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Introduction
1. Before this Court is the Applicant’s Notice of Motion dated 14th March 2023 seeking, inter alia, a stay of execution of the taxed costs awarded to the 1st Respondent on 25th August 2022 pending the hearing and determination of an alleged intended appeal to the Supreme Court.
2. The application is opposed through the 1st Respondent’s Replying Affidavit sworn by Chacha Odera on 12th March 2025 and written submissions dated 5th October 2025.
3. The core issue for determination is whether the Applicant has met the threshold for grant of an order of stay of execution under Order 42 Rule 6 and Order 22 Rule 22(3) of the Civil Procedure Rules, 2010, as read with Sections 1A, 1B, and 3A of the Civil Procedure Act.
Background
4. The record reveals a long litigation history dating back over two decades. Judgment was rendered in favour of the 1st Respondent on 8th November 2019, and subsequent taxation of costs took place on 25th August 2022.
5. The Applicant now seeks to stay execution on the ground that he has lodged an application before the Supreme Court arising from Civil Application Sup No. 4 of 2020. The 1st Respondent, however, contends that the said application is fatally defective, has never been served, and has not been prosecuted for nearly six years.
Issues for Determination
Having considered the record, affidavits, and rival submissions, the following issues arise for determination:
1. Whether the Applicant’s intended appeal to the Supreme Court discloses an arguable or valid basis for stay.
2. Whether the Applicant has demonstrated substantial loss if stay is not granted.
3. Whether the Applicant has offered security for the due performance of the decree.
4. Whether the application has been made in good faith and with due diligence.
1. On the Validity of the Supreme Court Application
6. It is undisputed that the Applicant’s Supreme Court application was filed on 5th February 2020, approximately three months after the Court of Appeal judgment delivered on 8th November 2019.
7. Rule 42(1) of the Court of Appeal Rules is explicit that an aggrieved party must lodge such application within fourteen (14) days of the decision sought to be appealed. There is no evidence before this Court that the Applicant obtained extension or enlargement of time from either the Court of Appeal or the Supreme Court.
8. I caution myself not to determine the application before the Supreme Court, however, I find that based on the facts before me, it ought not form the basis for a stay of execution in the High Court.
2. On Substantial Loss
9. The principles governing stay of execution are well settled. In Meteine Ole Kilelu & 19 Others v Moses K. Nailole [2009] eKLR, the Court of Appeal held that where the decree is a money decree, an applicant must show that execution will cause irreparable or substantial loss.
10. The decree herein is a taxed bill of costs in favour of a reputable financial institution, ABSA Bank Kenya PLC, whose capacity to refund any sums recovered in execution is not in doubt.
11. The Applicant has not demonstrated that execution will render his intended appeal nugatory or that repayment would be impossible. On the contrary, the Court of Appeal in Peter Kamau Ikigu v Barclays Bank of Kenya Ltd & another [2014] KECA 278 (KLR) dismissed a similar stay application, finding no basis for alleging that the 1st Respondent could not refund costs if required.
12. I find no new or compelling circumstances to depart from that reasoning.
3. On Security for Due Performance
13. Order 42 Rule 6(2)(b) of the Civil Procedure Rules mandates that security must be offered before a stay can issue. The Applicant has neither deposited the taxed costs nor proposed any form of security.
14. In Machira t/a Machira & Co Advocates v East African Standard [2002] KEHC 1167 (KLR), the Court held that the successful litigant should not be kept from enjoying the fruits of judgment except upon exceptional circumstances and adequate security.
15. Similarly, the Court in Muriu v Hygrotech East Africa Ltd [2022] KEELRC 12811 (KLR) emphasised that an applicant who makes no effort toward settlement or provision of security does not merit the discretionary relief of stay.
16. The Applicant’s omission to offer any security, coupled with his history of dilatory conduct, reinforces the Respondent’s submission that this application is merely a tactic to delay satisfaction of a long-overdue decree.
4. On Good Faith and Participation in Taxation
17. The record demonstrates that the Applicant was duly served with both the Taxation Notice dated 19th July 2022 and the Ruling Notice dated 4th August 2022, as evidenced by filed Affidavits of Service.
18. The Applicant nonetheless failed to attend both sessions and now seeks to challenge proceedings in which he deliberately chose not to participate. This Court cannot aid an indolent litigant. Litigation must come to an end.
Disposition
19. Having considered all the circumstances, I am satisfied that the Applicant has failed to satisfy the mandatory conditions for stay of execution under Order 42 Rule 6. The alleged Supreme Court application does not present a valid or arguable basis, no substantial loss has been demonstrated, and no security has been offered.
20. Accordingly, the Notice of Motion dated 14th March 2023 is dismissed with costs to the 1st Respondent. The file is marked as closed.
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Introduction
1. Before this Court is the Applicant’s Notice of Motion dated 14th March 2023 seeking, inter alia, a stay of execution of the taxed costs awarded to the 1st Respondent on 25th August 2022 pending the hearing and determination of an alleged intended appeal to the Supreme Court.
2. The application is opposed through the 1st Respondent’s Replying Affidavit sworn by Chacha Odera on 12th March 2025 and written submissions dated 5th October 2025.
3. The core issue for determination is whether the Applicant has met the threshold for grant of an order of stay of execution under Order 42 Rule 6 and Order 22 Rule 22(3) of the Civil Procedure Rules, 2010, as read with Sections 1A, 1B, and 3A of the Civil Procedure Act.
Background
4. The record reveals a long litigation history dating back over two decades. Judgment was rendered in favour of the 1st Respondent on 8th November 2019, and subsequent taxation of costs took place on 25th August 2022.
5. The Applicant now seeks to stay execution on the ground that he has lodged an application before the Supreme Court arising from Civil Application Sup No. 4 of 2020. The 1st Respondent, however, contends that the said application is fatally defective, has never been served, and has not been prosecuted for nearly six years.
Issues for Determination
Having considered the record, affidavits, and rival submissions, the following issues arise for determination:
1. Whether the Applicant’s intended appeal to the Supreme Court discloses an arguable or valid basis for stay.
2. Whether the Applicant has demonstrated substantial loss if stay is not granted.
3. Whether the Applicant has offered security for the due performance of the decree.
4. Whether the application has been made in good faith and with due diligence.
1. On the Validity of the Supreme Court Application
6. It is undisputed that the Applicant’s Supreme Court application was filed on 5th February 2020, approximately three months after the Court of Appeal judgment delivered on 8th November 2019.
7. Rule 42(1) of the Court of Appeal Rules is explicit that an aggrieved party must lodge such application within fourteen (14) days of the decision sought to be appealed. There is no evidence before this Court that the Applicant obtained extension or enlargement of time from either the Court of Appeal or the Supreme Court.
8. I caution myself not to determine the application before the Supreme Court, however, I find that based on the facts before me, it ought not form the basis for a stay of execution in the High Court.
2. On Substantial Loss
9. The principles governing stay of execution are well settled. In Meteine Ole Kilelu & 19 Others v Moses K. Nailole [2009] eKLR, the Court of Appeal held that where the decree is a money decree, an applicant must show that execution will cause irreparable or substantial loss.
10. The decree herein is a taxed bill of costs in favour of a reputable financial institution, ABSA Bank Kenya PLC, whose capacity to refund any sums recovered in execution is not in doubt.
11. The Applicant has not demonstrated that execution will render his intended appeal nugatory or that repayment would be impossible. On the contrary, the Court of Appeal in Peter Kamau Ikigu v Barclays Bank of Kenya Ltd & another [2014] KECA 278 (KLR) dismissed a similar stay application, finding no basis for alleging that the 1st Respondent could not refund costs if required.
12. I find no new or compelling circumstances to depart from that reasoning.
3. On Security for Due Performance
13. Order 42 Rule 6(2)(b) of the Civil Procedure Rules mandates that security must be offered before a stay can issue. The Applicant has neither deposited the taxed costs nor proposed any form of security.
14. In Machira t/a Machira & Co Advocates v East African Standard [2002] KEHC 1167 (KLR), the Court held that the successful litigant should not be kept from enjoying the fruits of judgment except upon exceptional circumstances and adequate security.
15. Similarly, the Court in Muriu v Hygrotech East Africa Ltd [2022] KEELRC 12811 (KLR) emphasised that an applicant who makes no effort toward settlement or provision of security does not merit the discretionary relief of stay.
16. The Applicant’s omission to offer any security, coupled with his history of dilatory conduct, reinforces the Respondent’s submission that this application is merely a tactic to delay satisfaction of a long-overdue decree.
4. On Good Faith and Participation in Taxation
17. The record demonstrates that the Applicant was duly served with both the Taxation Notice dated 19th July 2022 and the Ruling Notice dated 4th August 2022, as evidenced by filed Affidavits of Service.
18. The Applicant nonetheless failed to attend both sessions and now seeks to challenge proceedings in which he deliberately chose not to participate. This Court cannot aid an indolent litigant. Litigation must come to an end.
Disposition
19. Having considered all the circumstances, I am satisfied that the Applicant has failed to satisfy the mandatory conditions for stay of execution under Order 42 Rule 6. The alleged Supreme Court application does not present a valid or arguable basis, no substantial loss has been demonstrated, and no security has been offered.
20. Accordingly, the Notice of Motion dated 14th March 2023 is dismissed with costs to the 1st Respondent. The file is marked as closed.
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