1. In his Notice of Motion dated 20th August 2025, the applicant, Tadeo Njora Wanderi sought stay of execution of the judgment entered in favour of the 1st Respondent by the trial court on 17th April 2025 pending the hearing and determination of his
appeal.
2. The application is supported by the grounds stated on its face and the depositions made by the applicant in his affidavit sworn on 20th August 2025. In a nutshell, the applicant contends that he is aggrieved by the trial courts judgment hence the instant appeal; that the 1st respondent (hereinafter the respondent) has commenced execution by instructing the 2nd respondent to attach his property and if stay was not granted, his appeal will be rendered nugatory. The applicant also averred that he was ready and willing to abide by any condition as to security that the court will deem just to order to safeguard the rights of both parties.
3. The application is contested by the respondent’s learned counsel Mr. J. Mugane who swore a replying affidavit on 23rd August 2025. Counsel deposed that the application was misconceived, bad in law and amounted to abuse of the court process as in his view, it was solely meant to delay the respondent’s inalienable right of enjoyment of fruits of her judgment; that the applicant was guilty of deceit and non-disclosure of material facts as he failed to disclose that he had previously filed a similar application which was determined by the court in his favour on 9th June 2025.
4. Counsel further deposed that in a ruling dated 9th June 2025, this court granted the applicant stay of execution on condition that he deposited the entire decretal amount in court within 14 days in default of which execution would issue; that the applicant failed to comply with terms of the conditional stay and that therefore, the execution commenced by the respondent through the 2nd respondent was lawful as it was sanctioned by the court; that having rendered its decision on 9th June 2025 on a similar application, this court was functus officio and cannot grant the orders sought.
5. In addition, Mr. Mugane deposed that the orders sought were discretionary and the applicant did not deserve exercise of the court’s discretion given that there was an unreasonable delay of five months in filing the instant application which delay was unexplained except on the fact that the applicant was relentless in his quest to engage the respondent in endless litigation; that in any event, the application lacked merit as the applicant had failed to demonstrate that he was likely to suffer substantial or irreparable loss if the orders sought were not granted.
6. The application was canvassed by way of written submissions. The applicant’s submission filed through Ms. Kiguru Kahiga & Company Advocate are dated 2nd December 2025 while those of the respondents filed by Ms. Mugendi Karigi & Company Advoca tes are dated 3rd December 2025.
7. In his brief submissions, the applicant asserted that the respondent had in principle conceded to grant of stay as sought and the only issue in contention was the security the applicant should provide for due performance of the decree. The applicant contended that he had consistently demonstrated willingness to provide security but since he had been abandoned by his insurance company, a fact within the respondent’s knowledge and owing to the prevailing hard economic times, the court should permit him to deposit as security half of the decretal sum which amounted to Kshs 500,000 within 30 days.
8. The respondent’s submissions substantially replicated the averments made in the replying affidavit sworn on her behalf by her learned counsel. The respondent emphasized that the application was bad in law as it was allegedly res judicata given that a similar application had been determined by the court on 9th June 2025. Relying on the authority of Muchanga Instruments Ltd v Safaris unlimited (Africa) Ltd & 2 others (2009) KLR 229, the respondent submitted that the application amounted to an abuse of the court process as it was designed to waste the court’s time.
9. The respondent further submitted that the applicant was not deserving of grant of the orders sought having failed to satisfy the conditions prerequisite to grant of stay as enumerated in Order 42 Rule 6 (2) of the Civil Procedure Rules; that the mere filing of an appeal does not by itself guarantee stay of execution. For this proposition, the applicant relied on the decision of Visram J (as he then was) in Teresiah Kimani V Githere Instruments CA No. 944 of 2003 in which the Hon. Judge stressed that to succeed in an application for stay, an applicant must satisfy the three conditions set out in Order 42 Rule 6 (2) of the Civil Procedure Rules which I will advert to shortly.
10. Having carefully considered the application, the affidavits on record and the parties written submissions, I find that only two key issues arise for my determination which are;
i) Whether the application was res judicata as alleged by the respondent,
ii) If the answer to issue No. 1 is in the negative, whether the applicant had demonstrated that he was entitled to the orders
sought.
11. Turning to the first issue, although the respondent had in the replying affidavit and in her written submissions claimed that this court had previously determined a similar application leading to grant of conditional stay on 9th June 2025, the court record confirms that the application referred to by the respondent was the Notice of Motion dated 8th May 2025 which was filed before the trial court. The application culminated to the ruling delivered on 9th June 2025 which granted the applicant stay on condition that he deposited the entire decretal amount in court within 14 days in default of which execution would automatically issue. The respondent’s case is that since the instant application was filed subsequently seeking similar orders, the same was res judicata.
12. On my part, I am unable to agree with the respondent’s submission that the instant application was res judicata. I say so because to start with, the previous application was determined by the trial court in the primary suit not by this court and given the provisions of Order 42 Rule 6 (1) of the Civil Procedure Rules , the applicant was within his rights to approach this court seeking similar orders after he lodged his appeal.
13. For clarity, I think it is important to reproduce the provisions of Order 42 Rule 6 (1) of the Civil Procedure Rules ( CPR). The provision states as follows: -
" (1) No appeal or second appeal shall operate as a stay of execution or proceedings 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."
14. From my reading of the above provision, the jurisdiction of the High Court to determine an application for stay pending appeal is not affected by the fact that a similar application had been made in the lower court or its outcome. As long as an appeal from the substantive decision of the lower court had been proffered, Order 42 Rule 6 (1) of the CPR bequeathed the High Court with original jurisdiction to entertain an application for stay whether or not a similar application had been granted or refused by the trial court. Had the previous application been determined by this court, different considerations would have applied and the respondents submissions that the instant application was res judicata would have had good grounding.
15. That said, it is my view that where an applicant had been granted conditional stay by the trial court and had failed to comply with terms of the order for stay without demonstrating sufficient cause for that failure, a repeat application for stay in an appellate court like the one filed before this court though not res judicata amounted to an abuse of the court process for the reasons stated
hereunder.
16. Under the overriding objective of the Civil Procedure Act which is set out in Sections 1A & 1B of the Civil Procedure Act (CPA) , this court is enjoined to facilitate the just, expeditious, proportionate and affordable resolution of civil disputes which include appeals. And under Section 1 A (3) of the CPA, parties to civil proceedings and their advocates are under a duty to assist the court to further the overriding objective of the Act by participating in the processes of the court and complying with directions and orders of the
Court.
17. In the premises, by virtue of Section 1A (3) of the Civil Procedure
Act , the applicant had a duty to obey all court processes and orders. His conduct of filing the current application seeking similar orders as those granted by the trial court which he had apparently chosen to disobey smacked of bad faith and amounted to an abuse of the court process.
18. It is also important to note that an order of stay of execution pending appeal is a discretionary remedy which is only granted to deserving litigants. I agree with the submissions made by the applicant that to be deserving of such orders, an applicant must demonstrate existence of the conditions set out in Order 42 Rule 6 (2) of the Civil Procedure Rules which are;
i) That he or she is likely to suffer substantial loss unless the orders sought were granted;
ii) That the application was filed timeously
iii) That he has offered security for the due performance of the decree or order as may ultimately be binding on him.
19. In this case, although the applicant stated in his submissions that the respondent had basically conceded to grant of stay and the only issue in contention was the nature or amount of security to be offered, this submission was strongly refuted by the respondent as can be discerned from her submissions.
20. Having in mind the above legal position, the question I must now address is whether the applicant has satisfied the requirements of Order 42 Rule 6 (2) of the CPR in order to be entitled to the orders sought. Regarding whether the application was filed
timeously, the record shows that the application was filed about two months after a similar application was determined by the trial court. This in my view cannot be said to be inordinate or unreasonable delay. I therefore find that the application was filed within a reasonable time.
21. It is however my finding that although the application was filed within a reasonable time, the applicant has not claimed, leave alone demonstrated, that if stay was not granted as prayed, he was likely to suffer substantial loss. In monetary decrees, substantial loss would only occur if it was demonstrated on a balance of probabilities that the respondent was impecunious or was not possessed of means to refund the decretal sum if execution proceeded and the appeal was eventually successful. This is what would render the appeal nugatory. It must be remembered that execution is a lawful process and the fact that it has been put in motion does not by itself amount to substantial loss.
22. In view of the foregoing, I am satisfied that the applicant has failed to demonstrate that he was deserving of exercise of the court’s discretion in his favour. Having made the above finding, I do not find it necessary to consider the adequacy or otherwise of the security offered by the applicant (of half the decretal sum). Consequently, it is my finding that the application lacks merit and it is hereby dismissed.
23. Costs of the application shall abide outcome of the appeal.
It is so ordered.
DATED, SIGNED and DELIVERED Virtually this 23rd day of April 2026.
appeal.
2. The application is supported by the grounds stated on its face and the depositions made by the applicant in his affidavit sworn on 20th August 2025. In a nutshell, the applicant contends that he is aggrieved by the trial courts judgment hence the instant appeal; that the 1st respondent (hereinafter the respondent) has commenced execution by instructing the 2nd respondent to attach his property and if stay was not granted, his appeal will be rendered nugatory. The applicant also averred that he was ready and willing to abide by any condition as to security that the court will deem just to order to safeguard the rights of both parties.
3. The application is contested by the respondent’s learned counsel Mr. J. Mugane who swore a replying affidavit on 23rd August 2025. Counsel deposed that the application was misconceived, bad in law and amounted to abuse of the court process as in his view, it was solely meant to delay the respondent’s inalienable right of enjoyment of fruits of her judgment; that the applicant was guilty of deceit and non-disclosure of material facts as he failed to disclose that he had previously filed a similar application which was determined by the court in his favour on 9th June 2025.
4. Counsel further deposed that in a ruling dated 9th June 2025, this court granted the applicant stay of execution on condition that he deposited the entire decretal amount in court within 14 days in default of which execution would issue; that the applicant failed to comply with terms of the conditional stay and that therefore, the execution commenced by the respondent through the 2nd respondent was lawful as it was sanctioned by the court; that having rendered its decision on 9th June 2025 on a similar application, this court was functus officio and cannot grant the orders sought.
5. In addition, Mr. Mugane deposed that the orders sought were discretionary and the applicant did not deserve exercise of the court’s discretion given that there was an unreasonable delay of five months in filing the instant application which delay was unexplained except on the fact that the applicant was relentless in his quest to engage the respondent in endless litigation; that in any event, the application lacked merit as the applicant had failed to demonstrate that he was likely to suffer substantial or irreparable loss if the orders sought were not granted.
6. The application was canvassed by way of written submissions. The applicant’s submission filed through Ms. Kiguru Kahiga & Company Advocate are dated 2nd December 2025 while those of the respondents filed by Ms. Mugendi Karigi & Company Advoca tes are dated 3rd December 2025.
7. In his brief submissions, the applicant asserted that the respondent had in principle conceded to grant of stay as sought and the only issue in contention was the security the applicant should provide for due performance of the decree. The applicant contended that he had consistently demonstrated willingness to provide security but since he had been abandoned by his insurance company, a fact within the respondent’s knowledge and owing to the prevailing hard economic times, the court should permit him to deposit as security half of the decretal sum which amounted to Kshs 500,000 within 30 days.
8. The respondent’s submissions substantially replicated the averments made in the replying affidavit sworn on her behalf by her learned counsel. The respondent emphasized that the application was bad in law as it was allegedly res judicata given that a similar application had been determined by the court on 9th June 2025. Relying on the authority of Muchanga Instruments Ltd v Safaris unlimited (Africa) Ltd & 2 others (2009) KLR 229, the respondent submitted that the application amounted to an abuse of the court process as it was designed to waste the court’s time.
9. The respondent further submitted that the applicant was not deserving of grant of the orders sought having failed to satisfy the conditions prerequisite to grant of stay as enumerated in Order 42 Rule 6 (2) of the Civil Procedure Rules; that the mere filing of an appeal does not by itself guarantee stay of execution. For this proposition, the applicant relied on the decision of Visram J (as he then was) in Teresiah Kimani V Githere Instruments CA No. 944 of 2003 in which the Hon. Judge stressed that to succeed in an application for stay, an applicant must satisfy the three conditions set out in Order 42 Rule 6 (2) of the Civil Procedure Rules which I will advert to shortly.
10. Having carefully considered the application, the affidavits on record and the parties written submissions, I find that only two key issues arise for my determination which are;
i) Whether the application was res judicata as alleged by the respondent,
ii) If the answer to issue No. 1 is in the negative, whether the applicant had demonstrated that he was entitled to the orders
sought.
11. Turning to the first issue, although the respondent had in the replying affidavit and in her written submissions claimed that this court had previously determined a similar application leading to grant of conditional stay on 9th June 2025, the court record confirms that the application referred to by the respondent was the Notice of Motion dated 8th May 2025 which was filed before the trial court. The application culminated to the ruling delivered on 9th June 2025 which granted the applicant stay on condition that he deposited the entire decretal amount in court within 14 days in default of which execution would automatically issue. The respondent’s case is that since the instant application was filed subsequently seeking similar orders, the same was res judicata.
12. On my part, I am unable to agree with the respondent’s submission that the instant application was res judicata. I say so because to start with, the previous application was determined by the trial court in the primary suit not by this court and given the provisions of Order 42 Rule 6 (1) of the Civil Procedure Rules , the applicant was within his rights to approach this court seeking similar orders after he lodged his appeal.
13. For clarity, I think it is important to reproduce the provisions of Order 42 Rule 6 (1) of the Civil Procedure Rules ( CPR). The provision states as follows: -
" (1) No appeal or second appeal shall operate as a stay of execution or proceedings 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."
14. From my reading of the above provision, the jurisdiction of the High Court to determine an application for stay pending appeal is not affected by the fact that a similar application had been made in the lower court or its outcome. As long as an appeal from the substantive decision of the lower court had been proffered, Order 42 Rule 6 (1) of the CPR bequeathed the High Court with original jurisdiction to entertain an application for stay whether or not a similar application had been granted or refused by the trial court. Had the previous application been determined by this court, different considerations would have applied and the respondents submissions that the instant application was res judicata would have had good grounding.
15. That said, it is my view that where an applicant had been granted conditional stay by the trial court and had failed to comply with terms of the order for stay without demonstrating sufficient cause for that failure, a repeat application for stay in an appellate court like the one filed before this court though not res judicata amounted to an abuse of the court process for the reasons stated
hereunder.
16. Under the overriding objective of the Civil Procedure Act which is set out in Sections 1A & 1B of the Civil Procedure Act (CPA) , this court is enjoined to facilitate the just, expeditious, proportionate and affordable resolution of civil disputes which include appeals. And under Section 1 A (3) of the CPA, parties to civil proceedings and their advocates are under a duty to assist the court to further the overriding objective of the Act by participating in the processes of the court and complying with directions and orders of the
Court.
17. In the premises, by virtue of Section 1A (3) of the Civil Procedure
Act , the applicant had a duty to obey all court processes and orders. His conduct of filing the current application seeking similar orders as those granted by the trial court which he had apparently chosen to disobey smacked of bad faith and amounted to an abuse of the court process.
18. It is also important to note that an order of stay of execution pending appeal is a discretionary remedy which is only granted to deserving litigants. I agree with the submissions made by the applicant that to be deserving of such orders, an applicant must demonstrate existence of the conditions set out in Order 42 Rule 6 (2) of the Civil Procedure Rules which are;
i) That he or she is likely to suffer substantial loss unless the orders sought were granted;
ii) That the application was filed timeously
iii) That he has offered security for the due performance of the decree or order as may ultimately be binding on him.
19. In this case, although the applicant stated in his submissions that the respondent had basically conceded to grant of stay and the only issue in contention was the nature or amount of security to be offered, this submission was strongly refuted by the respondent as can be discerned from her submissions.
20. Having in mind the above legal position, the question I must now address is whether the applicant has satisfied the requirements of Order 42 Rule 6 (2) of the CPR in order to be entitled to the orders sought. Regarding whether the application was filed
timeously, the record shows that the application was filed about two months after a similar application was determined by the trial court. This in my view cannot be said to be inordinate or unreasonable delay. I therefore find that the application was filed within a reasonable time.
21. It is however my finding that although the application was filed within a reasonable time, the applicant has not claimed, leave alone demonstrated, that if stay was not granted as prayed, he was likely to suffer substantial loss. In monetary decrees, substantial loss would only occur if it was demonstrated on a balance of probabilities that the respondent was impecunious or was not possessed of means to refund the decretal sum if execution proceeded and the appeal was eventually successful. This is what would render the appeal nugatory. It must be remembered that execution is a lawful process and the fact that it has been put in motion does not by itself amount to substantial loss.
22. In view of the foregoing, I am satisfied that the applicant has failed to demonstrate that he was deserving of exercise of the court’s discretion in his favour. Having made the above finding, I do not find it necessary to consider the adequacy or otherwise of the security offered by the applicant (of half the decretal sum). Consequently, it is my finding that the application lacks merit and it is hereby dismissed.
23. Costs of the application shall abide outcome of the appeal.
It is so ordered.
DATED, SIGNED and DELIVERED Virtually this 23rd day of April 2026.