' REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAROK
HCCA NO. E014 OF 2025
ANDREW MBOGO BUNYI…………...………APPELLANT/APPLICANT
-VRS-
TITUS MBILI ANDENGE……………………….…………..RESPONDENT
RULING
In an application dated 08/05/2025, the Applicant seeks a stay of execution pending appeal herein. The same is anchored in the provisions of Order 42, Rules 3 and 6 of the Criminal Procedure Code, Cap 21. It is based on the grounds of the Motion, which are reiterated by the content of the Affidavit of Andrew Mbogo Mbunyi, sworn on 04/12/2024.
The Applicant''s case is that a judgment against the appellants was entered on 25/01/2023, and thereafter, Auctioneer commenced execution by the proclamation of motor vehicle KCU 118A. The Applicant was not served with the summons or any other notices and was thus condemned unheard. He raises a triable issue because the accident was occasioned and substantially contributed to by the negligence of the driver of motor vehicle KBB 239G, and the proposed third party, being the owner of the said motor vehicle, is a relevant party to the suit.
The Applicant sought to set aside the Ex parte Judgment, which the trial court rejected; thus, an instant appeal was lodged against the ruling. In the grounds in support of the application, the focus is on the principles governing the stay of execution pending appeal.
Applicant further filed a supplementary affidavit after the Respondent filed the Replying Affidavit. The parties were directed to canvass an application via Submissions, but only the Respondent appears to have complied.
The Respondent Submissions emphasize that the satisfaction of conditions for stay of execution under Order 42 Rule 6 (2) of the Civil Procedure Code is crucial. The Respondent argues that the Applicant will not suffer substantial loss if the orders sought are not granted, as he can refund the decretal amount if the appeal succeeds.
Thus, no substantial loss can be occasioned in the instant situation. The Respondent says he is a plumber and that, from that business, he can raise funds to refund the decreed amount if the appeal succeeds. The other principle is that the Appellant is required to provide security for the due performance of the decree in issue. He ought to deposit money into a joint account with the Respondent''s advocate to guarantee payment of the decretal amount in the event the appeal fails. He relied on HCCA 19/019 victory Construction -vrs- B.M. 2019 e KLR .
ISSUES, ANALYSIS, AND DETERMINATION:
The application for a stay pending appeal is provided for under Order 42, Rule 6(2) of the Civil Procedure Code, Cap 21. The Appellant established on a balance of probabilities that if a stay is not granted, he would suffer irreparable loss. Secondly, he should tender a security capable of satisfying the impugned decree in the instant matter.
In the grounds of the application, the Applicant assures the court that he is ready to comply with any reasonable conditions that the court may impose in granting orders of stay.
The court is supposed to balance the interests of the contestants in the application. The Respondent avers that he can refund the decretal amount if he is paid and the appeal succeeds. However, though he claims to be a plumber, he has not provided any tangible evidence of how he would refund KShs. 2,059,908.00 and costs assessed Kshs. 176,300.00 in the event the appeal succeeds. Thus, in the absence of evidence of the ability to refund the amount, the court finds that the Appellant would suffer substantial loss in the event the appeal succeeds after the decretal has been paid to the Respondent or after execution for the same amount in issue. There will be no recovery of the decreed amount if paid.
Thus, the court finds that the interest of justice dictates that a conditional stay be granted in the following terms:
The stay of execution pending appeal is granted pending appeal on condition that the Applicant deposits half of the decretal amount in an interest-earning account in the joint names of the parties’ advocates in the next 30 days from the date herein, and in default execution to issue.
DATED AND DELIVERED VIA TEAMS AT NAROK
THIS 23.10.2025
…………………………..
CHARLES KARIUKI
JUDGE
'
IN THE HIGH COURT OF KENYA AT NAROK
HCCA NO. E014 OF 2025
ANDREW MBOGO BUNYI…………...………APPELLANT/APPLICANT
-VRS-
TITUS MBILI ANDENGE……………………….…………..RESPONDENT
RULING
In an application dated 08/05/2025, the Applicant seeks a stay of execution pending appeal herein. The same is anchored in the provisions of Order 42, Rules 3 and 6 of the Criminal Procedure Code, Cap 21. It is based on the grounds of the Motion, which are reiterated by the content of the Affidavit of Andrew Mbogo Mbunyi, sworn on 04/12/2024.
The Applicant''s case is that a judgment against the appellants was entered on 25/01/2023, and thereafter, Auctioneer commenced execution by the proclamation of motor vehicle KCU 118A. The Applicant was not served with the summons or any other notices and was thus condemned unheard. He raises a triable issue because the accident was occasioned and substantially contributed to by the negligence of the driver of motor vehicle KBB 239G, and the proposed third party, being the owner of the said motor vehicle, is a relevant party to the suit.
The Applicant sought to set aside the Ex parte Judgment, which the trial court rejected; thus, an instant appeal was lodged against the ruling. In the grounds in support of the application, the focus is on the principles governing the stay of execution pending appeal.
Applicant further filed a supplementary affidavit after the Respondent filed the Replying Affidavit. The parties were directed to canvass an application via Submissions, but only the Respondent appears to have complied.
The Respondent Submissions emphasize that the satisfaction of conditions for stay of execution under Order 42 Rule 6 (2) of the Civil Procedure Code is crucial. The Respondent argues that the Applicant will not suffer substantial loss if the orders sought are not granted, as he can refund the decretal amount if the appeal succeeds.
Thus, no substantial loss can be occasioned in the instant situation. The Respondent says he is a plumber and that, from that business, he can raise funds to refund the decreed amount if the appeal succeeds. The other principle is that the Appellant is required to provide security for the due performance of the decree in issue. He ought to deposit money into a joint account with the Respondent''s advocate to guarantee payment of the decretal amount in the event the appeal fails. He relied on HCCA 19/019 victory Construction -vrs- B.M. 2019 e KLR .
ISSUES, ANALYSIS, AND DETERMINATION:
The application for a stay pending appeal is provided for under Order 42, Rule 6(2) of the Civil Procedure Code, Cap 21. The Appellant established on a balance of probabilities that if a stay is not granted, he would suffer irreparable loss. Secondly, he should tender a security capable of satisfying the impugned decree in the instant matter.
In the grounds of the application, the Applicant assures the court that he is ready to comply with any reasonable conditions that the court may impose in granting orders of stay.
The court is supposed to balance the interests of the contestants in the application. The Respondent avers that he can refund the decretal amount if he is paid and the appeal succeeds. However, though he claims to be a plumber, he has not provided any tangible evidence of how he would refund KShs. 2,059,908.00 and costs assessed Kshs. 176,300.00 in the event the appeal succeeds. Thus, in the absence of evidence of the ability to refund the amount, the court finds that the Appellant would suffer substantial loss in the event the appeal succeeds after the decretal has been paid to the Respondent or after execution for the same amount in issue. There will be no recovery of the decreed amount if paid.
Thus, the court finds that the interest of justice dictates that a conditional stay be granted in the following terms:
The stay of execution pending appeal is granted pending appeal on condition that the Applicant deposits half of the decretal amount in an interest-earning account in the joint names of the parties’ advocates in the next 30 days from the date herein, and in default execution to issue.
DATED AND DELIVERED VIA TEAMS AT NAROK
THIS 23.10.2025
…………………………..
CHARLES KARIUKI
JUDGE
'