A. THE NOTICE OF MOTION DATED 18TH SEPTEMBER, 2025.
1. The Appellant’s notice of motion dated 18th November, 2024 is expressed to be brought under Section 3A of the Civil Procedure Act and Order 42 Rule 6(1) & (2) and Order 51 Rule 1 of the Civil Procedure Rules and seeks the following orders:
a. [Spent].
b. [Spent].
c. That the Honourable Court be pleased to grant a stay of execution of the judgment in Winam PMCC No. 40 of 2017 delivered on the 1st September, 2025 pending the hearing and determination of the appeal.
d. That costs of this application be awarded.
2. The grounds upon which the application is premised are as follows:
a. THAT by the said judgment, the Appellant herein has been condemned to pay the Respondent a sum of Ksh.5,925,000/- being special damages as well as costs of the suit and interest.
b. THAT the Appellant herein has since filed an appeal before this Honourable Court challenging the trial Court's judgment and award.
c. THAT the Respondent's Advocates have already moved the trial court for assessment of costs of the suit and taxation has been slated for the 29th October, 2025.
d. THAT as such, there is a real and imminent risk that if stay of execution is not granted, then the instant appeal will be rendered nugatory and the Appellant shall suffer substantial financial loss as the Respondent shall proceed with execution of the decretal amount plus costs.
e. THAT the instant application has been brought timeously and it is in the interest of justice that the orders sought be granted.
B. THE AFFIDAVIT IN SUPPORT OF THE APPLICATION.
3. The application is supported by the affidavit sworn on 18th September, 2025 by Richard Simbala, the Appellant’s legal officer.
4. The said deponent deposes in his affidavit that there is a judgement of the trial court in Winam SPMCC No. 40 of 2017, delivered on 1st September, 2025, in favour of the Respondent and that by the said judgement, the Appellant was ordered to pay the respondent the sum of Ksh. 5,925,000/- as special damages, together with costs of the suit and interest.
5. The deponent further states that the Appellant has since filed the instant appeal against the trial court’s judgement and award.
6. The deponent further contends that the Respondent has proceeded to assess the costs of the suit, indicating that execution proceedings are imminent. He asserts that there is a real and immediate risk that, in the absence of a stay of execution pending the appeal, the appeal may be rendered nugatory, and the Appellant will suffer substantial financial loss.
7. It is further deposed that the Appellant’s financial position will be adversely affected if required to pay the entire decretal sum and costs while the appeal is pending and that additionally, should the appeal succeed, the Appellant may suffer further loss if the Respondent is unable to refund the decretal sum.
8. The deponent further avers that the appeal raises bona fide triable issues and has a high likelihood of success and that the instant application has been made timeously and without delay.
9. The deponent concludes that it is in the interest of justice that the orders sought are granted.
C. THE AFFIDAVIT IN OPPOSITION TO THE APPLICATION.
10. The Appellant’s motion is opposed and to that end the Respondent filed a replying affidavit which he swore on 13th March, 2026.
11. In his affidavit, the Respondent states that he had initially refrained from filing a substantive response to the Appellant’s application for stay of execution, in the hope that the Appellant would accept a reasonable proposal to deposit the entire decretal sum in a joint interest-earning account and that the Appellant having declined this proposal, the Respondent was compelled to oppose the application in order to protect his irrefutable right to the fruits of the judgment delivered on 1st September, 2025 by the trial Court.
12. The Respondent avers that the grant of a stay pending appeal is not a matter of right, but rests upon the judicial discretion of the Court, which must be exercised judiciously and in accordance with the provisions under Order 42 Rule 6 of the Civil Procedure Rules. He contends that the Appellant has failed to satisfy the mandatory conditions precedent for the grant of a stay, particularly by not demonstrating any substantial loss that would be occasioned should the stay not be granted. Execution of the decretal sum, the Respondent argues, is a lawful process and cannot in itself constitute substantial loss.
13. The Respondent further disputes the Appellant’s claim that payment of the decretal sum would materially affect its financial position, noting that the Appellant is a nationally recognized microfinance institution and has not provided evidence, such as financial statements, to substantiate its claims.
14. The Respondent maintains that the allegations that he may be unable to refund the decretal sum in the event the appeal succeeds are described as unfounded apprehensions. The Respondent asserts that he possesses substantial assets, both fixed and liquid, and has to that end annexed an uncontested arbitral award in his favour amounting to Ksh.273,079,264.22/-, which he states is more than sufficient to cover the decretal sum of Ksh.5,925,000/-.
15. The Respondent notes that the Appellant has not indicated any security it intends to furnish as a condition for a stay, a requirement which he urges is central to the law governing the grant of an order of stay of execution pending appeal. Consequently, he states that the Appellant has failed to meet the legal requirements under Order 42 Rule 6 and that the application for stay cannot succeed on that basis.
16. Finally, the Respondent acknowledges the Court’s duty to balance the interests of both parties. In that regard, he urges the Court to consider his legal entitlement to enjoy the judgement and his demonstrated ability to refund the decretal sum if the appeal succeeds. In the alternative, he prays that if a stay of execution is granted, it be conditional upon immediate payment of three-quarters of the decretal sum to him, with the remaining balance deposited in a joint interest-bearing account controlled by the parties’ advocates.
D. THE APPELLANT’S FURTHER AFFIDAVIT.
17. In his further affidavit sworn on 24th March, 2026, the Appellant’s legal officer deposes that the Appellant does indeed stand to suffer substantial financial loss if required to pay the decretal sum of Ksh.5,925,000/- together with costs, noting that this is a significant amount by ordinary standards. He emphasizes that the prevailing economic situation in the country has created a hostile business environment, with little to no income, which further exacerbates the potential financial hardship.
18. The deponent asserts that being a well-known microfinance institution does not necessarily equate to being financially sound and that all the Appellant seeks is to pay a portion of the decretal sum in due compliance with the trial court’s judgement.
19. In response to the Respondent’s claims regarding financial capacity and the alleged arbitral award, the deponent points out that the Respondent has not provided evidence to substantiate these assertions.
20. Finally, the deponent underscores that the right to appeal is enshrined in the Constitution and that the Appellant’s request to pay a portion of the decretal sum represents a balanced approach that protects the rights of both parties while the appeal is pending.
21. The application was canvassed by way of written submissions.
E. THE APPELLANT’S SUBMISSIONS.
22. The Appellant submits that the sole issue for determination is whether the it has met the threshold under Order 42 Rule 6(2) of the Civil Procedure Rules. It contends in the affirmative, noting that two of the pre-requisites, that is, substantial loss and timeliness of filing the motion, are not in contention between the parties.
23. The Appellant further submits that regarding the third pre-requisite, namely depositing security for due performance of the decree, the Court should allow the it to deposit at least half of the decretal sum as a condition for stay of execution pending determination of the appeal. It emphasizes that the decretal sum of Ksh.5,925,000/- is substantial, particularly in light of the current economic hardships affecting businesses in the country.
24. The Appellant submits that attempts at negotiating the amount to be paid between the parties on 10th December, 2025 were unsuccessful, necessitating the present application. It urges the Court to exercise its discretion in granting the stay of execution on the proposed terms, noting that execution at this stage poses a significant financial burden on the Appellant and threatens to undermine its constitutional right of appeal.
25. In support of the proposed terms, the Appellant relies on the decision in Kuria v Michael (Civil Appeal E031 of 2022) [2023] КЕНС 887 (KLR), where the Court permitted the deposit of half of the decretal sum pending the outcome of the appeal.
26. In conclusion, the Appellant prays that the Court allows the application as prayed and on the terms proposed.
F. THE RESPONDENT’S SUBMISSIONS.
27. On his part, the Respondent submits that the issue for determination is whether the Appellant is entitled to an order of stay of execution pending appeal, and if so, the nature and sufficiency of security to be furnished. He contends that although he was initially not opposed to the grant of stay on condition that the entire decretal sum of Ksh.5,925,000/- be deposited in a joint interest-earning account, the Appellant declined this proposal, thereby necessitating his formal opposition to the application.
28. The Respondent submits that the principles governing stay of execution are well settled under Order 42 Rule 6 of the Civil Procedure Rules, which require an Applicant to demonstrate substantial loss, timeliness and provision of security. He contends that the Appellant has failed to satisfy these mandatory requirements, particularly the requirement of substantial loss.
29. Relying on James Wangalwa & Another v Agnes Naliaka Cheseto [2012] eKLR, the Respondent submits that execution is a lawful process and does not, in itself, amount to substantial loss. He further relies on Shell Limited v Kibiru and Another [1986] KLR 410, to argue that substantial loss must be specifically proved and not merely alleged and that without such proof, there is no justification for depriving a successful litigant of the fruits of his judgement.
30. The Respondent further submits that the Appellant’s assertion that he would be unable to refund the decretal sum is unfounded. He maintains that he has demonstrated his financial capability, including through an arbitral award in his favour amounting to Ksh.273,079,264.22/-, and relies on the case of Shell Limited v Kibiru to emphasize that where a Respondent is a person of means, there is no basis for concluding that the appeal would be rendered nugatory.
31. On the issue of security, the Respondent submits that the Appellant has failed to furnish adequate security as required by law. He argues that security for a money decree must be in monetary form, preferably deposited in a joint interest-earning account, and not by way of an unspecified bank guarantee. In this regard, he relies on the authorities of Ngugi v Karanja (Civil Appeal E214 of 2024) [2025] KENHC 11353 (KLR) and Onesmus Mburu Njuguna v Samson Kitire Kuna [2007] eKLR, which underscore that security for a money decree should be in cash rather than other forms such as title deeds or non-liquid instruments.
32. The Respondent further relies on the decisions of Jimmy & 2 others v Wakulwa (Civil Appeal E088 of 2023) [2024] KENHC 1105 (KLR) and Mwaura Karuga t/a Limit Enterprises v Kenya Bus Services Ltd & 4 Others [2015] eKLR to submit that the security to be furnished must cover the entire decretal sum, including costs and interest, as it is intended to secure the due performance of the decree that may ultimately be binding on the applicant.
33. The Respondent urges the Court to exercise its discretion judiciously, bearing in mind the principle that a successful litigant is entitled to the fruits of judgment. In support of this position, he cites Machira T/A Machira & Co Advocates vs. East African Standard (No 2) [2002] KLR 63, emphasizing that courts must not unduly favour an appellant at the expense of a successful party. He also relies on Equity Bank Limited v West Link Mbo Limited, Civil Application No. 78 of 2011, to underscore the need for the Court to balance the competing rights and interests of the parties in the interests of justice.
34. In conclusion, the Respondent submits that the Appellant’s application is devoid of merit and should be dismissed with costs. In the alternative, he prays that should the Court be inclined to grant a stay, it should be on condition that the Appellant pays three-quarters of the decretal sum to him and deposits the balance in a joint interest-earning account, as this would fairly balance the interests of both parties.
G. ISSUES FOR DETERMINATION.
35. Based on the application, affidavits and submissions by both parties, the issues for determination are as follows:
i. Whether the Appellant has satisfied the conditions for the grant of an order of stay of execution pending appeal as set out under Order 42 Rule 6(2) of the Civil Procedure Rules, particularly with regard to substantial loss and timeliness of the application.
ii. Whether the Appellant has proposed or is capable of furnishing adequate and appropriate security for the due performance of the decree, and if so, the nature and extent of such security.
iii. Whether, in the circumstances of this case, the Court should exercise its discretion to grant a stay of execution, and if so, on what terms so as to balance the competing interests of the parties.
iv. Who should bear the costs of the application?
H. ANALYSIS AND FINDINGS.
36. I will proceed to address and determine the four issues.
37. The first issue for determination is whether the Appellant has satisfied the conditions for the grant of an order of stay of execution pending appeal as set out under Order 42 Rule 6(2) of the Civil Procedure Rules, particularly with regard to substantial loss and timeliness of the application.
38. From the material placed before this Court, it is evident that the application was filed without unreasonable delay. The judgement sought to be stayed was delivered on 1st September, 2025, and the present application was filed shortly thereafter on 18th September, 2025. This, in the Court’s view, satisfies the requirement of timeliness under Order 42 Rule 6(2).
39. With regard to substantial loss, the Court notes that both parties, in their respective submissions, are in agreement that this limb is not in contention. The Appellant has asserted that it stands to suffer financial loss if compelled to satisfy the decretal sum pending appeal, while the Respondent has primarily taken issue with the sufficiency of proof rather than the existence of the claim itself.
40. In light of the parties’ concurrence on this aspect, the Court is prepared to accept, without delving into an extensive analysis, that the requirement of substantial loss has, for present purposes, been sufficiently raised.
41. Accordingly, the Court finds that the Appellant has satisfied the first two conditions under Order 42 Rule 6(2) of the Civil Procedure Rules, namely, that the application was filed timeously and that the issue of substantial loss, is deemed established for purposes of this application. The determination of the application therefore turns on the remaining requirement relating to the provision of security and the appropriate exercise of the Court’s discretion.
42. The second and third issues for determination are whether the Appellant has proposed or is capable of furnishing adequate and appropriate security for the due performance of the decree, and whether, in the circumstances, this Court should exercise its discretion to grant a stay of execution and on what terms.
43. The requirement for security is anchored under Order 42 Rule 6(2)(b) of the Civil Procedure Rules, which obligates an Applicant to furnish such security as the Court may order for the due performance of the decree.
44. The purpose of such security is not punitive but is intended to safeguard the interests of the successful litigant pending the determination of the appeal.
45. In the present case, the decree sought to be stayed is a money decree in the sum of Ksh.5,925,000/- together with costs and interest. The Appellant has proposed to deposit only half of the decretal sum as security, contending that the same would suffice in the circumstances. The Respondent, on the other hand, maintains that security must cover the entire decretal sum and should be in monetary form, preferably deposited in a joint interest-earning account.
46. This Court is persuaded by the Respondent’s position. It is now settled that where the decree is purely monetary in nature, the most appropriate and sufficient form of security is the deposit of the decretal sum, or such substantial portion thereof as would adequately secure the Respondent. The security must be one which shall achieve due performance of the decree which might ultimately be binding on the Applicant.
47. In the case of Onesmus Mburu Njuguna v Samson Kitire Kuna [2007] eKLR, the Court emphasized that:
“The judgment against the Appellant is a money decree… it would be fair and just that the security to be deposited should be in form of money… The security should therefore be in form of money.”
48. The security envisaged under Order 42 Rule 6 must in my view be commensurate with the entire decree, inclusive of costs and interest, so as to fully protect the successful party.
49. On the basis of the foregoing, this Court finds that the Appellant’s proposal to deposit only half of the decretal sum does not sufficiently secure the due performance of the decree. To order otherwise would expose the Respondent to unnecessary risk, particularly in the event the appeal fails.
50. At the same time, the Court is alive to its duty to balance the competing rights of the parties. The Appellant has an undoubted right of appeal, while the Respondent is entitled to enjoy the fruits of his judgement. This principle was succinctly stated in the case of Machira T/A Machira & Co Advocates vs. East African Standard (No 2) [2002] KLR 63, where the Court observed that:
“The ordinary principle is that a successful party is entitled to the fruits of his judgment… and that principle must be put into effect.”
I. DISPOSITION.
51. In the circumstances, the Court is satisfied that a conditional stay of execution would meet the ends of justice. However, such stay must be predicated upon the furnishing of adequate security. Accordingly, this Court finds that the appropriate and sufficient security, given the nature of the decree, is the deposit of the entire decretal sum in an interest-earning account in the joint names of the parties’ advocates within a specified period.
52. In the result, I will allow the application and order that there shall be a stay execution of the judgement and decree in Winam PMCC No. 40 of 2017 pending the hearing and determination of the appeal preferred herein on condition that the Appellant shall deposit the decretal amount of Ksh.5,925,000/- in a joint interest-earning account in the names of the Advocates for both parties, within 60 days from the date of this ruling.
53. Costs of the application, upon compliance with the order of furnishing security, shall abide the outcome of the appeal.
54. In the event that the condition of furnishing security is not met, the application dated 18th September, 2025 will be deemed as having been dismissed with costs, effective the date of this ruling.
DELIVERED (virtually), DATED & SIGNED this 17th day of April, 2026.
JOE M. OMIDO.
JUDGE
FOR APPELLANT: No appearance.
FOR RESPONDENT: Mr. Nyakiti for Mr. Agwara.
COURT ASSISTANTS: Mr. Ngoge & Mr. Juma.
Court: Mention for admission of the appeal and further directions on 23rd July, 2026. A mention notice to be served.
JOE M. OMIDO.
JUDGE
1. The Appellant’s notice of motion dated 18th November, 2024 is expressed to be brought under Section 3A of the Civil Procedure Act and Order 42 Rule 6(1) & (2) and Order 51 Rule 1 of the Civil Procedure Rules and seeks the following orders:
a. [Spent].
b. [Spent].
c. That the Honourable Court be pleased to grant a stay of execution of the judgment in Winam PMCC No. 40 of 2017 delivered on the 1st September, 2025 pending the hearing and determination of the appeal.
d. That costs of this application be awarded.
2. The grounds upon which the application is premised are as follows:
a. THAT by the said judgment, the Appellant herein has been condemned to pay the Respondent a sum of Ksh.5,925,000/- being special damages as well as costs of the suit and interest.
b. THAT the Appellant herein has since filed an appeal before this Honourable Court challenging the trial Court's judgment and award.
c. THAT the Respondent's Advocates have already moved the trial court for assessment of costs of the suit and taxation has been slated for the 29th October, 2025.
d. THAT as such, there is a real and imminent risk that if stay of execution is not granted, then the instant appeal will be rendered nugatory and the Appellant shall suffer substantial financial loss as the Respondent shall proceed with execution of the decretal amount plus costs.
e. THAT the instant application has been brought timeously and it is in the interest of justice that the orders sought be granted.
B. THE AFFIDAVIT IN SUPPORT OF THE APPLICATION.
3. The application is supported by the affidavit sworn on 18th September, 2025 by Richard Simbala, the Appellant’s legal officer.
4. The said deponent deposes in his affidavit that there is a judgement of the trial court in Winam SPMCC No. 40 of 2017, delivered on 1st September, 2025, in favour of the Respondent and that by the said judgement, the Appellant was ordered to pay the respondent the sum of Ksh. 5,925,000/- as special damages, together with costs of the suit and interest.
5. The deponent further states that the Appellant has since filed the instant appeal against the trial court’s judgement and award.
6. The deponent further contends that the Respondent has proceeded to assess the costs of the suit, indicating that execution proceedings are imminent. He asserts that there is a real and immediate risk that, in the absence of a stay of execution pending the appeal, the appeal may be rendered nugatory, and the Appellant will suffer substantial financial loss.
7. It is further deposed that the Appellant’s financial position will be adversely affected if required to pay the entire decretal sum and costs while the appeal is pending and that additionally, should the appeal succeed, the Appellant may suffer further loss if the Respondent is unable to refund the decretal sum.
8. The deponent further avers that the appeal raises bona fide triable issues and has a high likelihood of success and that the instant application has been made timeously and without delay.
9. The deponent concludes that it is in the interest of justice that the orders sought are granted.
C. THE AFFIDAVIT IN OPPOSITION TO THE APPLICATION.
10. The Appellant’s motion is opposed and to that end the Respondent filed a replying affidavit which he swore on 13th March, 2026.
11. In his affidavit, the Respondent states that he had initially refrained from filing a substantive response to the Appellant’s application for stay of execution, in the hope that the Appellant would accept a reasonable proposal to deposit the entire decretal sum in a joint interest-earning account and that the Appellant having declined this proposal, the Respondent was compelled to oppose the application in order to protect his irrefutable right to the fruits of the judgment delivered on 1st September, 2025 by the trial Court.
12. The Respondent avers that the grant of a stay pending appeal is not a matter of right, but rests upon the judicial discretion of the Court, which must be exercised judiciously and in accordance with the provisions under Order 42 Rule 6 of the Civil Procedure Rules. He contends that the Appellant has failed to satisfy the mandatory conditions precedent for the grant of a stay, particularly by not demonstrating any substantial loss that would be occasioned should the stay not be granted. Execution of the decretal sum, the Respondent argues, is a lawful process and cannot in itself constitute substantial loss.
13. The Respondent further disputes the Appellant’s claim that payment of the decretal sum would materially affect its financial position, noting that the Appellant is a nationally recognized microfinance institution and has not provided evidence, such as financial statements, to substantiate its claims.
14. The Respondent maintains that the allegations that he may be unable to refund the decretal sum in the event the appeal succeeds are described as unfounded apprehensions. The Respondent asserts that he possesses substantial assets, both fixed and liquid, and has to that end annexed an uncontested arbitral award in his favour amounting to Ksh.273,079,264.22/-, which he states is more than sufficient to cover the decretal sum of Ksh.5,925,000/-.
15. The Respondent notes that the Appellant has not indicated any security it intends to furnish as a condition for a stay, a requirement which he urges is central to the law governing the grant of an order of stay of execution pending appeal. Consequently, he states that the Appellant has failed to meet the legal requirements under Order 42 Rule 6 and that the application for stay cannot succeed on that basis.
16. Finally, the Respondent acknowledges the Court’s duty to balance the interests of both parties. In that regard, he urges the Court to consider his legal entitlement to enjoy the judgement and his demonstrated ability to refund the decretal sum if the appeal succeeds. In the alternative, he prays that if a stay of execution is granted, it be conditional upon immediate payment of three-quarters of the decretal sum to him, with the remaining balance deposited in a joint interest-bearing account controlled by the parties’ advocates.
D. THE APPELLANT’S FURTHER AFFIDAVIT.
17. In his further affidavit sworn on 24th March, 2026, the Appellant’s legal officer deposes that the Appellant does indeed stand to suffer substantial financial loss if required to pay the decretal sum of Ksh.5,925,000/- together with costs, noting that this is a significant amount by ordinary standards. He emphasizes that the prevailing economic situation in the country has created a hostile business environment, with little to no income, which further exacerbates the potential financial hardship.
18. The deponent asserts that being a well-known microfinance institution does not necessarily equate to being financially sound and that all the Appellant seeks is to pay a portion of the decretal sum in due compliance with the trial court’s judgement.
19. In response to the Respondent’s claims regarding financial capacity and the alleged arbitral award, the deponent points out that the Respondent has not provided evidence to substantiate these assertions.
20. Finally, the deponent underscores that the right to appeal is enshrined in the Constitution and that the Appellant’s request to pay a portion of the decretal sum represents a balanced approach that protects the rights of both parties while the appeal is pending.
21. The application was canvassed by way of written submissions.
E. THE APPELLANT’S SUBMISSIONS.
22. The Appellant submits that the sole issue for determination is whether the it has met the threshold under Order 42 Rule 6(2) of the Civil Procedure Rules. It contends in the affirmative, noting that two of the pre-requisites, that is, substantial loss and timeliness of filing the motion, are not in contention between the parties.
23. The Appellant further submits that regarding the third pre-requisite, namely depositing security for due performance of the decree, the Court should allow the it to deposit at least half of the decretal sum as a condition for stay of execution pending determination of the appeal. It emphasizes that the decretal sum of Ksh.5,925,000/- is substantial, particularly in light of the current economic hardships affecting businesses in the country.
24. The Appellant submits that attempts at negotiating the amount to be paid between the parties on 10th December, 2025 were unsuccessful, necessitating the present application. It urges the Court to exercise its discretion in granting the stay of execution on the proposed terms, noting that execution at this stage poses a significant financial burden on the Appellant and threatens to undermine its constitutional right of appeal.
25. In support of the proposed terms, the Appellant relies on the decision in Kuria v Michael (Civil Appeal E031 of 2022) [2023] КЕНС 887 (KLR), where the Court permitted the deposit of half of the decretal sum pending the outcome of the appeal.
26. In conclusion, the Appellant prays that the Court allows the application as prayed and on the terms proposed.
F. THE RESPONDENT’S SUBMISSIONS.
27. On his part, the Respondent submits that the issue for determination is whether the Appellant is entitled to an order of stay of execution pending appeal, and if so, the nature and sufficiency of security to be furnished. He contends that although he was initially not opposed to the grant of stay on condition that the entire decretal sum of Ksh.5,925,000/- be deposited in a joint interest-earning account, the Appellant declined this proposal, thereby necessitating his formal opposition to the application.
28. The Respondent submits that the principles governing stay of execution are well settled under Order 42 Rule 6 of the Civil Procedure Rules, which require an Applicant to demonstrate substantial loss, timeliness and provision of security. He contends that the Appellant has failed to satisfy these mandatory requirements, particularly the requirement of substantial loss.
29. Relying on James Wangalwa & Another v Agnes Naliaka Cheseto [2012] eKLR, the Respondent submits that execution is a lawful process and does not, in itself, amount to substantial loss. He further relies on Shell Limited v Kibiru and Another [1986] KLR 410, to argue that substantial loss must be specifically proved and not merely alleged and that without such proof, there is no justification for depriving a successful litigant of the fruits of his judgement.
30. The Respondent further submits that the Appellant’s assertion that he would be unable to refund the decretal sum is unfounded. He maintains that he has demonstrated his financial capability, including through an arbitral award in his favour amounting to Ksh.273,079,264.22/-, and relies on the case of Shell Limited v Kibiru to emphasize that where a Respondent is a person of means, there is no basis for concluding that the appeal would be rendered nugatory.
31. On the issue of security, the Respondent submits that the Appellant has failed to furnish adequate security as required by law. He argues that security for a money decree must be in monetary form, preferably deposited in a joint interest-earning account, and not by way of an unspecified bank guarantee. In this regard, he relies on the authorities of Ngugi v Karanja (Civil Appeal E214 of 2024) [2025] KENHC 11353 (KLR) and Onesmus Mburu Njuguna v Samson Kitire Kuna [2007] eKLR, which underscore that security for a money decree should be in cash rather than other forms such as title deeds or non-liquid instruments.
32. The Respondent further relies on the decisions of Jimmy & 2 others v Wakulwa (Civil Appeal E088 of 2023) [2024] KENHC 1105 (KLR) and Mwaura Karuga t/a Limit Enterprises v Kenya Bus Services Ltd & 4 Others [2015] eKLR to submit that the security to be furnished must cover the entire decretal sum, including costs and interest, as it is intended to secure the due performance of the decree that may ultimately be binding on the applicant.
33. The Respondent urges the Court to exercise its discretion judiciously, bearing in mind the principle that a successful litigant is entitled to the fruits of judgment. In support of this position, he cites Machira T/A Machira & Co Advocates vs. East African Standard (No 2) [2002] KLR 63, emphasizing that courts must not unduly favour an appellant at the expense of a successful party. He also relies on Equity Bank Limited v West Link Mbo Limited, Civil Application No. 78 of 2011, to underscore the need for the Court to balance the competing rights and interests of the parties in the interests of justice.
34. In conclusion, the Respondent submits that the Appellant’s application is devoid of merit and should be dismissed with costs. In the alternative, he prays that should the Court be inclined to grant a stay, it should be on condition that the Appellant pays three-quarters of the decretal sum to him and deposits the balance in a joint interest-earning account, as this would fairly balance the interests of both parties.
G. ISSUES FOR DETERMINATION.
35. Based on the application, affidavits and submissions by both parties, the issues for determination are as follows:
i. Whether the Appellant has satisfied the conditions for the grant of an order of stay of execution pending appeal as set out under Order 42 Rule 6(2) of the Civil Procedure Rules, particularly with regard to substantial loss and timeliness of the application.
ii. Whether the Appellant has proposed or is capable of furnishing adequate and appropriate security for the due performance of the decree, and if so, the nature and extent of such security.
iii. Whether, in the circumstances of this case, the Court should exercise its discretion to grant a stay of execution, and if so, on what terms so as to balance the competing interests of the parties.
iv. Who should bear the costs of the application?
H. ANALYSIS AND FINDINGS.
36. I will proceed to address and determine the four issues.
37. The first issue for determination is whether the Appellant has satisfied the conditions for the grant of an order of stay of execution pending appeal as set out under Order 42 Rule 6(2) of the Civil Procedure Rules, particularly with regard to substantial loss and timeliness of the application.
38. From the material placed before this Court, it is evident that the application was filed without unreasonable delay. The judgement sought to be stayed was delivered on 1st September, 2025, and the present application was filed shortly thereafter on 18th September, 2025. This, in the Court’s view, satisfies the requirement of timeliness under Order 42 Rule 6(2).
39. With regard to substantial loss, the Court notes that both parties, in their respective submissions, are in agreement that this limb is not in contention. The Appellant has asserted that it stands to suffer financial loss if compelled to satisfy the decretal sum pending appeal, while the Respondent has primarily taken issue with the sufficiency of proof rather than the existence of the claim itself.
40. In light of the parties’ concurrence on this aspect, the Court is prepared to accept, without delving into an extensive analysis, that the requirement of substantial loss has, for present purposes, been sufficiently raised.
41. Accordingly, the Court finds that the Appellant has satisfied the first two conditions under Order 42 Rule 6(2) of the Civil Procedure Rules, namely, that the application was filed timeously and that the issue of substantial loss, is deemed established for purposes of this application. The determination of the application therefore turns on the remaining requirement relating to the provision of security and the appropriate exercise of the Court’s discretion.
42. The second and third issues for determination are whether the Appellant has proposed or is capable of furnishing adequate and appropriate security for the due performance of the decree, and whether, in the circumstances, this Court should exercise its discretion to grant a stay of execution and on what terms.
43. The requirement for security is anchored under Order 42 Rule 6(2)(b) of the Civil Procedure Rules, which obligates an Applicant to furnish such security as the Court may order for the due performance of the decree.
44. The purpose of such security is not punitive but is intended to safeguard the interests of the successful litigant pending the determination of the appeal.
45. In the present case, the decree sought to be stayed is a money decree in the sum of Ksh.5,925,000/- together with costs and interest. The Appellant has proposed to deposit only half of the decretal sum as security, contending that the same would suffice in the circumstances. The Respondent, on the other hand, maintains that security must cover the entire decretal sum and should be in monetary form, preferably deposited in a joint interest-earning account.
46. This Court is persuaded by the Respondent’s position. It is now settled that where the decree is purely monetary in nature, the most appropriate and sufficient form of security is the deposit of the decretal sum, or such substantial portion thereof as would adequately secure the Respondent. The security must be one which shall achieve due performance of the decree which might ultimately be binding on the Applicant.
47. In the case of Onesmus Mburu Njuguna v Samson Kitire Kuna [2007] eKLR, the Court emphasized that:
“The judgment against the Appellant is a money decree… it would be fair and just that the security to be deposited should be in form of money… The security should therefore be in form of money.”
48. The security envisaged under Order 42 Rule 6 must in my view be commensurate with the entire decree, inclusive of costs and interest, so as to fully protect the successful party.
49. On the basis of the foregoing, this Court finds that the Appellant’s proposal to deposit only half of the decretal sum does not sufficiently secure the due performance of the decree. To order otherwise would expose the Respondent to unnecessary risk, particularly in the event the appeal fails.
50. At the same time, the Court is alive to its duty to balance the competing rights of the parties. The Appellant has an undoubted right of appeal, while the Respondent is entitled to enjoy the fruits of his judgement. This principle was succinctly stated in the case of Machira T/A Machira & Co Advocates vs. East African Standard (No 2) [2002] KLR 63, where the Court observed that:
“The ordinary principle is that a successful party is entitled to the fruits of his judgment… and that principle must be put into effect.”
I. DISPOSITION.
51. In the circumstances, the Court is satisfied that a conditional stay of execution would meet the ends of justice. However, such stay must be predicated upon the furnishing of adequate security. Accordingly, this Court finds that the appropriate and sufficient security, given the nature of the decree, is the deposit of the entire decretal sum in an interest-earning account in the joint names of the parties’ advocates within a specified period.
52. In the result, I will allow the application and order that there shall be a stay execution of the judgement and decree in Winam PMCC No. 40 of 2017 pending the hearing and determination of the appeal preferred herein on condition that the Appellant shall deposit the decretal amount of Ksh.5,925,000/- in a joint interest-earning account in the names of the Advocates for both parties, within 60 days from the date of this ruling.
53. Costs of the application, upon compliance with the order of furnishing security, shall abide the outcome of the appeal.
54. In the event that the condition of furnishing security is not met, the application dated 18th September, 2025 will be deemed as having been dismissed with costs, effective the date of this ruling.
DELIVERED (virtually), DATED & SIGNED this 17th day of April, 2026.
JOE M. OMIDO.
JUDGE
FOR APPELLANT: No appearance.
FOR RESPONDENT: Mr. Nyakiti for Mr. Agwara.
COURT ASSISTANTS: Mr. Ngoge & Mr. Juma.
Court: Mention for admission of the appeal and further directions on 23rd July, 2026. A mention notice to be served.
JOE M. OMIDO.
JUDGE