A. Introduction
1. By a Notice of Motion dated 21 st October, 2025, the appellant has moved this court for orders of stay of execution of the Judgment delivered on 2 nd July, 2025 pending the hearing and determination of the appeal.
2. The application is propped by the grounds on its face and the affidavit sworn by Beatrice Aoko, the appellant’s director dated 27 th October, 2025. She deposed that the appellant is in dire financial constraints and is unable to settle the decretal amount at once. Further, that since the respondent is primarily a foreign company, in the instance that it closes its operations in Kenya, the appellant may not effect the judgment herein should it be successful on appeal
3. The Respondent vide a Replying Affidavit sworn by one Caroline Aloo, its administrator, on 17 th November, 2025 opposed the application on grounds that the appellant has not satisfied the threshold to warrant the orders sought. That, the assertion that the respondent is a foreign company which would impede any execution herein is mere hearsay and has no basis.
B. Analysis and Determination
4. The sole issue for determination is whether or not the appellant has satisfied the threshold to warrant a stay of execution pending the hearing and determination of the appeal.
5. The relief of stay of execution pending appeal is governed by Order 42 Rule 6 of the Civil Procedure Rules . The relief is discretionary although, as it has been said often, the discretion must be exercised judicially, that is to say, judiciously and upon defined principles of law; not capriciously or whimsically. Therefore, stay of execution should only be granted where sufficient cause has been shown by the Applicant. And in determining whether sufficient cause has been shown, the court should be guided by the three prerequisites provided under Order 42 Rule 6 of the Civil Procedure Rules , that:
a) The application is brought without undue delay;
b) The court is satisfied that substantial loss may result to the Applicant unless stay of execution is ordered; and
c) Such security as the court orders for the due performance of such decree or order as may ultimately be binding on him has been given by the Applicant.
6. On the element of delay, the trial court’s judgment was delivered on 2 nd July, 2025 and the present application was filed on 27 th October, 2025. In the Court’s view, this delay is not unreasonable or inordinate.
7. As to substantial loss, the appellant has majorly leaned on a misguided argument that it faces dire financial constraints and it is unable to settle the decretal amount at once.
8. In the case of Joseph Gachie t/a Joska Metal Works vs Simon Ndeti Muema [2012] eKLR Odunga J stated as follows:-
“It is not sufficient merely to state that the decretal amount is a lot of money and the applicant would suffer if the money is paid. In an application of this nature, the applicant should show the damages it will suffer if the order for stay is not granted since by granting stay would mean that status quo should remain as it were before judgement and that would be denying a successful litigant of the fruits of judgment which should not be done if the applicant has not given to the court sufficient cause to enable it exercise its discretion in granting the order of stay.”
9. In Tropical Commodities Suppliers Ltd & others vs. International Credit Bank Ltd (in liquidation) as cited with approval in Antoine Ndiaye v African Virtual University [2015] KEHC 6783 (KLR) Ogola J stated as follows;
“…Substantial loss does not represent any particular mathematical formula. Rather, it is a qualitative concept. it refers to any loss, great or small, that is of real worth or value as distinguished from a loss without value or a loss that is merely nominal…”
10. On the basis of the above, the Applicant has not established that substantial loss will occur unless stay of execution is made. The Applicant seems to rely more on its inability to settle the decree in lumpsum rather than demonstrate the loss which will be occasioned by satisfaction of the appeal in the event the appeal succeeds and the respondent is unable to satisfy the same. This notwithstanding, the applicant has further contended that the respondent is primarily a foreign company, but the same remains unsubstantiated.
11. In my view, the onus of proving substantial loss and in effect that the Respondent cannot repay the decretal sum if the appeal is successful lies with the Applicant, and follows after the long age legal adage that he who alleges must proof. Real and cogent evidence must be placed before the court to show that the Respondent is not able to refund the decretal sum should the appeal succeed. It is not, therefore, enough for a party to just allege as is the case here that the Respondentis primarily a foreign without any corresponding proof of its inability to refund the decretal sum should the appeal succeed.
12. Having thus said, in balancing the rights and interests of both parties herein the case of Absalom Dova vs. Tarbo Transporters [2013] eKLR is informative to the end that:
“The discretionary relief of stay of execution pending appeal is designed on the basis that no one would be worse off by virtue of an order of the court; as such order does not introduce any disadvantage, but administers the justice that the case deserves. This is in recognition that both parties have rights; the Appellant to his appeal which includes the prospects that the appeal will not be rendered nugatory; and the decree holder to the decree which includes full benefits under the decree. The court in balancing the two competing rights focuses on their reconciliation which is not a question of discrimination”
13. In agreement with above position, it is not in doubt that the provision of security is a mandatory requirement under Order 42 Rule 6(2)(b) as was articulated in Arun C. Sharma v Ashana Raikundalia t/a Raikundalia & Co. Advocates [2014] eKLR . The requirement is not merely procedural but goes to the heart of judicial discretion under Order 42 Rule 6(2)(b) that justiciably balances the two competing rights herein.
14. The purpose of an application for stay of execution pending an appeal is to preserve the subject matter in dispute so that the rights of the appellant who is exercising the undoubted right of appeal are safeguarded and the appeal if successful, is not rendered nugatory. However, in doing so, the court should weigh this right against the success of a litigant who should not be deprived of the fruits of his/her judgment. The court is also called upon to ensure that no party suffers prejudice that cannot be compensated by an award of costs.
15. In balancing the interests of the appellant who pursues an opportunity to be heard on the merits of his case and that of the respondent decree holder who seeks to benefit from the fruits of his judgment and take care to protect the appellant from irreparable loss in the event of a successful appeal, the court makes an order that the full decretal sum be deposited in an interest earning account to be held by both advocates for the parties to this appeal as security for performance of the decree which may be ultimately binding on the Appellant.
C. Disposition
16. Accordingly, I find that the application dated 21 st October, 2025 is meritorious to the extent held hereinabove and the same is allowed as follows:
a. Stay of execution of the judgment of the trial court of of 2 nd July, 2025 is granted subject to the payment of the full decretal sum in an interest earning account to be held by both advocates for the parties to this appeal within 14 days hereafter.
b. In default, order for stay of execution to lapse and execution to issue.
Orders accordingly.
DATED, SIGNED and DELIVERED at MOMBASA Virtually this……17Tth..day of….December..………2025.
W. K. MICHENI
JUDGE
IN THE PRESENCE OF;
FOR THE APPLICANT(S)............................
FOR THE RESPONDENT(S).............................
COURT ASSISTANT...................................
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1. By a Notice of Motion dated 21 st October, 2025, the appellant has moved this court for orders of stay of execution of the Judgment delivered on 2 nd July, 2025 pending the hearing and determination of the appeal.
2. The application is propped by the grounds on its face and the affidavit sworn by Beatrice Aoko, the appellant’s director dated 27 th October, 2025. She deposed that the appellant is in dire financial constraints and is unable to settle the decretal amount at once. Further, that since the respondent is primarily a foreign company, in the instance that it closes its operations in Kenya, the appellant may not effect the judgment herein should it be successful on appeal
3. The Respondent vide a Replying Affidavit sworn by one Caroline Aloo, its administrator, on 17 th November, 2025 opposed the application on grounds that the appellant has not satisfied the threshold to warrant the orders sought. That, the assertion that the respondent is a foreign company which would impede any execution herein is mere hearsay and has no basis.
B. Analysis and Determination
4. The sole issue for determination is whether or not the appellant has satisfied the threshold to warrant a stay of execution pending the hearing and determination of the appeal.
5. The relief of stay of execution pending appeal is governed by Order 42 Rule 6 of the Civil Procedure Rules . The relief is discretionary although, as it has been said often, the discretion must be exercised judicially, that is to say, judiciously and upon defined principles of law; not capriciously or whimsically. Therefore, stay of execution should only be granted where sufficient cause has been shown by the Applicant. And in determining whether sufficient cause has been shown, the court should be guided by the three prerequisites provided under Order 42 Rule 6 of the Civil Procedure Rules , that:
a) The application is brought without undue delay;
b) The court is satisfied that substantial loss may result to the Applicant unless stay of execution is ordered; and
c) Such security as the court orders for the due performance of such decree or order as may ultimately be binding on him has been given by the Applicant.
6. On the element of delay, the trial court’s judgment was delivered on 2 nd July, 2025 and the present application was filed on 27 th October, 2025. In the Court’s view, this delay is not unreasonable or inordinate.
7. As to substantial loss, the appellant has majorly leaned on a misguided argument that it faces dire financial constraints and it is unable to settle the decretal amount at once.
8. In the case of Joseph Gachie t/a Joska Metal Works vs Simon Ndeti Muema [2012] eKLR Odunga J stated as follows:-
“It is not sufficient merely to state that the decretal amount is a lot of money and the applicant would suffer if the money is paid. In an application of this nature, the applicant should show the damages it will suffer if the order for stay is not granted since by granting stay would mean that status quo should remain as it were before judgement and that would be denying a successful litigant of the fruits of judgment which should not be done if the applicant has not given to the court sufficient cause to enable it exercise its discretion in granting the order of stay.”
9. In Tropical Commodities Suppliers Ltd & others vs. International Credit Bank Ltd (in liquidation) as cited with approval in Antoine Ndiaye v African Virtual University [2015] KEHC 6783 (KLR) Ogola J stated as follows;
“…Substantial loss does not represent any particular mathematical formula. Rather, it is a qualitative concept. it refers to any loss, great or small, that is of real worth or value as distinguished from a loss without value or a loss that is merely nominal…”
10. On the basis of the above, the Applicant has not established that substantial loss will occur unless stay of execution is made. The Applicant seems to rely more on its inability to settle the decree in lumpsum rather than demonstrate the loss which will be occasioned by satisfaction of the appeal in the event the appeal succeeds and the respondent is unable to satisfy the same. This notwithstanding, the applicant has further contended that the respondent is primarily a foreign company, but the same remains unsubstantiated.
11. In my view, the onus of proving substantial loss and in effect that the Respondent cannot repay the decretal sum if the appeal is successful lies with the Applicant, and follows after the long age legal adage that he who alleges must proof. Real and cogent evidence must be placed before the court to show that the Respondent is not able to refund the decretal sum should the appeal succeed. It is not, therefore, enough for a party to just allege as is the case here that the Respondentis primarily a foreign without any corresponding proof of its inability to refund the decretal sum should the appeal succeed.
12. Having thus said, in balancing the rights and interests of both parties herein the case of Absalom Dova vs. Tarbo Transporters [2013] eKLR is informative to the end that:
“The discretionary relief of stay of execution pending appeal is designed on the basis that no one would be worse off by virtue of an order of the court; as such order does not introduce any disadvantage, but administers the justice that the case deserves. This is in recognition that both parties have rights; the Appellant to his appeal which includes the prospects that the appeal will not be rendered nugatory; and the decree holder to the decree which includes full benefits under the decree. The court in balancing the two competing rights focuses on their reconciliation which is not a question of discrimination”
13. In agreement with above position, it is not in doubt that the provision of security is a mandatory requirement under Order 42 Rule 6(2)(b) as was articulated in Arun C. Sharma v Ashana Raikundalia t/a Raikundalia & Co. Advocates [2014] eKLR . The requirement is not merely procedural but goes to the heart of judicial discretion under Order 42 Rule 6(2)(b) that justiciably balances the two competing rights herein.
14. The purpose of an application for stay of execution pending an appeal is to preserve the subject matter in dispute so that the rights of the appellant who is exercising the undoubted right of appeal are safeguarded and the appeal if successful, is not rendered nugatory. However, in doing so, the court should weigh this right against the success of a litigant who should not be deprived of the fruits of his/her judgment. The court is also called upon to ensure that no party suffers prejudice that cannot be compensated by an award of costs.
15. In balancing the interests of the appellant who pursues an opportunity to be heard on the merits of his case and that of the respondent decree holder who seeks to benefit from the fruits of his judgment and take care to protect the appellant from irreparable loss in the event of a successful appeal, the court makes an order that the full decretal sum be deposited in an interest earning account to be held by both advocates for the parties to this appeal as security for performance of the decree which may be ultimately binding on the Appellant.
C. Disposition
16. Accordingly, I find that the application dated 21 st October, 2025 is meritorious to the extent held hereinabove and the same is allowed as follows:
a. Stay of execution of the judgment of the trial court of of 2 nd July, 2025 is granted subject to the payment of the full decretal sum in an interest earning account to be held by both advocates for the parties to this appeal within 14 days hereafter.
b. In default, order for stay of execution to lapse and execution to issue.
Orders accordingly.
DATED, SIGNED and DELIVERED at MOMBASA Virtually this……17Tth..day of….December..………2025.
W. K. MICHENI
JUDGE
IN THE PRESENCE OF;
FOR THE APPLICANT(S)............................
FOR THE RESPONDENT(S).............................
COURT ASSISTANT...................................
1 of 2