RULING
1. Vide a Notice of Motion dated 3.7.2026 brought under the provisions of sections 1A,3,3A of the Civil Procedure Act (Cap 21) Laws of Kenya, Order 50 Rule 1 of the Civil Procedure rule (2010) amended 2020, Article 159(2)(d) of the Constitution of Kenya 2010 and supported by an affidavit of Peter Kaoga sworn on even date the appellant craves for orders of variation of the condition set on 17.6.2026 when this court granted him a conditional order of stay of execution of the Judgment of the trial court; that he deposits the entire judgment sum of Ksh 1,080,000/= in a joint interest earning account in the names of parties’ advocates. He urges this court to allow him deposit the security in monthly instalments of kshs.350,000, or until the determination of this appeal, whichever is earlier.
2. The respondent has opposed this application on grounds that the appellant had earlier on intimated to this court through his advocates his willingness to deposit the judgment sum with costs, all amounting to kshs.1,080,000 in a joint interest earning account of parties’ advocates within 30 days and premised upon that intimation this court granted him orders of stay of execution pending appeal. That no new facts have arisen that were not within his knowledge at the time of the hearing of his stay application to warrant a review.
3. This application was canvassed by way of oral submission which I have duly considered.
4. The appellant’s a case is that he is unable to comply with the condition of stay due to financial constraints attributed to the frustration of mining activities due to the provision of a defective compressor by the respondent.
5. The respondent maintains that the appellant has not met the threshold for review as prescribed under section 80 of the Civil Procedure Act and Order 45 of the Civil Procedure Rules 2010 (amended 2020) and that it’s admission of its inability to meet the security condition bespeaking of its impecunity and eventual inability to settle the decretal sum in the event its appeal fails; that possibility will prejudice the respondent.
6. Finally, the respondent submits that if this court were to indulge the appellant, it should only extent the time for depositing the judgment sum plus costs for a period of of 14 days only.
7. Having considered the application, the affidavits filed for and against it, I do find that indeed there are no new facts that were not within the knowledge of the appellant when he moved this court for orders of stay of execution. That notwithstanding, I do note that the appellant moved his court with speed and has explained it’s predicament to the court.
8. The purpose of security ordered under Order 42 Rule 6 is well settled. In Arun C Sharma v Ashana Raikundalia t/a A. Raikundalia & Co. Advocates & 2 others [2014] eKLR, Gikonyo, J. held that such security exists to guarantee the due performance of the decree that may ultimately bind the applicant, and that it is not intended to punish the judgment debtor. That formulation has since been consistently applied, including in Focin Motorcycle Co. Limited v Ann Wambui Wangui & another [2018] eKLR and, more recently, in Alginza Automobiles Limited v Mulei; Muisyo & another (Civil Appeal E077 of 2021) [2025] KEHC 6920 (KLR), where the court reiterated that security under Order 42 Rule 6 exists to hold the balance between an appellant's right to pursue an appeal without first paying out a decretal sum he may never recover, and a respondent's right, should the appeal fail, to the fruits of a judgment already obtained.
9. Upon balancing the convenience of all parties, I am inclined to review the orders made 17.6.2026 to the extend that the appellant do deposit the judgment sum plus costs in two monthly instalments of kshs.540,000 each on 17.8.2026 and 17.9.2026 and in the event of any one default the stay orders will automatically lapse and the respondent shall then be at liberty to execute.
10. The Respondent is awarded costs of this application assessed at kshs.15,000
Delivered, Dated and Signed at Milimani this 30th day of July 2026.
M.S. SHARIFF
JUDGE
1. Vide a Notice of Motion dated 3.7.2026 brought under the provisions of sections 1A,3,3A of the Civil Procedure Act (Cap 21) Laws of Kenya, Order 50 Rule 1 of the Civil Procedure rule (2010) amended 2020, Article 159(2)(d) of the Constitution of Kenya 2010 and supported by an affidavit of Peter Kaoga sworn on even date the appellant craves for orders of variation of the condition set on 17.6.2026 when this court granted him a conditional order of stay of execution of the Judgment of the trial court; that he deposits the entire judgment sum of Ksh 1,080,000/= in a joint interest earning account in the names of parties’ advocates. He urges this court to allow him deposit the security in monthly instalments of kshs.350,000, or until the determination of this appeal, whichever is earlier.
2. The respondent has opposed this application on grounds that the appellant had earlier on intimated to this court through his advocates his willingness to deposit the judgment sum with costs, all amounting to kshs.1,080,000 in a joint interest earning account of parties’ advocates within 30 days and premised upon that intimation this court granted him orders of stay of execution pending appeal. That no new facts have arisen that were not within his knowledge at the time of the hearing of his stay application to warrant a review.
3. This application was canvassed by way of oral submission which I have duly considered.
4. The appellant’s a case is that he is unable to comply with the condition of stay due to financial constraints attributed to the frustration of mining activities due to the provision of a defective compressor by the respondent.
5. The respondent maintains that the appellant has not met the threshold for review as prescribed under section 80 of the Civil Procedure Act and Order 45 of the Civil Procedure Rules 2010 (amended 2020) and that it’s admission of its inability to meet the security condition bespeaking of its impecunity and eventual inability to settle the decretal sum in the event its appeal fails; that possibility will prejudice the respondent.
6. Finally, the respondent submits that if this court were to indulge the appellant, it should only extent the time for depositing the judgment sum plus costs for a period of of 14 days only.
7. Having considered the application, the affidavits filed for and against it, I do find that indeed there are no new facts that were not within the knowledge of the appellant when he moved this court for orders of stay of execution. That notwithstanding, I do note that the appellant moved his court with speed and has explained it’s predicament to the court.
8. The purpose of security ordered under Order 42 Rule 6 is well settled. In Arun C Sharma v Ashana Raikundalia t/a A. Raikundalia & Co. Advocates & 2 others [2014] eKLR, Gikonyo, J. held that such security exists to guarantee the due performance of the decree that may ultimately bind the applicant, and that it is not intended to punish the judgment debtor. That formulation has since been consistently applied, including in Focin Motorcycle Co. Limited v Ann Wambui Wangui & another [2018] eKLR and, more recently, in Alginza Automobiles Limited v Mulei; Muisyo & another (Civil Appeal E077 of 2021) [2025] KEHC 6920 (KLR), where the court reiterated that security under Order 42 Rule 6 exists to hold the balance between an appellant's right to pursue an appeal without first paying out a decretal sum he may never recover, and a respondent's right, should the appeal fail, to the fruits of a judgment already obtained.
9. Upon balancing the convenience of all parties, I am inclined to review the orders made 17.6.2026 to the extend that the appellant do deposit the judgment sum plus costs in two monthly instalments of kshs.540,000 each on 17.8.2026 and 17.9.2026 and in the event of any one default the stay orders will automatically lapse and the respondent shall then be at liberty to execute.
10. The Respondent is awarded costs of this application assessed at kshs.15,000
Delivered, Dated and Signed at Milimani this 30th day of July 2026.
M.S. SHARIFF
JUDGE