1. Before the Court is the Notice of Motion dated 7 th May, 2026 brought pursuant to Sections 1A, 1B and 3A of the Civil Procedure Act and Order 42 Rule 6 of the Civil Procedure Rules. The Applicant seeks an order staying execution of the Judgment and Decree of the Chief Magistrate's Court at Molo delivered on 9 th March, 2026 in Molo CMCC No. E463 of 2023, together with all consequential execution proceedings, including the Notice to Show Cause dated 24 th April 2026, pending the hearing and determination of the appeal.
2. The application is supported by the Applicant's Affidavit sworn on 7 th May 2026 and the Further Affidavit sworn on 13 th August 2026. It is opposed by the Respondent through a Replying Affidavit sworn on 28 th May 2026. The parties filed written submissions, which I have considered together with the authorities cited therein.
Background
The applicant’s case
3. As per the trial court’s judgment dated 9 th March 2026, the parties are brothers. The Respondent instituted Molo CMCC No. E463 of 2023 against the Appellant in respect of injuries allegedly sustained on 12 th March 2023. His case was that, during a boundary dispute, the Appellant struck him with a panga, resulting in the traumatic amputation of his left hand at the wrist.
4. Judgment was delivered on 9 th March 2026 in favour of the Respondent. The trial court awarded a total of Kshs. 3,306,000/=, comprising:
a. General damages – Kshs. 2,000,000/=;
b. Cost of prosthesis – Kshs. 700,000/=;
c. Loss of earning capacity – Kshs. 600,000/=;
d. Special damages – Kshs. 6,000/=,and
e. Costs and interest.
Liability was apportioned wholly against the Appellant/applicant.
5. The trial court granted a 30-day stay of execution. The Appellant lodged his Memorandum of Appeal on 13 th March 2026, challenging, inter alia, the finding on liability, the reliance on medical documents allegedly not formally produced, and the awards for prosthesis and loss of earning capacity.
6. Following the expiry of the 30-day stay, the Respondent commenced execution and issued a Notice to Show Cause dated 24 th April 2026 requiring the Appellant to appear on 26 th May 2026 and show cause why he should not be arrested and committed to civil jail for failure to satisfy the decree, stated at Kshs. 3,618,972/= inclusive of interest, costs and collection fees.
The Respondent's case
7. The Respondent does not oppose a stay in principle but contests the terms upon which it should be granted. He proposes that one-half of the decretal sum be paid to him forthwith and the balance be deposited in an interest-earning joint account in the names of the advocates for the parties pending determination of the appeal.
8. The Respondent further maintains that he is a person of means and would be able to refund any amount paid to him should the appeal succeed. He contends that the Applicant has been indolent and only approached the Court after execution had commenced. He also characterises the appeal as frivolous.
The further affidavit
9. The Respondent objects to the further affidavit sworn on 13 th August 2026 on the ground that it was filed after the matter had been fixed for disposal by written submissions and without leave of the Court.
10. The Applicant's further affidavit particularises the security offered, namely land parcel Molo South/Ikumbi Block 4/100.
11. Order 51 Rule 14(3) of the Civil Procedure Rules requires leave before a further affidavit is filed in such circumstances. The Court therefore disapproves the manner in which the affidavit was introduced.
12. However, the question before the Court is whether the affidavit should be struck out in the circumstances of this case. The Respondent was afforded an opportunity to respond and in his submissions dated 17 th August 2026, he addressed the proposed security in detail. No specific prejudice arising from the late filing has been demonstrated.
13. The further Affidavit principally particularises the form of security which the Applicant had already indicated, in his supporting affidavit, that he was willing to provide on such terms as the Court might impose.
14. In the circumstances, and bearing in mind Article 159(2)(d) of the Constitution and the overriding objectives under Sections 1A and 1B of the Civil Procedure Act, I decline to strike out the further Affidavit. This should not, however, be understood as condoning the filing of further affidavits without leave. Parties and counsel are expected to comply with the rules and seek leave where required.
15. The jurisdiction to grant a stay of execution pending appeal is governed principally by Order 42 Rule 6(2) of the Civil Procedure Rules. An applicant must satisfy the Court that:
a. substantial loss may result unless the order for stay is made
b. the application has been made without unreasonable delay
c. such security as the Court orders for the due performance of the decree has been given.
16. The purpose of the jurisdiction is to preserve the subject matter of the appeal so that the successful party is able to obtain the benefit of the appellate process, while at the same time safeguarding the decree-holder's right to enjoy the fruits of the judgment.
17. In Butt v Rent Restriction Tribunal [1979] KECA 22 (KLR) , the Court of Appeal emphasised that the discretion to grant stay should be exercised in a manner that does not render an appeal nugatory where there is no overwhelming hindrance to doing so.
18. In James Wangalwa & Another v Agnes Naliaka Cheseto [2012] eKLR , the Court explained that execution, by itself, does not constitute substantial loss. The Applicant must demonstrate circumstances showing that execution would create a situation that would irreparably affect the essential core of his position as the successful appellant.
19. The Court must therefore consider the circumstances of each case, including the nature of the decree, the consequences of execution, the conduct of the parties and the adequacy of the proposed security.
Analysis and determination;
( a) Arguability of the Appeal
20. Although arguability is not one of the express requirements under Order 42 Rule 6(2), it is a relevant consideration in determining whether the Court should preserve the subject matter pending appeal.
21. I have considered the Memorandum of Appeal. The Applicant challenges, among other matters, the finding of 100% liability, the evidentiary treatment of medical documents and the awards made for prosthesis and loss of earning capacity.
22. Without expressing any view on the merits of those grounds, I am satisfied that they raise bona fide questions deserving consideration on appeal. The appeal is therefore arguable.
(b ) Substantial Loss
23. The Respondent contends that the Applicant has not demonstrated substantial loss, particularly because the Respondent has sworn that he is financially capable of refunding the decretal sum if the appeal succeeds.
24. Ordinarily, where substantial loss is founded on the risk that a decretal sum may be irrecoverable, the Applicant must lay an appropriate evidential basis for that contention. The burden may then shift to the decree-holder to demonstrate his ability to refund the money.
25. That, however, is not the only circumstance in which substantial loss may arise.
26. In the present case, the execution proceedings have progressed beyond a mere threat of attachment. The Notice to Show Cause dated 24 th April 2026 expressly contemplates the Applicant's arrest and committal to civil jail for non-payment of the decree.
27. The deprivation of personal liberty is qualitatively different from the temporary deprivation of money. Should an appellant be incarcerated and subsequently succeed on appeal, the successful appeal cannot retrospectively restore the period of liberty lost.
28. Having regard to the nature of the decree, the arguable grounds of appeal, the pending threat of committal and the Applicant's prompt challenge to the judgment, I am satisfied that the Applicant has demonstrated substantial loss within the meaning of Order 42 Rule 6.
(c) Delay
29. Judgment was delivered on 9 th March 2026. The Memorandum of Appeal was filed on 13 th March 2026, only four days later. The present application was filed on 7 th May 2026, approximately two months after judgment.
30. More importantly, the application followed the issuance of the Notice to Show Cause dated 24 th April 2026 and was filed before the scheduled date for the Applicant to appear and show cause.
31. In the circumstances, and taking into account the prompt filing of the appeal itself, I find that the application was made without unreasonable delay.
(d) Security
32. The principal issue is the nature and adequacy of the security to be furnished.
33. The Respondent proposes payment of one-half of the decretal sum to him and deposit of the balance in a joint interest-earning account.
34. The Applicant, on the other hand, proposes land parcel Molo South/Ikumbi Block 4/100 as security. He states that the property measures approximately 2.987 hectares, is unencumbered and has an estimated market value of Kshs. 4,000,000/=. He has also expressed willingness to deposit the original title deed in Court and refrain from dealing with the property pending the appeal.
35. Order 42 Rule 6(2)(b) does not prescribe payment of a portion of the decree to the decree-holder as a mandatory condition for stay. The requirement is for security for the due performance of the decree as may ultimately be binding upon the Applicant.
36. It follows that partial payment of the decree is not, by itself, a prerequisite to the grant of stay. The Court must instead determine whether the proposed security is sufficient to protect the decree-holder's interests pending the appeal.
37. The Applicant's assertion that the property is worth Kshs. 4,000,000/= is unsupported by an independent valuation report. The Court cannot, on the basis of an interested party's bare estimate, conclusively determine the value of property offered as security.
38. Further, the mere deposit of a title deed does not, without more, create an immediately realisable security equivalent to cash or a bank guarantee. The practical value of land as security depends upon its market and forced-sale value, the existence of any encumbrances, and the legal mechanism available for its realisation.
39. Nevertheless, the Applicant's proposal demonstrates an intention to secure the decree rather than defeat execution. It would therefore be disproportionate to reject the proposal outright without affording the Applicant an opportunity to substantiate the value of the property and put in place an effective form of security.
40. The Court must consequently adopt a condition that protects both parties: the Applicant's right to pursue the appeal and the Respondent's right to have the decree secured pending its determination. However, the most appropriate and reasonable is for a substantial part of the judgment amount to be deposited in court instead of the offer to retain a title deed.
Disposition
41. In the end the motion dated 7 th May, 2026 is allowed giving rise to issuance of the following orders:
(i) There be an order for stay of execution of the Judgment and Decree of the Chief Magistrate's Court at Molo delivered on 9 th March 2026 in Molo CMCC No. E463 of 2023 pending the hearing and determination of the appeal on condition that the appellant deposits a sum of Ksh 3,000,000/= in court within 45 days. In default stay orders shall lapse automatically. (ii) Costs of the application to abide the outcome of appeal.
Orders accordingly.
Dated, signed and delivered at Nakuru this 1 st day of September, 2026.
J. K. SERGON
JUDGE
In the presence of :
Rutoh C/A
No Appearances
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2. The application is supported by the Applicant's Affidavit sworn on 7 th May 2026 and the Further Affidavit sworn on 13 th August 2026. It is opposed by the Respondent through a Replying Affidavit sworn on 28 th May 2026. The parties filed written submissions, which I have considered together with the authorities cited therein.
Background
The applicant’s case
3. As per the trial court’s judgment dated 9 th March 2026, the parties are brothers. The Respondent instituted Molo CMCC No. E463 of 2023 against the Appellant in respect of injuries allegedly sustained on 12 th March 2023. His case was that, during a boundary dispute, the Appellant struck him with a panga, resulting in the traumatic amputation of his left hand at the wrist.
4. Judgment was delivered on 9 th March 2026 in favour of the Respondent. The trial court awarded a total of Kshs. 3,306,000/=, comprising:
a. General damages – Kshs. 2,000,000/=;
b. Cost of prosthesis – Kshs. 700,000/=;
c. Loss of earning capacity – Kshs. 600,000/=;
d. Special damages – Kshs. 6,000/=,and
e. Costs and interest.
Liability was apportioned wholly against the Appellant/applicant.
5. The trial court granted a 30-day stay of execution. The Appellant lodged his Memorandum of Appeal on 13 th March 2026, challenging, inter alia, the finding on liability, the reliance on medical documents allegedly not formally produced, and the awards for prosthesis and loss of earning capacity.
6. Following the expiry of the 30-day stay, the Respondent commenced execution and issued a Notice to Show Cause dated 24 th April 2026 requiring the Appellant to appear on 26 th May 2026 and show cause why he should not be arrested and committed to civil jail for failure to satisfy the decree, stated at Kshs. 3,618,972/= inclusive of interest, costs and collection fees.
The Respondent's case
7. The Respondent does not oppose a stay in principle but contests the terms upon which it should be granted. He proposes that one-half of the decretal sum be paid to him forthwith and the balance be deposited in an interest-earning joint account in the names of the advocates for the parties pending determination of the appeal.
8. The Respondent further maintains that he is a person of means and would be able to refund any amount paid to him should the appeal succeed. He contends that the Applicant has been indolent and only approached the Court after execution had commenced. He also characterises the appeal as frivolous.
The further affidavit
9. The Respondent objects to the further affidavit sworn on 13 th August 2026 on the ground that it was filed after the matter had been fixed for disposal by written submissions and without leave of the Court.
10. The Applicant's further affidavit particularises the security offered, namely land parcel Molo South/Ikumbi Block 4/100.
11. Order 51 Rule 14(3) of the Civil Procedure Rules requires leave before a further affidavit is filed in such circumstances. The Court therefore disapproves the manner in which the affidavit was introduced.
12. However, the question before the Court is whether the affidavit should be struck out in the circumstances of this case. The Respondent was afforded an opportunity to respond and in his submissions dated 17 th August 2026, he addressed the proposed security in detail. No specific prejudice arising from the late filing has been demonstrated.
13. The further Affidavit principally particularises the form of security which the Applicant had already indicated, in his supporting affidavit, that he was willing to provide on such terms as the Court might impose.
14. In the circumstances, and bearing in mind Article 159(2)(d) of the Constitution and the overriding objectives under Sections 1A and 1B of the Civil Procedure Act, I decline to strike out the further Affidavit. This should not, however, be understood as condoning the filing of further affidavits without leave. Parties and counsel are expected to comply with the rules and seek leave where required.
15. The jurisdiction to grant a stay of execution pending appeal is governed principally by Order 42 Rule 6(2) of the Civil Procedure Rules. An applicant must satisfy the Court that:
a. substantial loss may result unless the order for stay is made
b. the application has been made without unreasonable delay
c. such security as the Court orders for the due performance of the decree has been given.
16. The purpose of the jurisdiction is to preserve the subject matter of the appeal so that the successful party is able to obtain the benefit of the appellate process, while at the same time safeguarding the decree-holder's right to enjoy the fruits of the judgment.
17. In Butt v Rent Restriction Tribunal [1979] KECA 22 (KLR) , the Court of Appeal emphasised that the discretion to grant stay should be exercised in a manner that does not render an appeal nugatory where there is no overwhelming hindrance to doing so.
18. In James Wangalwa & Another v Agnes Naliaka Cheseto [2012] eKLR , the Court explained that execution, by itself, does not constitute substantial loss. The Applicant must demonstrate circumstances showing that execution would create a situation that would irreparably affect the essential core of his position as the successful appellant.
19. The Court must therefore consider the circumstances of each case, including the nature of the decree, the consequences of execution, the conduct of the parties and the adequacy of the proposed security.
Analysis and determination;
( a) Arguability of the Appeal
20. Although arguability is not one of the express requirements under Order 42 Rule 6(2), it is a relevant consideration in determining whether the Court should preserve the subject matter pending appeal.
21. I have considered the Memorandum of Appeal. The Applicant challenges, among other matters, the finding of 100% liability, the evidentiary treatment of medical documents and the awards made for prosthesis and loss of earning capacity.
22. Without expressing any view on the merits of those grounds, I am satisfied that they raise bona fide questions deserving consideration on appeal. The appeal is therefore arguable.
(b ) Substantial Loss
23. The Respondent contends that the Applicant has not demonstrated substantial loss, particularly because the Respondent has sworn that he is financially capable of refunding the decretal sum if the appeal succeeds.
24. Ordinarily, where substantial loss is founded on the risk that a decretal sum may be irrecoverable, the Applicant must lay an appropriate evidential basis for that contention. The burden may then shift to the decree-holder to demonstrate his ability to refund the money.
25. That, however, is not the only circumstance in which substantial loss may arise.
26. In the present case, the execution proceedings have progressed beyond a mere threat of attachment. The Notice to Show Cause dated 24 th April 2026 expressly contemplates the Applicant's arrest and committal to civil jail for non-payment of the decree.
27. The deprivation of personal liberty is qualitatively different from the temporary deprivation of money. Should an appellant be incarcerated and subsequently succeed on appeal, the successful appeal cannot retrospectively restore the period of liberty lost.
28. Having regard to the nature of the decree, the arguable grounds of appeal, the pending threat of committal and the Applicant's prompt challenge to the judgment, I am satisfied that the Applicant has demonstrated substantial loss within the meaning of Order 42 Rule 6.
(c) Delay
29. Judgment was delivered on 9 th March 2026. The Memorandum of Appeal was filed on 13 th March 2026, only four days later. The present application was filed on 7 th May 2026, approximately two months after judgment.
30. More importantly, the application followed the issuance of the Notice to Show Cause dated 24 th April 2026 and was filed before the scheduled date for the Applicant to appear and show cause.
31. In the circumstances, and taking into account the prompt filing of the appeal itself, I find that the application was made without unreasonable delay.
(d) Security
32. The principal issue is the nature and adequacy of the security to be furnished.
33. The Respondent proposes payment of one-half of the decretal sum to him and deposit of the balance in a joint interest-earning account.
34. The Applicant, on the other hand, proposes land parcel Molo South/Ikumbi Block 4/100 as security. He states that the property measures approximately 2.987 hectares, is unencumbered and has an estimated market value of Kshs. 4,000,000/=. He has also expressed willingness to deposit the original title deed in Court and refrain from dealing with the property pending the appeal.
35. Order 42 Rule 6(2)(b) does not prescribe payment of a portion of the decree to the decree-holder as a mandatory condition for stay. The requirement is for security for the due performance of the decree as may ultimately be binding upon the Applicant.
36. It follows that partial payment of the decree is not, by itself, a prerequisite to the grant of stay. The Court must instead determine whether the proposed security is sufficient to protect the decree-holder's interests pending the appeal.
37. The Applicant's assertion that the property is worth Kshs. 4,000,000/= is unsupported by an independent valuation report. The Court cannot, on the basis of an interested party's bare estimate, conclusively determine the value of property offered as security.
38. Further, the mere deposit of a title deed does not, without more, create an immediately realisable security equivalent to cash or a bank guarantee. The practical value of land as security depends upon its market and forced-sale value, the existence of any encumbrances, and the legal mechanism available for its realisation.
39. Nevertheless, the Applicant's proposal demonstrates an intention to secure the decree rather than defeat execution. It would therefore be disproportionate to reject the proposal outright without affording the Applicant an opportunity to substantiate the value of the property and put in place an effective form of security.
40. The Court must consequently adopt a condition that protects both parties: the Applicant's right to pursue the appeal and the Respondent's right to have the decree secured pending its determination. However, the most appropriate and reasonable is for a substantial part of the judgment amount to be deposited in court instead of the offer to retain a title deed.
Disposition
41. In the end the motion dated 7 th May, 2026 is allowed giving rise to issuance of the following orders:
(i) There be an order for stay of execution of the Judgment and Decree of the Chief Magistrate's Court at Molo delivered on 9 th March 2026 in Molo CMCC No. E463 of 2023 pending the hearing and determination of the appeal on condition that the appellant deposits a sum of Ksh 3,000,000/= in court within 45 days. In default stay orders shall lapse automatically. (ii) Costs of the application to abide the outcome of appeal.
Orders accordingly.
Dated, signed and delivered at Nakuru this 1 st day of September, 2026.
J. K. SERGON
JUDGE
In the presence of :
Rutoh C/A
No Appearances
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