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 there be a stay of execution of the judgment/decree pending the hearing and determination of the appeal preferred therefrom against the court (sic) dated 8th November, 2024 in the small claim court at Kisumu.
d. THAT the costs of this application be provided for.
2. The grounds upon which the application is premised are as follows:
a. THAT this Honourable Court delivered its judgment in Kisumu Small Claims Case No. E261 of 2024 on 8th November, 2024 condemning the Appellant to pay the Respondent damages of Ksh.149,270/-.
b. THAT the Appellant, dissatisfied with said judgment, preferred an appeal against the judgment in Kisumu Small Claims Case No. E261 of 2024.
c. THAT Appellant has an arguable appeal with high chances of success.
d. THAT if execution of the said judgment/decree is not stayed, the aforesaid appeal will be rendered nugatory and would thereby occasion substantial loss to the Appellant as the Respondent may not be in a financial position to pay back any funds paid out to him should the appeal be successful.
e. THAT the Respondent is at liberty and may proceed to execute the decree subject of the preferred appeal at any time.
f. THAT in the premises, it is only fair and just that there be a stay of execution of the judgment/decree subject herein pending the inter-parties hearing and determination of the instant application and/or the hearing and determination of the preferred appeal as the case would be.
g. THAT the Appellant is ready and willing to adhere to any conditions that the Honourable Court will set in order to be granted the stay of execution of the judgment/decree of the court.
h. THAT the Appellant has moved the court timeously without undue delay.
i. THAT in the premises, it is only fair and just that the application be allowed as prayed.
3. The application is supported by the supporting and further supporting affidavits sworn by the Appellant on 18th November, 2024 and on 17th June, 2025, respectively.
4. The Appellant states in his affidavits that judgment in Kisumu Small Claims Case No. E261 of 2024 was delivered on 8th November, 2024, condemning him to pay half of the damages amounting to Ksh.74,635/-, which decision he is dissatisfied with and has since appealed against as evidenced by the annexed memorandum of appeal. He has also annexed to his further supporting affidavit the proceedings and judgment of the lower court.
5. The Appellant states that the said appeal raises arguable and triable issues with high chances of success, and is therefore not frivolous.
6. The Appellant contends that there exists a real and imminent risk of execution of the decree by the Respondent, which would render the pending appeal nugatory and reduce it to a mere academic exercise.
7. The Appellant asserts that unless this Honourable Court grants an order of stay of execution, he stands to suffer substantial loss, as the decretal sum may not be recoverable from the Respondent in the event the appeal succeeds.
8. The Appellant avers that this application has been brought without undue delay and in utmost good faith, solely in the interest of justice.
9. The Appellant maintains that the Respondent will not suffer any prejudice if the orders sought are granted, and that any inconvenience can be adequately compensated by way of costs.
10. The Appellant further expresses willingness to abide by such reasonable conditions as this Court may impose, including the provision of security for the due performance of the decree.
11. The Appellant therefore prays that this Court be pleased to grant an order of stay of execution pending the hearing and determination of the appeal, urging that the application is meritorious and in the interest of justice.
12. The application is opposed and to that end the Respondent filed a replying affidavit sworn on 22nd August, 2025 by his Counsel Ms. Margaret Ongaro Arianda.
13. The Respondent’s Counsel states that judgment was entered in favour of the Respondent in Kisumu Small Claims Case No. E261 of 2024 on 8th November, 2024 for a sum of Ksh.74,635/- together with costs and interest, as evidenced by the annexed judgment marked MOA-1.
14. Counsel contends that the Appellant has not demonstrated that the intended appeal is arguable or has any prospects of success, nor has he satisfied the requirements for a stay of execution under Order 42 Rule 6 of the Civil Procedure Rules.
15. It is asserted by Counsel that the Appellant has failed to show how he will suffer substantial loss, noting that mere assertions without supporting evidence are insufficient.
16. Further, Counsel states that the Appellant has not shown how the appeal would be rendered nugatory if the stay is not granted, emphasizing that bare statements are inadequate.
17. The Respondent maintains that no sufficient cause has been shown to justify the grant of the orders sought.
18. Counsel contends that the application is an afterthought, filed solely to delay execution and prevent the Respondent, as a successful litigant, from enjoying the fruits of his judgment.
19. It is further contended in the replying affidavit that the application lacks merit, is frivolous and vexatious and constitutes an abuse of the court process, and therefore ought to be dismissed with costs.
20. The Respondent proposes that if the Court is inclined to grant a stay of execution, it should be conditional upon payment of at least three-quarters of the decretal sum to the Respondent, with the balance deposited into a joint interest-earning account in the names of both advocates on record for the parties.
21. Finally, Counsel asserts that the Respondent is a person of means and is capable of refunding the decretal amount in the event that the appeal succeeds.
22. The application was canvassed by way of brief oral arguments and/or submissions.
23. The Appellant contends that the claim before the trial court arose from tortious liability following a road traffic accident involving a motor vehicle insured by Monarch Insurance Company Limited, and that, under the Insurance (Motor Vehicles Third Party Risks) Act, the insurer is obliged to satisfy the decretal amount.
24. The Respondent argues that the claim against him is acrimonious and malicious, asserting that the Appellant should have pursued the insurer, as valid cover was in place at the time of the accident.
25. On his part, the Respondent submits that the court is called upon to determine two issues: first, whether the Appellant has satisfied the conditions precedent for the grant of a stay of execution pending appeal; and second, whether the Appellant should be required to deposit security for the due performance of the decree, and if so, the appropriate nature of such security.
26. The Respondent contends that the Appellant has not met the necessary conditions for a stay of execution order. However, he urges that should the Court be inclined to grant the Appellant’s motion, such an order should be made conditional upon payment of at least three-quarters of the decretal sum to the Respondent, with the balance deposited into a joint interest-earning account in the names of both parties’ advocates.
27. The Respondent further submits that Monarch Insurance Company Limited is not a party to these proceedings, and since liability in the lower court was specifically imposed on the Appellant, the Respondent is entitled to pursue the Appellant for the decretal amount awarded.
28. Based on the facts, affidavits, and submissions, the three issues that emerge for determination are as follows:
i. Whether Monarch Insurance Company Limited, as the insurer of the motor vehicle involved, is liable to satisfy the decretal amount awarded by the trial court.
ii. Whether the Appellant has met the conditions for the grant of a stay of execution pending appeal, including showing arguable grounds of appeal, risk of substantial loss if execution proceeds, absence of undue prejudice to the Respondent, and that the application was made in good faith without abuse of court process.
iii. Who should bear the costs of the application?
29. I will proceed to address and determine the issues.
30. With regard to the first issue, which is whether Monarch Insurance Company Limited, as the insurer of the motor vehicle involved, is liable to satisfy the decretal amount awarded by the trial court, it must, at the outset be emphasized that Monarch Insurance Company Limited is not a party to these proceedings, and no relief directly against Monarch was sought in the Appellant’s application or supporting affidavits.
31. The sole claim raised against Monarch emerged for the first time in the Appellant’s oral submissions before the Court, which is not a proper procedural avenue to introduce new issues that have not been pleaded or supported by evidence in the affidavits or motion papers. Issues of law and fact must ordinarily arise from pleadings or affidavits, not submissions, so that the opposite party may have an opportunity to respond fully on affidavit.
32. Be that as it may, it is common ground in the record that judgement in the lower court was entered against the Appellant in personam and not against Monarch Insurance Company Limited. A judgement in personam binds only the parties before the court. A person or other entity that is not a party in the proceedings, such as Monarch, cannot be compelled by that judgement to pay the decretal sum in the same proceedings.
33. The applicable law is that the Respondent is within his rights to pursue the Appellant personally for the amount adjudged or, if the Respondent chooses, to file a separate declaratory action against the insurer seeking to enforce any rights available under statute or contract. That choice, however, lies exclusively with the Respondent and cannot be imposed by the Court, as per the Appellant’s proposal, through the present proceedings.
34. The first issue is therefore determined in favour of the Respondent.
35. With respect to the second issue, which is whether the Appellant has met the conditions for the grant of a stay of execution pending appeal, the Court notes that the Appellant filed the application for stay of execution promptly, after judgement was entered in the Kisumu Small Claims Case No. E261 of 2024 on 8th November, 2024. There is no evidence of delay on the part of the Appellant, and the application was therefore made timeously and in good faith.
36. The legal test for granting a stay of execution pending appeal is well-established under Order 42 Rule 6(1) of the Civil Procedure Rules. The applicant must demonstrate: (a) that the appeal is arguable with a real prospect of success, (b) that execution of the decree would cause substantial or irreparable loss, and (c) that the application is made bona fide and without abuse of court process. These principles have been affirmed in Stanbic Bank Kenya Ltd v Mwarania & 2 Others [2014] eKLR.
37. On the question of arguable grounds of appeal, the Appellant has demonstrated that the appeal raises triable issues, as the claim in the trial court involved tortious liability following a motor vehicle accident. The Appellant’s memorandum of appeal and supporting affidavits indicate a substantive dispute on liability, which the Court finds sufficient to satisfy the arguable appeal requirement.
38. Regarding the risk of substantial loss, the Court notes that the Respondent has not filed an affidavit demonstrating that he is a person of means capable of repaying the decretal sum in the event the appeal succeeds. The replying affidavit was sworn by the Respondent’s Counsel, who cannot testify to the Respondent’s personal financial capacity. In these circumstances, the Appellant stands to suffer substantial and irreparable loss if execution were to proceed.
39. The Court further observes that the Appellant has stated in his affidavits that he is ready and willing to comply with any conditions that the Court may impose, including the provision of security for the due performance of the decree. The Court accepts this undertaking and finds that it satisfies the requirement for adequate security to protect the Respondent’s interest.
40. In the circumstances, the Court finds that the conditions for granting a stay of execution pending appeal have been met. There is no evidence of undue delay, the appeal is arguable, the Appellant would suffer substantial loss if execution proceeds and the Respondent’s interests can be adequately protected through conditions on security.
41. Accordingly, it is ordered that the execution of the judgement in Kisumu Small Claims Case No. E261 of 2024 be stayed pending the hearing and determination of the appeal preferred by the Appellant. As a condition of this stay, the Appellant is directed to deposit the decretal amount of Ksh.74,635/- in a joint interest-earning account in the names of the Advocates for both parties, within 30 days from the date of this ruling.
42. Costs of the application, upon compliance with the order of furnishing security, shall abide the outcome of the appeal.
43. In the event that the condition of furnishing security is not met, the application dated 18th November, 2024 will be deemed as having been dismissed with costs, effective the date of this ruling.
44. This appeal will be mentioned on 15th July, 2026 for further directions. The parties to be served with a mention notice.
DELIVERED (virtually), DATED & SIGNED this 21st day of April, 2026.
JOE M. OMIDO.
JUDGE
FOR APPELLANT: No appearance.
FOR RESPONDENT: No appearance.
COURT ASSISTANTS: Mr. Juma.
a. [Spent].
b. [Spent].
c. THAT there be a stay of execution of the judgment/decree pending the hearing and determination of the appeal preferred therefrom against the court (sic) dated 8th November, 2024 in the small claim court at Kisumu.
d. THAT the costs of this application be provided for.
2. The grounds upon which the application is premised are as follows:
a. THAT this Honourable Court delivered its judgment in Kisumu Small Claims Case No. E261 of 2024 on 8th November, 2024 condemning the Appellant to pay the Respondent damages of Ksh.149,270/-.
b. THAT the Appellant, dissatisfied with said judgment, preferred an appeal against the judgment in Kisumu Small Claims Case No. E261 of 2024.
c. THAT Appellant has an arguable appeal with high chances of success.
d. THAT if execution of the said judgment/decree is not stayed, the aforesaid appeal will be rendered nugatory and would thereby occasion substantial loss to the Appellant as the Respondent may not be in a financial position to pay back any funds paid out to him should the appeal be successful.
e. THAT the Respondent is at liberty and may proceed to execute the decree subject of the preferred appeal at any time.
f. THAT in the premises, it is only fair and just that there be a stay of execution of the judgment/decree subject herein pending the inter-parties hearing and determination of the instant application and/or the hearing and determination of the preferred appeal as the case would be.
g. THAT the Appellant is ready and willing to adhere to any conditions that the Honourable Court will set in order to be granted the stay of execution of the judgment/decree of the court.
h. THAT the Appellant has moved the court timeously without undue delay.
i. THAT in the premises, it is only fair and just that the application be allowed as prayed.
3. The application is supported by the supporting and further supporting affidavits sworn by the Appellant on 18th November, 2024 and on 17th June, 2025, respectively.
4. The Appellant states in his affidavits that judgment in Kisumu Small Claims Case No. E261 of 2024 was delivered on 8th November, 2024, condemning him to pay half of the damages amounting to Ksh.74,635/-, which decision he is dissatisfied with and has since appealed against as evidenced by the annexed memorandum of appeal. He has also annexed to his further supporting affidavit the proceedings and judgment of the lower court.
5. The Appellant states that the said appeal raises arguable and triable issues with high chances of success, and is therefore not frivolous.
6. The Appellant contends that there exists a real and imminent risk of execution of the decree by the Respondent, which would render the pending appeal nugatory and reduce it to a mere academic exercise.
7. The Appellant asserts that unless this Honourable Court grants an order of stay of execution, he stands to suffer substantial loss, as the decretal sum may not be recoverable from the Respondent in the event the appeal succeeds.
8. The Appellant avers that this application has been brought without undue delay and in utmost good faith, solely in the interest of justice.
9. The Appellant maintains that the Respondent will not suffer any prejudice if the orders sought are granted, and that any inconvenience can be adequately compensated by way of costs.
10. The Appellant further expresses willingness to abide by such reasonable conditions as this Court may impose, including the provision of security for the due performance of the decree.
11. The Appellant therefore prays that this Court be pleased to grant an order of stay of execution pending the hearing and determination of the appeal, urging that the application is meritorious and in the interest of justice.
12. The application is opposed and to that end the Respondent filed a replying affidavit sworn on 22nd August, 2025 by his Counsel Ms. Margaret Ongaro Arianda.
13. The Respondent’s Counsel states that judgment was entered in favour of the Respondent in Kisumu Small Claims Case No. E261 of 2024 on 8th November, 2024 for a sum of Ksh.74,635/- together with costs and interest, as evidenced by the annexed judgment marked MOA-1.
14. Counsel contends that the Appellant has not demonstrated that the intended appeal is arguable or has any prospects of success, nor has he satisfied the requirements for a stay of execution under Order 42 Rule 6 of the Civil Procedure Rules.
15. It is asserted by Counsel that the Appellant has failed to show how he will suffer substantial loss, noting that mere assertions without supporting evidence are insufficient.
16. Further, Counsel states that the Appellant has not shown how the appeal would be rendered nugatory if the stay is not granted, emphasizing that bare statements are inadequate.
17. The Respondent maintains that no sufficient cause has been shown to justify the grant of the orders sought.
18. Counsel contends that the application is an afterthought, filed solely to delay execution and prevent the Respondent, as a successful litigant, from enjoying the fruits of his judgment.
19. It is further contended in the replying affidavit that the application lacks merit, is frivolous and vexatious and constitutes an abuse of the court process, and therefore ought to be dismissed with costs.
20. The Respondent proposes that if the Court is inclined to grant a stay of execution, it should be conditional upon payment of at least three-quarters of the decretal sum to the Respondent, with the balance deposited into a joint interest-earning account in the names of both advocates on record for the parties.
21. Finally, Counsel asserts that the Respondent is a person of means and is capable of refunding the decretal amount in the event that the appeal succeeds.
22. The application was canvassed by way of brief oral arguments and/or submissions.
23. The Appellant contends that the claim before the trial court arose from tortious liability following a road traffic accident involving a motor vehicle insured by Monarch Insurance Company Limited, and that, under the Insurance (Motor Vehicles Third Party Risks) Act, the insurer is obliged to satisfy the decretal amount.
24. The Respondent argues that the claim against him is acrimonious and malicious, asserting that the Appellant should have pursued the insurer, as valid cover was in place at the time of the accident.
25. On his part, the Respondent submits that the court is called upon to determine two issues: first, whether the Appellant has satisfied the conditions precedent for the grant of a stay of execution pending appeal; and second, whether the Appellant should be required to deposit security for the due performance of the decree, and if so, the appropriate nature of such security.
26. The Respondent contends that the Appellant has not met the necessary conditions for a stay of execution order. However, he urges that should the Court be inclined to grant the Appellant’s motion, such an order should be made conditional upon payment of at least three-quarters of the decretal sum to the Respondent, with the balance deposited into a joint interest-earning account in the names of both parties’ advocates.
27. The Respondent further submits that Monarch Insurance Company Limited is not a party to these proceedings, and since liability in the lower court was specifically imposed on the Appellant, the Respondent is entitled to pursue the Appellant for the decretal amount awarded.
28. Based on the facts, affidavits, and submissions, the three issues that emerge for determination are as follows:
i. Whether Monarch Insurance Company Limited, as the insurer of the motor vehicle involved, is liable to satisfy the decretal amount awarded by the trial court.
ii. Whether the Appellant has met the conditions for the grant of a stay of execution pending appeal, including showing arguable grounds of appeal, risk of substantial loss if execution proceeds, absence of undue prejudice to the Respondent, and that the application was made in good faith without abuse of court process.
iii. Who should bear the costs of the application?
29. I will proceed to address and determine the issues.
30. With regard to the first issue, which is whether Monarch Insurance Company Limited, as the insurer of the motor vehicle involved, is liable to satisfy the decretal amount awarded by the trial court, it must, at the outset be emphasized that Monarch Insurance Company Limited is not a party to these proceedings, and no relief directly against Monarch was sought in the Appellant’s application or supporting affidavits.
31. The sole claim raised against Monarch emerged for the first time in the Appellant’s oral submissions before the Court, which is not a proper procedural avenue to introduce new issues that have not been pleaded or supported by evidence in the affidavits or motion papers. Issues of law and fact must ordinarily arise from pleadings or affidavits, not submissions, so that the opposite party may have an opportunity to respond fully on affidavit.
32. Be that as it may, it is common ground in the record that judgement in the lower court was entered against the Appellant in personam and not against Monarch Insurance Company Limited. A judgement in personam binds only the parties before the court. A person or other entity that is not a party in the proceedings, such as Monarch, cannot be compelled by that judgement to pay the decretal sum in the same proceedings.
33. The applicable law is that the Respondent is within his rights to pursue the Appellant personally for the amount adjudged or, if the Respondent chooses, to file a separate declaratory action against the insurer seeking to enforce any rights available under statute or contract. That choice, however, lies exclusively with the Respondent and cannot be imposed by the Court, as per the Appellant’s proposal, through the present proceedings.
34. The first issue is therefore determined in favour of the Respondent.
35. With respect to the second issue, which is whether the Appellant has met the conditions for the grant of a stay of execution pending appeal, the Court notes that the Appellant filed the application for stay of execution promptly, after judgement was entered in the Kisumu Small Claims Case No. E261 of 2024 on 8th November, 2024. There is no evidence of delay on the part of the Appellant, and the application was therefore made timeously and in good faith.
36. The legal test for granting a stay of execution pending appeal is well-established under Order 42 Rule 6(1) of the Civil Procedure Rules. The applicant must demonstrate: (a) that the appeal is arguable with a real prospect of success, (b) that execution of the decree would cause substantial or irreparable loss, and (c) that the application is made bona fide and without abuse of court process. These principles have been affirmed in Stanbic Bank Kenya Ltd v Mwarania & 2 Others [2014] eKLR.
37. On the question of arguable grounds of appeal, the Appellant has demonstrated that the appeal raises triable issues, as the claim in the trial court involved tortious liability following a motor vehicle accident. The Appellant’s memorandum of appeal and supporting affidavits indicate a substantive dispute on liability, which the Court finds sufficient to satisfy the arguable appeal requirement.
38. Regarding the risk of substantial loss, the Court notes that the Respondent has not filed an affidavit demonstrating that he is a person of means capable of repaying the decretal sum in the event the appeal succeeds. The replying affidavit was sworn by the Respondent’s Counsel, who cannot testify to the Respondent’s personal financial capacity. In these circumstances, the Appellant stands to suffer substantial and irreparable loss if execution were to proceed.
39. The Court further observes that the Appellant has stated in his affidavits that he is ready and willing to comply with any conditions that the Court may impose, including the provision of security for the due performance of the decree. The Court accepts this undertaking and finds that it satisfies the requirement for adequate security to protect the Respondent’s interest.
40. In the circumstances, the Court finds that the conditions for granting a stay of execution pending appeal have been met. There is no evidence of undue delay, the appeal is arguable, the Appellant would suffer substantial loss if execution proceeds and the Respondent’s interests can be adequately protected through conditions on security.
41. Accordingly, it is ordered that the execution of the judgement in Kisumu Small Claims Case No. E261 of 2024 be stayed pending the hearing and determination of the appeal preferred by the Appellant. As a condition of this stay, the Appellant is directed to deposit the decretal amount of Ksh.74,635/- in a joint interest-earning account in the names of the Advocates for both parties, within 30 days from the date of this ruling.
42. Costs of the application, upon compliance with the order of furnishing security, shall abide the outcome of the appeal.
43. In the event that the condition of furnishing security is not met, the application dated 18th November, 2024 will be deemed as having been dismissed with costs, effective the date of this ruling.
44. This appeal will be mentioned on 15th July, 2026 for further directions. The parties to be served with a mention notice.
DELIVERED (virtually), DATED & SIGNED this 21st day of April, 2026.
JOE M. OMIDO.
JUDGE
FOR APPELLANT: No appearance.
FOR RESPONDENT: No appearance.
COURT ASSISTANTS: Mr. Juma.