The appellant filed an application dated 11 August 2035 seeking a stay of execution of the judgment of the trial court in Mombasa CMELRC No. E267 of 2023 delivered on 4 August 2025.
The application is supported by the Affidavit of Saeed Sheikh Abdurrahman, the director, who avers that the appellant is dissatisfied with the trial court''s judgment and has filed this appeal. The trial court delivered judgment on 4 August 2025 via email and did not allow a stay of execution. Unless such a stay of execution is allowed, the appeal herein will be rendered nugatory.
The appeal and instant application have been filed without delay, there are arguable issues for the appeal, and it is only fair and just that the appellant is allowed a chance to be heard.
In his Affidavit, Abdurrahman avers that the appellant is willing to provide security for the due performance of the decree pending the hearing and determination of the appeal.
In reply, the respondent filed the Replying Affidavit of Baraka Ngala, advocate, who avers that the application by the appellant is a waste of judicial time. The Notice of Appointment of new advocates is fatally defective and devoid of the mandatory provisions of Order 9 Rule 9 of the Civil Procedure Rules. No leave or court order has been issued. The previous firm representing the appellant in the lower court has not granted consent to file the matter herein.
There is no prima facie case to warrant the orders sought.
Determination
The respondent has raised the issue that the appellant, through the current advocates, violates Order 9 Rule 9 of the Civil Procedure Rules. That there is no consent or leave obtained to file the instant appeal, and hence the appeal is invalid.
The Memorandum of Appeal is filed by the firm of Yunis Ali & Company Advocates for the appellant. This is a new matter before this court. There has been no previous attendance or record of any other advocates attending on behalf of the appellant.
The requirements of Order 9, Rule 9 can only be invoked where the appellant seeks to change his advocates upon the judgment in this appeal.
The objections under Order 9 Rule 9 of the Civil Procedure Rules are without merit.
On whether the stay of execution of the trial judgment delivered on 4 August 2025 should be allowed. Order 42 rule 6 of the Civil Procedure Rules requires that the applicant demonstrate the loss to be suffered if the stay sought is not granted, to file the application without delay and to offer security. See Mbau v Attorney General & 2 others; Manyatta Simba Land Limited & 4 others (Interested Parties) [2025] KEELC 6897 (KLR) and Muriu v Gathia & 2 others [2025] KEELC 6695 (KLR), where the court held that the motions of Order 9 rule 9 take effect post judgment in a given matter.
This is a new and fresh appeal; there is no judgment. Filing a Notice of Change of Advocate is not necessary.
On the substantive question of whether to grant a stay of execution, Order 42, Rule 6 requires the applicant to demonstrate the substantive loss to be suffered if the order is not issued.
In the case of Pasha Enterprises Limited v Kenya Alliance Insurance Company Limited; Karama & Yussuf (Suing as the Legal Representative of the Estate of Abdul Wahab Hassan - Deceased) & 3 others (Interested Parties) [2025] KECA 1600 (KLR), the court emphasized that an applicant seeking stay of execution of a valid judgment has to demonstrate the loss to be suffered if execution were to proceed pending the hearing of the appeal.
In the case of University of Nairobi v Mangana [2025] KEELRC 2768 (KLR), the court held that under Order 42 rule 6, the conditions for stay of execution should be concerned with the substantial loss to be suffered by the applicant if the orders staying the impugned orders are not stayed. The question of what constitutes substantial loss is defined in the case of James Wangalwa & Another vs Agnes Naliaka Cheseto (2012) eKLR. That no substantial loss which was shown to arise once execution proceeds as it should be.
In this case, the appellant’s case is that judgment was delivered and posted without having a chance to seek for stay of execution. There is an arguable appeal which has since been filed.
It is only fair and just that the court should hear the appeal and make a determination. Pending the hearing of the appeal, it is only fair that the trial court judgment be stayed.
The appeal having been filed immediately and the Record of Appeal served, there is no delay, and the court will set down the matter for hearing without delay on the part of the appellant.
On the security deposit, the appellant has offered to deposit such security as the court may deem necessary.
The judgment sum is Ksh. 1,265,399.50. To secure the respondent’s right and the appellant’s right to this appeal, 50% of the judgment sum shall be deposited in court within 14 days, closing on 10 November 2025. In default, execution to proceed.
On the Record of Appeal, hearing directions shall be issued.
Costs shall abide by the outcome of the appeal.
Orders accordingly.
Delivered in open court at Mombasa, this 23rd day of October 2025.
M. MBARŨ
JUDGE
In the presence of:
Court Assistant: Japhet
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