' RULING
1. The Applicant filed the Notice of Motion dated 29th April 2025 seeking orders that;
a) The court to order stay of execution of the ruling entered against the Appellant herein on 3rd April, 2025, pending the hearing and determination of the appeal herein.
b) Costs of this application be in the cause.
Background Facts
2. The Application was supported by the grounds on the face of it and by the Affidavit of Jacob Musyoka. He stated that the Applicants have filed an Appeal against the said Ruling and if stay of execution is not granted, the Appeal will be rendered nugatory and the Applicant will suffer substantial loss.
3. Further, the Respondent has issued a statutory notice for sale in execution of the orders issued on 3rd April, 2025, and unless the Court intervenes, the Appellant’s appeal, which has high chances of success, will be rendered nugatory. That as a consequence thereof, the Appellant will suffer substantial and irreparable loss.
4. In response to the Application, the Respondent filed grounds of Opposition dated 9th July 2025 on the following grounds;
(i) The Applicant''s Application is misconceived, mischievous, unmeritorious, frivolous, and vexatious.
(ii) The singular motive of the present Application is to stop the Decree Holder from enjoying the fruits of its judgment.
(iii) Pursuant to Order 42, rule 6(2) (b), one of the conditions for the grant of a stay pending Appeal is that the Applicant must make an offer for security. The Court will note that the Applicant has quite conveniently not made any offer to deposit the outstanding loan amount either in Court or in a joint interest-earning account in the name of the advocates, clearly showing that the Application is mischievous and brought in bad faith.
(iv) The Applicant has failed to demonstrate that it shall suffer substantial irreparable loss and damage if a stay of execution is not granted.
(v) It is abundantly clear that any discretion must be exercised in favour of the Respondent, and as such, the Notice of Motion Application dated 29th April 2025 should be dismissed with costs to the Respondent.
Issues for determination
5. The Court has considered the submissions by the parties and has drafted only one issue for determination
a) Whether an order of stay of execution ought to be granted.
Analysis
6. The power of the Court to stay the execution of the judgment/decree pending the determination of the appeal is guided by Order 42 Rule 6 (1) and (2) of the Civil Procedure Rules , which provides that:
(1) No appeal or second appeal shall operate as a stay of execution or proceedings under a decree or order appealed from except appeal case of 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.
7. The Court in the case of Muchiri v Rutere [2023] KEELC 22377 (KLR) held;
“Stay of execution pending appeal is a discretionary power bestowed upon this court by law. In Butt v Rent Restriction Tribunal (1982) KLR 417, the Court of Appeal gave guidance on how a court should exercise the said discretion and held that -;
a. The power of the court to grant or refuse an application for a stay of execution is discretionary power. The discretion should be exercised in such a way as not to prevent an appeal.
b. 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 that appeal court reserve the judge’s decision.
c. A Judge should not refuse a stay if there are good grounds for it granting it merely because in his opinion, a better remedy may become available to the applicant at the end of the proceedings.
d. The court in exercising its discretion whether to grant (or) refuse an application for stay will consider the special circumstances in this case were that there was a larger amount of rent in dispute and the appellant had an undoubted right of appeal.
e. the court in exercising its power 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 for costs as ordered will cause the order for stay of execution to lapse.”
8. On the issue of substantial loss, it was the Applicant’s submission that it has established beyond question that the intended sale of land is not a loss that can be compensated in damages; it is permanent dispossession. Once the auctioneer’s hammer falls, the Applicant will have been divested of its proprietary rights forever, regardless of the outcome of the Appeal.
9. While the Respondent took the position that the Applicant has failed to prove that it shall suffer substantial loss if the stay of execution order is not granted, the Court is satisfied that should the sale of the land be carried out, the Applicant will indeed suffer a substantial loss.
10. What about in determining whether not granting the order will occasion substantial loss to the Applicant? Substantial loss was explained in the case of JAMES WANGALWA & ANOTHER V AGNES NALIAKA CHESETO [2012] KEHC 1094 (KLR) , 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 ... 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.”
11. Was there a delay in filing the present Application? The Court notes that while the impugned Ruling was delivered on 3rd April 2025, the application was filed on 29th April 2025. Therefore, it cannot be said that there was an inordinate delay in filing the Application.
12. What of Security? On this, the Applicant expressed readiness to abide by the terms on security as may be directed by the Court. In contrast, the Respondent asserted that the Applicant having failed to demonstrate or offer security, the Application ought to be dismissed.
13. It is the Court’s considered view that the Applicant has demonstrated that it is ready to abide by the terms on security as may be directed by the Court. Consequently, the prayer for stay of execution is hereby allowed but on condition the Applicant deposits a half of the amount said to be in default in the sum of Ksh.6,529,661.84 (as per the Ruling dated 3rd April, 2025) which translates to a sum of Kshs.3,264,830.92. This amount will be deposited in a joint interest-earning account in the names of both advocates for the parties pending the hearing and determination of the Appeal. The compliance period is fixed at 60 days failure to which the order will lapse.
14. The Application is hereby allowed with costs in the cause.
Determination
15. The Appellant’s Application by way of a Notice of Motion dated 29th April 2025 is allowed in the following terms;
(a) THAT there be a stay of execution of the Ruling entered against the Appellant herein on 3rd April, 2025, pending the hearing and determination of the Appeal herein. This is on condition that the Appellant deposits a sum of Kshs.3,264,830.92 in a joint interest earning account in the names of the Advocates for the parties within a period of Sixty (60) days from the date of this order. In default of compliance the order of stay granted herein shall lapse and stand vacated.
(b) THAT the costs of this application be in the cause.
16. It is so ordered.
DATED, SIGNED AND DELIVERED AT MILIMANI THIS 16TH DAY OF OCTOBER, 2025.
NJOROGE BENJAMIN K.
JUDGE
In the presence of;
Miss Arum for Appellant/Applicant
Miss Naomi Mutisya for the Respondent.
Mr. Peter Wabwire - Court Assistant.
'
1. The Applicant filed the Notice of Motion dated 29th April 2025 seeking orders that;
a) The court to order stay of execution of the ruling entered against the Appellant herein on 3rd April, 2025, pending the hearing and determination of the appeal herein.
b) Costs of this application be in the cause.
Background Facts
2. The Application was supported by the grounds on the face of it and by the Affidavit of Jacob Musyoka. He stated that the Applicants have filed an Appeal against the said Ruling and if stay of execution is not granted, the Appeal will be rendered nugatory and the Applicant will suffer substantial loss.
3. Further, the Respondent has issued a statutory notice for sale in execution of the orders issued on 3rd April, 2025, and unless the Court intervenes, the Appellant’s appeal, which has high chances of success, will be rendered nugatory. That as a consequence thereof, the Appellant will suffer substantial and irreparable loss.
4. In response to the Application, the Respondent filed grounds of Opposition dated 9th July 2025 on the following grounds;
(i) The Applicant''s Application is misconceived, mischievous, unmeritorious, frivolous, and vexatious.
(ii) The singular motive of the present Application is to stop the Decree Holder from enjoying the fruits of its judgment.
(iii) Pursuant to Order 42, rule 6(2) (b), one of the conditions for the grant of a stay pending Appeal is that the Applicant must make an offer for security. The Court will note that the Applicant has quite conveniently not made any offer to deposit the outstanding loan amount either in Court or in a joint interest-earning account in the name of the advocates, clearly showing that the Application is mischievous and brought in bad faith.
(iv) The Applicant has failed to demonstrate that it shall suffer substantial irreparable loss and damage if a stay of execution is not granted.
(v) It is abundantly clear that any discretion must be exercised in favour of the Respondent, and as such, the Notice of Motion Application dated 29th April 2025 should be dismissed with costs to the Respondent.
Issues for determination
5. The Court has considered the submissions by the parties and has drafted only one issue for determination
a) Whether an order of stay of execution ought to be granted.
Analysis
6. The power of the Court to stay the execution of the judgment/decree pending the determination of the appeal is guided by Order 42 Rule 6 (1) and (2) of the Civil Procedure Rules , which provides that:
(1) No appeal or second appeal shall operate as a stay of execution or proceedings under a decree or order appealed from except appeal case of 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.
7. The Court in the case of Muchiri v Rutere [2023] KEELC 22377 (KLR) held;
“Stay of execution pending appeal is a discretionary power bestowed upon this court by law. In Butt v Rent Restriction Tribunal (1982) KLR 417, the Court of Appeal gave guidance on how a court should exercise the said discretion and held that -;
a. The power of the court to grant or refuse an application for a stay of execution is discretionary power. The discretion should be exercised in such a way as not to prevent an appeal.
b. 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 that appeal court reserve the judge’s decision.
c. A Judge should not refuse a stay if there are good grounds for it granting it merely because in his opinion, a better remedy may become available to the applicant at the end of the proceedings.
d. The court in exercising its discretion whether to grant (or) refuse an application for stay will consider the special circumstances in this case were that there was a larger amount of rent in dispute and the appellant had an undoubted right of appeal.
e. the court in exercising its power 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 for costs as ordered will cause the order for stay of execution to lapse.”
8. On the issue of substantial loss, it was the Applicant’s submission that it has established beyond question that the intended sale of land is not a loss that can be compensated in damages; it is permanent dispossession. Once the auctioneer’s hammer falls, the Applicant will have been divested of its proprietary rights forever, regardless of the outcome of the Appeal.
9. While the Respondent took the position that the Applicant has failed to prove that it shall suffer substantial loss if the stay of execution order is not granted, the Court is satisfied that should the sale of the land be carried out, the Applicant will indeed suffer a substantial loss.
10. What about in determining whether not granting the order will occasion substantial loss to the Applicant? Substantial loss was explained in the case of JAMES WANGALWA & ANOTHER V AGNES NALIAKA CHESETO [2012] KEHC 1094 (KLR) , 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 ... 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.”
11. Was there a delay in filing the present Application? The Court notes that while the impugned Ruling was delivered on 3rd April 2025, the application was filed on 29th April 2025. Therefore, it cannot be said that there was an inordinate delay in filing the Application.
12. What of Security? On this, the Applicant expressed readiness to abide by the terms on security as may be directed by the Court. In contrast, the Respondent asserted that the Applicant having failed to demonstrate or offer security, the Application ought to be dismissed.
13. It is the Court’s considered view that the Applicant has demonstrated that it is ready to abide by the terms on security as may be directed by the Court. Consequently, the prayer for stay of execution is hereby allowed but on condition the Applicant deposits a half of the amount said to be in default in the sum of Ksh.6,529,661.84 (as per the Ruling dated 3rd April, 2025) which translates to a sum of Kshs.3,264,830.92. This amount will be deposited in a joint interest-earning account in the names of both advocates for the parties pending the hearing and determination of the Appeal. The compliance period is fixed at 60 days failure to which the order will lapse.
14. The Application is hereby allowed with costs in the cause.
Determination
15. The Appellant’s Application by way of a Notice of Motion dated 29th April 2025 is allowed in the following terms;
(a) THAT there be a stay of execution of the Ruling entered against the Appellant herein on 3rd April, 2025, pending the hearing and determination of the Appeal herein. This is on condition that the Appellant deposits a sum of Kshs.3,264,830.92 in a joint interest earning account in the names of the Advocates for the parties within a period of Sixty (60) days from the date of this order. In default of compliance the order of stay granted herein shall lapse and stand vacated.
(b) THAT the costs of this application be in the cause.
16. It is so ordered.
DATED, SIGNED AND DELIVERED AT MILIMANI THIS 16TH DAY OF OCTOBER, 2025.
NJOROGE BENJAMIN K.
JUDGE
In the presence of;
Miss Arum for Appellant/Applicant
Miss Naomi Mutisya for the Respondent.
Mr. Peter Wabwire - Court Assistant.
'