protect the Respondent while preserving the Appellant’s right to appeal.
47. Similarly, in Mutua v Onginjo (Civil Appeal 314 of 2023) [2024] KEHC 1473 (KLR), the High Court granted a conditional stay of execution on terms that part of the decretal amount be paid and the remainder be deposited in a joint interest earning account to protect the Respondent’s interests during the appeal.
48. In Gataka v Mwangi [2024] KEHC 14125 (KLR), the court recognised that a money decree requires appropriate security and that a title document alone is not sufficient, and went on to grant a conditional stay subject to deposit of part of the decretal amount in a joint interest earning account.
49. Applying these authorities, the Court finds that although the Appellant’s original offer of a title deed is not legally acceptable, his willingness to offer security demonstrates that he does not seek to deny the Respondent the ultimate benefit of its judgment. The appropriate and legally enforceable security in a money decree case is deposit of the decretal amount in a joint interest earning account held by counsel for both parties.
50. This approach protects the Respondent from loss, ensures that the Appellant retains his right to appeal without immediate execution and strikes the necessary balance between the competing interests of both parties. It also aligns with established practice where courts have routinely imposed conditions requiring deposit of the decretal sum (or part thereof) in a joint interest earning account as security for due performance of the decree.
51. The upshot then is that I will proceed to allow the application dated 6th May, 2025 in the following terms:
a. That an order for stay pending appeal is hereby issued on the conditions that:
i. The Appellant shall deposit in a joint interest earning account in the names of the two law firms on record for the parties, with a reputable bank domiciled in and/or with a branch within Kisumu County, security in the amount of Ksh.2,299,010.04/- (as per the warrant of attachment issued in the trial Court) within 30 days from the date hereof.
ii. In the event that the condition in (i) above is not complied with by the Appellant, the application will be deemed as having been dismissed with costs, effective the date of this ruling.
b. Subject to compliance with a(i) above, the costs of the application shall abide the outcome of the appeal.
7. This appeal will be mentioned on 17th June, 2026 for directions. A mention notice to be served upon the Appellant.
DELIVERED (virtually), DATED & SIGNED this 12th day of March, 2026.
JOE M. OMIDO
JUDGE
FOR APPELLANT: No appearance.
FOR RESPONDENT: Ms. Taib.
COURT ASSISTANTS: Mr. Ngoge & Mr. Juma.