REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MAKUENI
HCCA NO. 143 OF 2024
STEPHEN NJENGA KANGETHE …………APPELLANT/APPLICANT
VERSUS
AARON MWANGANGI KILONZO ……………………..RESPONDENT
RULING
(1) The application before me is dated 10/3/2025 brought under Order 51 rule 1, Order 42 rule 6 of Civil Procedure Rules, sections 1A, 1B, 3A of Civil Procedure Act.
The application seeks:-
1) Spent
2) Spent
3) This court does grant stay of execution of the Judgment and decree and Notice to show cause in Makindu SCCOMM No. E062/2024 pending Hearing and Determination of the appeal herein.
4) That costs be in the cause.
(2) The application is supported by the grounds on its face and the supporting affidavit of the appellant/applicant – Stephen Njenga Kang’ethe.
(3) From the application, affidavits submissions and judgment of the subordinate court, the matter arose out of an arrangement between the applicant and the respondent where the applicant owed the respondent Ksh. 500000/=. It is stated that he defaulted in the agreed repayment plan and the matter ended up before the small claims court. He avers that he has paid 400000/= yet the Adjudicator ordered him to repay Ksh. 450000/= and costs of 30000/=.
(4) Aggrieved by that finding he has filed a memorandum of appeal – seeking inter alia, a retrial, reconciliation of the accounts as he provided evidence of payment which was ignored by the adjudicator.
(5) Parties filed written submissions through respective counsel.
(6) The applicant relies on Order 42 rule 6 of the Civil Procedure Rules. The applicant also relies on Co-operative Bank of Kenya Limited vs Banking Insurance & Finance Union (Kenya) [2015] eKLR where the court held as follows:
“-An order of stay of execution (pending appeal) is ordinarily an interim order which seeks to delay the performance of positive obligations that are set out in a decree as a result of a judgment. The delay of performance presupposes the existence of a situation to stay – called a positive order – either an order that has not been compiled with or has partly been complied with.”
(7) The conditions for granting of execution were outlined by the Court of Appeal in the case of RWW vs. EKW [2019] eKLR where the court addressed itself on this as hereunder:-
“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 weight 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.”
(8) Similarly, in Vishran Ravil Halai vs. Thornton & Turpin Civil Application No. Nairobi 15 of 1990 [1990] KLR 365 , the same court of appeal outlined the requirements for granting stay of execution pending appeal and held that:-
“whereas the Court of Appeal’s power to grant a stay pending appeal is unfettered, the High Court’s jurisdiction to do so under Order 41 rule 6 (as it then was) of the Civil Procedure Rules is fettered by three conditions namely, established of a sufficient cause, satisfaction of substantial loss and the furnishing of security.”
(9) The applicant also argues that he has an appeal that sets out triable issues – that the delay is not unreasonable and has been explained, that should he not get stay he will suffer substantial loss. He has offered to deposit security.
(10) For the respondent it is submitted that the claim arises out of agreements that were not denied at the trial. That the applicant has not complied with order 42 rule 6 Civil Procedure Code.
(11) The respondent relies on Vishram Ravji Halai vs. Thornton & Civil Application No. Nai. 15 of 1990 [1990] KLR 365, the Court of Appeal held that:
“…Whereas the Court of Appeal’s power to grant a stay pending appeal is unfettered, the High Court’s jurisdiction to do so under Order 41 rule 6 of the Civil Procedure Rules is fettered by three conditions namely, establishment of a sufficient cause, satisfaction of substantial loss and the furnishing of security. Further the application must be made without unreasonable delay…”
(12) It is argued that Judgment was delivered on 15/11/2024, Appeal filed on 10/12/2024, this application, on 10/3/2024 – 4 months down the line. The action was only taken after a Notice to show cause was issued to the applicant.
(13) It is submitted that the applicant even offered to deposit the entire directed sum of Ksh 492,872 in a joint interest earning account in the name of both counsel. It is submitted that the respondent is a man of means who would be able to refund the money of paid – and if the appeal succeeds.
Analysis & Determination
(14) I have considered the application, perused the lower court Judgment, the memorandum of appeal, rival affidavits and submissions. The issue is whether the applicant has established the three conditions under order 42 rule 6 of Civil Procedure Rules.
(15) On timeliness in filing of the application, the application has been brought 4 months after the Judgment. However, one can see what the appeal was filed in good time. The applicant has demonstrated that he suffered ill health and his mother for and that explained the delay – Delay becomes unreasonable when there is no explanation. The delay is explained.
(16) The applicant has a memorandum of appeal with triable issues – what exactly was borrowed, what was paid back, what was the balance – the submission about extraneous matters prima facie creates a situation where the applicant’s request is reasonable and I agree that the appeal on its face raise triable issues.
(17) If the applicant is ordered to pay the whole sum, with the claim to have paid almost all of it already he would suffer substantial loss.
(18) He has offered security to be determined by court.
(19) In the circumstances I find that the application for stay is merited – and I allow it on condition that the applicant deposits the sum of Ksh. 150000/= in a joint interest earning account of both counsel in 30 days with effect from 11 th May 2026.
(20) In default execution to issue .
(21) Costs to abide the appeal.
RULING dated, signed and delivered virtually this 8 th May 2026
Mumbua T Matheka
Judge
CA Chrispol
Singi for the Appellant
Wasolo for Respondent
RULING HCCA 143 OF 2024 Page 2 of 2
IN THE HIGH COURT OF KENYA AT MAKUENI
HCCA NO. 143 OF 2024
STEPHEN NJENGA KANGETHE …………APPELLANT/APPLICANT
VERSUS
AARON MWANGANGI KILONZO ……………………..RESPONDENT
RULING
(1) The application before me is dated 10/3/2025 brought under Order 51 rule 1, Order 42 rule 6 of Civil Procedure Rules, sections 1A, 1B, 3A of Civil Procedure Act.
The application seeks:-
1) Spent
2) Spent
3) This court does grant stay of execution of the Judgment and decree and Notice to show cause in Makindu SCCOMM No. E062/2024 pending Hearing and Determination of the appeal herein.
4) That costs be in the cause.
(2) The application is supported by the grounds on its face and the supporting affidavit of the appellant/applicant – Stephen Njenga Kang’ethe.
(3) From the application, affidavits submissions and judgment of the subordinate court, the matter arose out of an arrangement between the applicant and the respondent where the applicant owed the respondent Ksh. 500000/=. It is stated that he defaulted in the agreed repayment plan and the matter ended up before the small claims court. He avers that he has paid 400000/= yet the Adjudicator ordered him to repay Ksh. 450000/= and costs of 30000/=.
(4) Aggrieved by that finding he has filed a memorandum of appeal – seeking inter alia, a retrial, reconciliation of the accounts as he provided evidence of payment which was ignored by the adjudicator.
(5) Parties filed written submissions through respective counsel.
(6) The applicant relies on Order 42 rule 6 of the Civil Procedure Rules. The applicant also relies on Co-operative Bank of Kenya Limited vs Banking Insurance & Finance Union (Kenya) [2015] eKLR where the court held as follows:
“-An order of stay of execution (pending appeal) is ordinarily an interim order which seeks to delay the performance of positive obligations that are set out in a decree as a result of a judgment. The delay of performance presupposes the existence of a situation to stay – called a positive order – either an order that has not been compiled with or has partly been complied with.”
(7) The conditions for granting of execution were outlined by the Court of Appeal in the case of RWW vs. EKW [2019] eKLR where the court addressed itself on this as hereunder:-
“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 weight 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.”
(8) Similarly, in Vishran Ravil Halai vs. Thornton & Turpin Civil Application No. Nairobi 15 of 1990 [1990] KLR 365 , the same court of appeal outlined the requirements for granting stay of execution pending appeal and held that:-
“whereas the Court of Appeal’s power to grant a stay pending appeal is unfettered, the High Court’s jurisdiction to do so under Order 41 rule 6 (as it then was) of the Civil Procedure Rules is fettered by three conditions namely, established of a sufficient cause, satisfaction of substantial loss and the furnishing of security.”
(9) The applicant also argues that he has an appeal that sets out triable issues – that the delay is not unreasonable and has been explained, that should he not get stay he will suffer substantial loss. He has offered to deposit security.
(10) For the respondent it is submitted that the claim arises out of agreements that were not denied at the trial. That the applicant has not complied with order 42 rule 6 Civil Procedure Code.
(11) The respondent relies on Vishram Ravji Halai vs. Thornton & Civil Application No. Nai. 15 of 1990 [1990] KLR 365, the Court of Appeal held that:
“…Whereas the Court of Appeal’s power to grant a stay pending appeal is unfettered, the High Court’s jurisdiction to do so under Order 41 rule 6 of the Civil Procedure Rules is fettered by three conditions namely, establishment of a sufficient cause, satisfaction of substantial loss and the furnishing of security. Further the application must be made without unreasonable delay…”
(12) It is argued that Judgment was delivered on 15/11/2024, Appeal filed on 10/12/2024, this application, on 10/3/2024 – 4 months down the line. The action was only taken after a Notice to show cause was issued to the applicant.
(13) It is submitted that the applicant even offered to deposit the entire directed sum of Ksh 492,872 in a joint interest earning account in the name of both counsel. It is submitted that the respondent is a man of means who would be able to refund the money of paid – and if the appeal succeeds.
Analysis & Determination
(14) I have considered the application, perused the lower court Judgment, the memorandum of appeal, rival affidavits and submissions. The issue is whether the applicant has established the three conditions under order 42 rule 6 of Civil Procedure Rules.
(15) On timeliness in filing of the application, the application has been brought 4 months after the Judgment. However, one can see what the appeal was filed in good time. The applicant has demonstrated that he suffered ill health and his mother for and that explained the delay – Delay becomes unreasonable when there is no explanation. The delay is explained.
(16) The applicant has a memorandum of appeal with triable issues – what exactly was borrowed, what was paid back, what was the balance – the submission about extraneous matters prima facie creates a situation where the applicant’s request is reasonable and I agree that the appeal on its face raise triable issues.
(17) If the applicant is ordered to pay the whole sum, with the claim to have paid almost all of it already he would suffer substantial loss.
(18) He has offered security to be determined by court.
(19) In the circumstances I find that the application for stay is merited – and I allow it on condition that the applicant deposits the sum of Ksh. 150000/= in a joint interest earning account of both counsel in 30 days with effect from 11 th May 2026.
(20) In default execution to issue .
(21) Costs to abide the appeal.
RULING dated, signed and delivered virtually this 8 th May 2026
Mumbua T Matheka
Judge
CA Chrispol
Singi for the Appellant
Wasolo for Respondent
RULING HCCA 143 OF 2024 Page 2 of 2