RULING
1. The applicant herein Stephanie Nduta Soprani has filed an application by way of a notice of motion dated 13th November 2025 and brought under Order 42 Rule 6 of the Civil Procedure Rules (CPR), seeking orders that there be a stay of execution of the judgment delivered on 17th October 2025 and decree issued on 3rd November 2025 by the Senior Principal Magistrate’s Court at Kwale in Civil Case No. E0181 of 2023 pending the hearing and determination of the intended appeal and costs of the application be provided for.
2. The conditions for grant of an order of stay of execution pending appeal are well laid out under statute and case law.
3. Stay of execution pending appeal to the High Court is provided for under Order 42 Rule 6 of the Civil Procedure Rules 2010 as follows;
“(1) No appeal or second appeal shall operate as a stay of execution or proceeding under a decree or order appealed from except in so far as the court appealed from may order but, the court appealed from may for sufficient cause order stay of execution of such decree or order, and whether the application for such stay shall have been granted or refused by the court appealed from, the court to which such appeal is preferred shall be at liberty, on application being made, to consider such application and to make such order thereon as may to it seem just, and any person aggrieved by an order of stay made by the court from whose decision the appeal is preferred may apply to the appellate court to have such order set aside.
(2) No order for stay of execution shall be made under subrule (1) unless –
(a) the court is satisfied that substantial loss may result to the applicant unless the order is made and that the application has been made without unreasonable delay; and
(b) 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.”
4. From the foregoing provision of the law, the three conditions to be fulfilled by a party applying for an order of stay pending appeal are;
a. that substantial loss may result to the applicant unless the order is granted.
b. the application has been made without unreasonable delay.
c. security as the court orders for the due performance of the decree.
(See the case of Halai & another v Thornton & Turpin (1963) Ltd [1990] KECA 65 (KLR)).
5. These principles are expounded in the case of Butt v Rent Restriction Tribunal [1979] KECA 22 (KLR) where the Court of Appeal stated what ought to be considered in determining whether to grant or refuse stay of execution pending appeal. The court said that: -
a. The power of the court to grant or refuse an application for a stay of execution is discretionary; and the discretion should be exercised in such a way as not to prevent an appeal.
b. Secondly, the general principle in granting or refusing a stay is, if there is no other overwhelming hindrance, a stay must be granted so that an appeal may not be rendered nugatory should the appeal court reverse the judge’s discretion.
c. Thirdly, a judge should not refuse a stay if there are good grounds for granting it merely because, in his opinion, a better remedy may become available to the applicant at the end of the proceedings.
d. Finally, the Court in exercising its discretion whether to grant or refuse an application for stay will consider the special circumstances and its unique requirements. The court in exercising its powers under Order XLI Rule 4(2) (b) of the Civil Procedure Rules, can order security upon application by either party or on its own motion. Failure to put security as ordered will cause the order for stay of execution to lapse.
6. It has also been held that the court, in exercising its discretion, should also opt for the lower rather than the higher risk of injustice and finally the court will also consider the overriding objective as stipulated in sections 1A and 1B of the Civil Procedure Act, which the courts are now enjoined to give effect to. (See Machira t/a Machira & Co Advocates v East African Standard [2002] KEHC 1167 (KLR)).
7. The grounds in support of the application as appear on the face thereof and expounded in the affidavit of Stephania Nduta Soprani sworn on 13th November 2025 and further affidavit sworn on 22nd January 2026 are that judgment and decree were delivered in the said case on 17th October 2025 in the sun of KShs 5,000,000/= plus costs and interest. The applicant was dissatisfied with that decision and has appealed to this court through a memorandum of appeal against the judgment. That the trial court delivered the judgment on a gazetted public holiday and the applicant was not able to make an application for stay of execution.
8. Further that the application satisfies the conditions for stay of execution pending appeal
9. The application is opposed through grounds of opposition dated 11th December 2025 and replying affidavit of Paul Athony Bromfield sworn on 15th December 2025.
10. The respondent’s reply is that the application does not meet the threshold for grant of the prayers for stay of execution. Other averments in the grounds of opposition and depositions in the supporting affidavit, do not address the requirements for grant of the orders sought and have been appropriately responded to by the applicant and I will not address them herein.
11. The court directed that the application be disposed of by way of written submissions. When the matter came up for mention on 18th March, 2026, learned counsels informed the court that both parties had complied and filed submissions. However, on checking the Case Tracking System, where all court documents are filed, I have only found submissions for the applicant filed on 16th February 2026. I noted that on 13th March 2026, the respondent refiled his replying affidavit that had been filed earlier 16th December 2026. However, he had not filed submissions and he did not file any other document afterwards.
12. The applicant submits that her application meets the conditions for grant of an order of stay of execution pending appeal being that the intended appeal has merit with high chances of success. That the respondent had showed signs of being eager to commence execution proceedings which would render the intended appeal nugatory. That the applicant is willing to abide by such conditions as this court may deem fit to impose for the due performance of the decree that may ultimately be binding on the applicant and that substantial loss may result to the applicant unless the order of stay is made as the respondent may not be in a position to refund the sum of KShs 5,000,000/= should the applicant succeed in the appeal and finally that the application has been made without unreasonable delay.
13. I have considered the application and the response thereto as well as submissions by learned counsel for the applicant. The issue for determination is whether the application meets the threshold for grant of an order of stay of execution pending appeal.
14. The first condition for grant of an order of stay pending appeal is that the applicant has to show that she stands to suffer substantial loss should the appeal be eventually decided in her favour. Learned counsel for the applicant submits that the applicant is going through a financial strain and cannot raise the decretal sum and for that reason, the damage to be suffered if the order is not granted and the appeal succeeds would be irreparable. Further that the respondent might not be able to refund the decretal sum as he has not shown to be a person of means as he has not disclosed what he does for a living. That in that case, the it is likely to render the appeal nugatory.
15. In the case cited by learned counsel of James Wangalwa & another v Agnes Naliaka Cheseto [2012] KEHC 1094 (KLR) the High Court held that regarding the issue of substantial loss that:
“No doubt, in law, the fact that the process of execution has been put in motion, or is likely to be put in motion, by itself, does not amount to substantial loss. Even when execution has been levied and completed, that is to say, the attached properties have been sold, as is the case here, does not in itself amount to substantial loss under Order 42 Rule 6 of the CPR. This is so because execution is a lawful process.
The applicant must establish other factors which show that the execution will create a state of affairs that will irreparably affect or negate the very essential core of the Applicant as the successful party in the appeal. This is what substantial loss would entail, a question that was aptly discussed in the case of Silverstein v. Chesoni [2002] 1KLR 867, and also in the case of Mukuma v Abuoga .... The last case, referring to the exercise of discretion by the High Court and the Court of Appeal in the granting stay of execution, under Order 42 of the CPR and Rule 5(2) (b) of the Court of Appeal Rules, respectively, emphasized the centrality of substantial loss thus:
“…the issue of substantial loss is the cornerstone of both jurisdictions. Substantial loss is what has to be prevented by preserving the status quo because such loss would render the appeal nugatory.”
16. Further, in the case of Joseph Gachie T/A Joska Metal Works v Simon Ndeti Muema [2012] KEHC 1687 (KLR), Odunga, J. (as he then was) considering the issue of substantial loss stated that:
“It is not sufficient to merely state that the decretal sum is a lot of money and the applicant would suffer loss if the money is paid. In an application of this nature, the applicant should show the damages it would suffer if the order for stay is not granted since by granting stay would mean that the status quo should remain as it were before the judgement and that would be denying a successful litigant of the fruits of his judgement which should not be done if the applicant has not given to the court sufficient cause to enable it to exercise its discretion in granting the order of stay. See Kenya Shell Ltd vs. Benjamin Karuga Kibiru and Another [1986] KLR 410; 1 KAR 1018; [1986-1989] EA 266.
Where the allegation is that the respondent will not be able to refund the decretal sum the burden is upon the applicant to prove that the Respondent will not be able to refund to the defendants any sums paid in satisfaction of the decree. See Caneland Ltd. & 2 Others vs. Delphis Bank Ltd. Civil Application No. Nai. 344 of 1999.
The law, however appreciates that it may not be possible for the applicant to know the respondent’s financial means. The law is therefore that all an applicant can reasonably be expected to do, is to swear, upon reasonable grounds, that the Respondent will not be in a position to refund the decretal sum if it is paid over to him and the pending appeal was to succeed but is not expected to go into the bank accounts, if any, operated by the Respondent to see if there is any money there. The property a man has is a matter so peculiarly within his knowledge that an applicant may not reasonably be expected to know them. In those circumstances, the legal burden still remains on the applicant, but the evidential burden would then have shifted to the Respondent to show that he would be in a position to refund the decretal sum.”
17. I am well guided by these decisions with which I agree. I am aware that the respondent has a decree in his favour and he is entitled to enjoy the fruits thereof. But the applicant also has her right to appeal. The court has to balance the interests of the applicant who is seeking to preserve the status quo pending the hearing of the appeal so that her appeal is not rendered nugatory and the interests of the respondent who is seeking to enjoy the fruits of his judgment. The dispute between the parties is about an alleged breach of contract. The respondent was awarded general damages of KShs 5,000,000/= for breach of contract for a project that was worth KShs 46,326,800/= and of which the trial court found that 90% had been paid at the onset of the project and the balance was to be paid one month prior to completion.
18. Balancing the two competing interests in this case, I find that the loss that would be suffered by the applicant would be substantial if the stay order is not granted.
19. However, this issue is evened out on the next requirement to be satisfied for stay of execution to issue that is, “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.”
20. The applicant has offered to provide security in the form of a bank guarantee. She deposes that she is financially challenged at the moment and therefore not able to deposit the amount in court. The form of security to be provided is at the discretion of the court. In that case, what is important is the satisfaction of that condition. The court will in its discretion set and require an appropriate security from the applicant, failure to which her application fails.
21. The final requirement is for the applicant to satisfy the court that the application has been made without unreasonable delay. The judgment, the subject of the appeal was delivered on 17th October 2025 and the memorandum of appeal was filed on 3rd November 2025 and an amended memorandum of appeal filed on 22nd January 2026. The initial memorandum of appeal was filed within the statutory period of thirty days provided for filing an appeal to the High Court under Order 42 Rule 6 of the CPR. The present application was filed on 14th November 2025. I am satisfied, as submitted by learned counsel, that the memorandum of appeal and the application were each filed without unreasonable delay and therefore that condition is satisfied.
22. I find that the application herein has merit and in order not to render the intended appeal nugatory, the application is granted on conditions.
23. Consequently, stay of execution of the judgment and decree in Kwale Magistrate’s Court Civil Case No. E0181 of 2023 is granted pending hearing and determination the appeal filed herein on terms that the applicant shall provide to this court a bank guarantee in the sum of KShs 5,000,000/= within the next 14 days.
24. Failure by the applicant to abide by the condition hereinabove, this application will be deemed to have been dismissed.
25. Upon satisfaction of this condition, the appellant shall file the record of appeal within 30 days after which the matter shall be placed before the Deputy Registrar of this court for directions on compliance. I have seen a document titled supplementary record of appeal filed but not the initial record of appeal. I believe the former was filed in error and the same should be corrected by filing a proper record of appeal.
26. Costs of the application will abide by the appeal.
27. Mention before the DR on 19th June 2026.
28. Orders accordingly.
Delivered, dated and signed at Kwale on the Virtual Platform, Microsoft Teams this 11th day of May 2026.
ANDAYI W. F.
JUDGE
In the presence of:
Omboro h/b for Otunga for the applicant.
N/A for the respondent.
Ummu: Court Assistant.
1. The applicant herein Stephanie Nduta Soprani has filed an application by way of a notice of motion dated 13th November 2025 and brought under Order 42 Rule 6 of the Civil Procedure Rules (CPR), seeking orders that there be a stay of execution of the judgment delivered on 17th October 2025 and decree issued on 3rd November 2025 by the Senior Principal Magistrate’s Court at Kwale in Civil Case No. E0181 of 2023 pending the hearing and determination of the intended appeal and costs of the application be provided for.
2. The conditions for grant of an order of stay of execution pending appeal are well laid out under statute and case law.
3. Stay of execution pending appeal to the High Court is provided for under Order 42 Rule 6 of the Civil Procedure Rules 2010 as follows;
“(1) No appeal or second appeal shall operate as a stay of execution or proceeding under a decree or order appealed from except in so far as the court appealed from may order but, the court appealed from may for sufficient cause order stay of execution of such decree or order, and whether the application for such stay shall have been granted or refused by the court appealed from, the court to which such appeal is preferred shall be at liberty, on application being made, to consider such application and to make such order thereon as may to it seem just, and any person aggrieved by an order of stay made by the court from whose decision the appeal is preferred may apply to the appellate court to have such order set aside.
(2) No order for stay of execution shall be made under subrule (1) unless –
(a) the court is satisfied that substantial loss may result to the applicant unless the order is made and that the application has been made without unreasonable delay; and
(b) 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.”
4. From the foregoing provision of the law, the three conditions to be fulfilled by a party applying for an order of stay pending appeal are;
a. that substantial loss may result to the applicant unless the order is granted.
b. the application has been made without unreasonable delay.
c. security as the court orders for the due performance of the decree.
(See the case of Halai & another v Thornton & Turpin (1963) Ltd [1990] KECA 65 (KLR)).
5. These principles are expounded in the case of Butt v Rent Restriction Tribunal [1979] KECA 22 (KLR) where the Court of Appeal stated what ought to be considered in determining whether to grant or refuse stay of execution pending appeal. The court said that: -
a. The power of the court to grant or refuse an application for a stay of execution is discretionary; and the discretion should be exercised in such a way as not to prevent an appeal.
b. Secondly, the general principle in granting or refusing a stay is, if there is no other overwhelming hindrance, a stay must be granted so that an appeal may not be rendered nugatory should the appeal court reverse the judge’s discretion.
c. Thirdly, a judge should not refuse a stay if there are good grounds for granting it merely because, in his opinion, a better remedy may become available to the applicant at the end of the proceedings.
d. Finally, the Court in exercising its discretion whether to grant or refuse an application for stay will consider the special circumstances and its unique requirements. The court in exercising its powers under Order XLI Rule 4(2) (b) of the Civil Procedure Rules, can order security upon application by either party or on its own motion. Failure to put security as ordered will cause the order for stay of execution to lapse.
6. It has also been held that the court, in exercising its discretion, should also opt for the lower rather than the higher risk of injustice and finally the court will also consider the overriding objective as stipulated in sections 1A and 1B of the Civil Procedure Act, which the courts are now enjoined to give effect to. (See Machira t/a Machira & Co Advocates v East African Standard [2002] KEHC 1167 (KLR)).
7. The grounds in support of the application as appear on the face thereof and expounded in the affidavit of Stephania Nduta Soprani sworn on 13th November 2025 and further affidavit sworn on 22nd January 2026 are that judgment and decree were delivered in the said case on 17th October 2025 in the sun of KShs 5,000,000/= plus costs and interest. The applicant was dissatisfied with that decision and has appealed to this court through a memorandum of appeal against the judgment. That the trial court delivered the judgment on a gazetted public holiday and the applicant was not able to make an application for stay of execution.
8. Further that the application satisfies the conditions for stay of execution pending appeal
9. The application is opposed through grounds of opposition dated 11th December 2025 and replying affidavit of Paul Athony Bromfield sworn on 15th December 2025.
10. The respondent’s reply is that the application does not meet the threshold for grant of the prayers for stay of execution. Other averments in the grounds of opposition and depositions in the supporting affidavit, do not address the requirements for grant of the orders sought and have been appropriately responded to by the applicant and I will not address them herein.
11. The court directed that the application be disposed of by way of written submissions. When the matter came up for mention on 18th March, 2026, learned counsels informed the court that both parties had complied and filed submissions. However, on checking the Case Tracking System, where all court documents are filed, I have only found submissions for the applicant filed on 16th February 2026. I noted that on 13th March 2026, the respondent refiled his replying affidavit that had been filed earlier 16th December 2026. However, he had not filed submissions and he did not file any other document afterwards.
12. The applicant submits that her application meets the conditions for grant of an order of stay of execution pending appeal being that the intended appeal has merit with high chances of success. That the respondent had showed signs of being eager to commence execution proceedings which would render the intended appeal nugatory. That the applicant is willing to abide by such conditions as this court may deem fit to impose for the due performance of the decree that may ultimately be binding on the applicant and that substantial loss may result to the applicant unless the order of stay is made as the respondent may not be in a position to refund the sum of KShs 5,000,000/= should the applicant succeed in the appeal and finally that the application has been made without unreasonable delay.
13. I have considered the application and the response thereto as well as submissions by learned counsel for the applicant. The issue for determination is whether the application meets the threshold for grant of an order of stay of execution pending appeal.
14. The first condition for grant of an order of stay pending appeal is that the applicant has to show that she stands to suffer substantial loss should the appeal be eventually decided in her favour. Learned counsel for the applicant submits that the applicant is going through a financial strain and cannot raise the decretal sum and for that reason, the damage to be suffered if the order is not granted and the appeal succeeds would be irreparable. Further that the respondent might not be able to refund the decretal sum as he has not shown to be a person of means as he has not disclosed what he does for a living. That in that case, the it is likely to render the appeal nugatory.
15. In the case cited by learned counsel of James Wangalwa & another v Agnes Naliaka Cheseto [2012] KEHC 1094 (KLR) the High Court held that regarding the issue of substantial loss that:
“No doubt, in law, the fact that the process of execution has been put in motion, or is likely to be put in motion, by itself, does not amount to substantial loss. Even when execution has been levied and completed, that is to say, the attached properties have been sold, as is the case here, does not in itself amount to substantial loss under Order 42 Rule 6 of the CPR. This is so because execution is a lawful process.
The applicant must establish other factors which show that the execution will create a state of affairs that will irreparably affect or negate the very essential core of the Applicant as the successful party in the appeal. This is what substantial loss would entail, a question that was aptly discussed in the case of Silverstein v. Chesoni [2002] 1KLR 867, and also in the case of Mukuma v Abuoga .... The last case, referring to the exercise of discretion by the High Court and the Court of Appeal in the granting stay of execution, under Order 42 of the CPR and Rule 5(2) (b) of the Court of Appeal Rules, respectively, emphasized the centrality of substantial loss thus:
“…the issue of substantial loss is the cornerstone of both jurisdictions. Substantial loss is what has to be prevented by preserving the status quo because such loss would render the appeal nugatory.”
16. Further, in the case of Joseph Gachie T/A Joska Metal Works v Simon Ndeti Muema [2012] KEHC 1687 (KLR), Odunga, J. (as he then was) considering the issue of substantial loss stated that:
“It is not sufficient to merely state that the decretal sum is a lot of money and the applicant would suffer loss if the money is paid. In an application of this nature, the applicant should show the damages it would suffer if the order for stay is not granted since by granting stay would mean that the status quo should remain as it were before the judgement and that would be denying a successful litigant of the fruits of his judgement which should not be done if the applicant has not given to the court sufficient cause to enable it to exercise its discretion in granting the order of stay. See Kenya Shell Ltd vs. Benjamin Karuga Kibiru and Another [1986] KLR 410; 1 KAR 1018; [1986-1989] EA 266.
Where the allegation is that the respondent will not be able to refund the decretal sum the burden is upon the applicant to prove that the Respondent will not be able to refund to the defendants any sums paid in satisfaction of the decree. See Caneland Ltd. & 2 Others vs. Delphis Bank Ltd. Civil Application No. Nai. 344 of 1999.
The law, however appreciates that it may not be possible for the applicant to know the respondent’s financial means. The law is therefore that all an applicant can reasonably be expected to do, is to swear, upon reasonable grounds, that the Respondent will not be in a position to refund the decretal sum if it is paid over to him and the pending appeal was to succeed but is not expected to go into the bank accounts, if any, operated by the Respondent to see if there is any money there. The property a man has is a matter so peculiarly within his knowledge that an applicant may not reasonably be expected to know them. In those circumstances, the legal burden still remains on the applicant, but the evidential burden would then have shifted to the Respondent to show that he would be in a position to refund the decretal sum.”
17. I am well guided by these decisions with which I agree. I am aware that the respondent has a decree in his favour and he is entitled to enjoy the fruits thereof. But the applicant also has her right to appeal. The court has to balance the interests of the applicant who is seeking to preserve the status quo pending the hearing of the appeal so that her appeal is not rendered nugatory and the interests of the respondent who is seeking to enjoy the fruits of his judgment. The dispute between the parties is about an alleged breach of contract. The respondent was awarded general damages of KShs 5,000,000/= for breach of contract for a project that was worth KShs 46,326,800/= and of which the trial court found that 90% had been paid at the onset of the project and the balance was to be paid one month prior to completion.
18. Balancing the two competing interests in this case, I find that the loss that would be suffered by the applicant would be substantial if the stay order is not granted.
19. However, this issue is evened out on the next requirement to be satisfied for stay of execution to issue that is, “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.”
20. The applicant has offered to provide security in the form of a bank guarantee. She deposes that she is financially challenged at the moment and therefore not able to deposit the amount in court. The form of security to be provided is at the discretion of the court. In that case, what is important is the satisfaction of that condition. The court will in its discretion set and require an appropriate security from the applicant, failure to which her application fails.
21. The final requirement is for the applicant to satisfy the court that the application has been made without unreasonable delay. The judgment, the subject of the appeal was delivered on 17th October 2025 and the memorandum of appeal was filed on 3rd November 2025 and an amended memorandum of appeal filed on 22nd January 2026. The initial memorandum of appeal was filed within the statutory period of thirty days provided for filing an appeal to the High Court under Order 42 Rule 6 of the CPR. The present application was filed on 14th November 2025. I am satisfied, as submitted by learned counsel, that the memorandum of appeal and the application were each filed without unreasonable delay and therefore that condition is satisfied.
22. I find that the application herein has merit and in order not to render the intended appeal nugatory, the application is granted on conditions.
23. Consequently, stay of execution of the judgment and decree in Kwale Magistrate’s Court Civil Case No. E0181 of 2023 is granted pending hearing and determination the appeal filed herein on terms that the applicant shall provide to this court a bank guarantee in the sum of KShs 5,000,000/= within the next 14 days.
24. Failure by the applicant to abide by the condition hereinabove, this application will be deemed to have been dismissed.
25. Upon satisfaction of this condition, the appellant shall file the record of appeal within 30 days after which the matter shall be placed before the Deputy Registrar of this court for directions on compliance. I have seen a document titled supplementary record of appeal filed but not the initial record of appeal. I believe the former was filed in error and the same should be corrected by filing a proper record of appeal.
26. Costs of the application will abide by the appeal.
27. Mention before the DR on 19th June 2026.
28. Orders accordingly.
Delivered, dated and signed at Kwale on the Virtual Platform, Microsoft Teams this 11th day of May 2026.
ANDAYI W. F.
JUDGE
In the presence of:
Omboro h/b for Otunga for the applicant.
N/A for the respondent.
Ummu: Court Assistant.