1. The Applicant’s Notice of Motion dated 28th August 2025 seeks stay of execution of the judgment delivered on 18th June 2025 in Keroka MCCC E188 of 2021, and stay of taxation of the party-and-party Bill of Costs, pending the hearing and determination of this appeal. The application is supported by affidavits sworn on behalf of the Applicant and is opposed through the Respondent’s Replying Affidavit and submissions.
2. The subordinate court entered judgment for the Respondent in the sum of KES. 203,650 together with costs. The Applicant has lodged an appeal challenging both liability and quantum, contending that the learned trial magistrate misdirected herself on the evidence and the applicable principles.
3. The principles governing an application for stay pending appeal are well settled under Order 42 Rule 6(2) of the Civil Procedure Rules. An applicant must demonstrate that substantial loss may be suffered unless stay is granted, that the application has been made without unreasonable delay, and that security has been provided.
4. On substantial loss, the Applicant submits that the Respondent’s means are unknown and that it risks recoverability of the decretal sum if execution proceeds. It relies on the Court of Appeal decision in National Industrial Credit Bank Ltd v Aquinas Francis Wasike & Another [2006] eKLR, where the Court held that once an applicant expresses a reasonable fear that the Respondent would be unable to repay the decretal sum, the evidential burden shifts to the respondent to show that he would, in fact, be able to repay.
5. The Applicant also invokes Kenya Shell Limited v Benjamin Karuga Kibiru & Another [1986] KLR 410, where the Court of Appeal emphasised that substantial loss in its various forms is the cornerstone of the jurisdiction to grant a stay and that it is this kind of loss—not the ordinary consequences of a money judgment that must be prevented.
6. In the present matter, although the Respondent asserts capacity to refund, she has provided no documentary proof such as bank statements, business records, or other evidence demonstrating her financial means. In keeping with the reasoning in National Industrial Credit Bank Ltd v Wasike (supra), the Respondent has not discharged the evidential burden that shifted to her. The Respondent relied on Masisi Mwita v Damaris Wanjiku Njeri [2016] eKLR, urging that substantial loss must be specifically demonstrated.
7. Having considered the parties' respective positions, I am satisfied that the Applicant has shown a real risk of recoverability. I therefore find that the Applicant has demonstrated substantial loss for purposes of Order 42 Rule 6(2)(a).
8. On delay, judgment was delivered on 18th June 2025 and this application was filed on 28th August 2025. Considering the explanation provided regarding extraction of proceedings and change of representation, I am satisfied that the delay is not unreasonable. The Court of Appeal in Vishram Ravji Halai v Thornton & Turpin (1963) Ltd [1990] KLR 365 held that what constitutes unreasonable delay must be evaluated on a case-by-case basis and that a reasonable explanation may justify the lapse of time.
9. On security, the Applicant has indicated willingness to comply with any conditions imposed by the Court. In monetary decrees, the usual and most appropriate form of security is the deposit of the decretal amount in Court.
10. I find that an order for deposit in Court is appropriate in the circumstances, consistent with the guidance in Butt v Rent Restriction Tribunal [1979] eKLR, in which the Court of Appeal emphasised that the purpose of security is to balance the interests of both parties.
11. With respect to stay of taxation, while taxation is ordinarily a separate statutory process, the Respondent relies on the principle that a successful litigant is entitled to the fruits of judgment. However, where execution of the principal monetary decree is stayed, permitting taxation to proceed in parallel may undermine the protective purpose of the stay. The Court notes the Respondent’s further reliance on Carter & Sons Ltd v Deposit Protection Fund Board & 2 Others (Civil Appeal No. 291 of 1997) for the principle that the Court must balance the rights of both parties when exercising discretion. Applying the same balancing exercise, I am persuaded that a stay of taxation is warranted so as to preserve the substratum of the appeal and avoid fragmented execution processes.
12. Having considered the application, the affidavits, submissions, and the authorities cited by the parties, and balancing the rights of both sides, I am satisfied that the Applicant has met the threshold under Order 42 Rule 6(2) of the Civil Procedure Rules.
13. In the end, the Applicant’s Notice of Motion dated 28th August 2025 is found to have merit and it is allowed in the following terms:
1) There shall be a stay of execution of the judgment and decree delivered on 18th June 2025 in Keroka MCCC E188 of 2021 pending the hearing and determination of this appeal.
2) The stay granted herein is conditional upon the Applicant depositing the entire decretal in Court within seven (7) days from the date of this ruling.
3) There shall be a stay of taxation of the party-and-party Bill of Costs arising from the said judgment pending the hearing and determination of this appeal.
4) In default of compliance with Order 2 above, the stay orders shall lapse automatically without further order of the Court.
5) The Applicant shall file and serve the Record of Appeal within thirty (30) days from the date of this ruling.
6) Costs of the Motion shall abide the outcome of the appeal.
7) Mention before the Deputy Registrar on 05th March 2026 to confirm filing and service of the record of appeal and submissions
2. The subordinate court entered judgment for the Respondent in the sum of KES. 203,650 together with costs. The Applicant has lodged an appeal challenging both liability and quantum, contending that the learned trial magistrate misdirected herself on the evidence and the applicable principles.
3. The principles governing an application for stay pending appeal are well settled under Order 42 Rule 6(2) of the Civil Procedure Rules. An applicant must demonstrate that substantial loss may be suffered unless stay is granted, that the application has been made without unreasonable delay, and that security has been provided.
4. On substantial loss, the Applicant submits that the Respondent’s means are unknown and that it risks recoverability of the decretal sum if execution proceeds. It relies on the Court of Appeal decision in National Industrial Credit Bank Ltd v Aquinas Francis Wasike & Another [2006] eKLR, where the Court held that once an applicant expresses a reasonable fear that the Respondent would be unable to repay the decretal sum, the evidential burden shifts to the respondent to show that he would, in fact, be able to repay.
5. The Applicant also invokes Kenya Shell Limited v Benjamin Karuga Kibiru & Another [1986] KLR 410, where the Court of Appeal emphasised that substantial loss in its various forms is the cornerstone of the jurisdiction to grant a stay and that it is this kind of loss—not the ordinary consequences of a money judgment that must be prevented.
6. In the present matter, although the Respondent asserts capacity to refund, she has provided no documentary proof such as bank statements, business records, or other evidence demonstrating her financial means. In keeping with the reasoning in National Industrial Credit Bank Ltd v Wasike (supra), the Respondent has not discharged the evidential burden that shifted to her. The Respondent relied on Masisi Mwita v Damaris Wanjiku Njeri [2016] eKLR, urging that substantial loss must be specifically demonstrated.
7. Having considered the parties' respective positions, I am satisfied that the Applicant has shown a real risk of recoverability. I therefore find that the Applicant has demonstrated substantial loss for purposes of Order 42 Rule 6(2)(a).
8. On delay, judgment was delivered on 18th June 2025 and this application was filed on 28th August 2025. Considering the explanation provided regarding extraction of proceedings and change of representation, I am satisfied that the delay is not unreasonable. The Court of Appeal in Vishram Ravji Halai v Thornton & Turpin (1963) Ltd [1990] KLR 365 held that what constitutes unreasonable delay must be evaluated on a case-by-case basis and that a reasonable explanation may justify the lapse of time.
9. On security, the Applicant has indicated willingness to comply with any conditions imposed by the Court. In monetary decrees, the usual and most appropriate form of security is the deposit of the decretal amount in Court.
10. I find that an order for deposit in Court is appropriate in the circumstances, consistent with the guidance in Butt v Rent Restriction Tribunal [1979] eKLR, in which the Court of Appeal emphasised that the purpose of security is to balance the interests of both parties.
11. With respect to stay of taxation, while taxation is ordinarily a separate statutory process, the Respondent relies on the principle that a successful litigant is entitled to the fruits of judgment. However, where execution of the principal monetary decree is stayed, permitting taxation to proceed in parallel may undermine the protective purpose of the stay. The Court notes the Respondent’s further reliance on Carter & Sons Ltd v Deposit Protection Fund Board & 2 Others (Civil Appeal No. 291 of 1997) for the principle that the Court must balance the rights of both parties when exercising discretion. Applying the same balancing exercise, I am persuaded that a stay of taxation is warranted so as to preserve the substratum of the appeal and avoid fragmented execution processes.
12. Having considered the application, the affidavits, submissions, and the authorities cited by the parties, and balancing the rights of both sides, I am satisfied that the Applicant has met the threshold under Order 42 Rule 6(2) of the Civil Procedure Rules.
13. In the end, the Applicant’s Notice of Motion dated 28th August 2025 is found to have merit and it is allowed in the following terms:
1) There shall be a stay of execution of the judgment and decree delivered on 18th June 2025 in Keroka MCCC E188 of 2021 pending the hearing and determination of this appeal.
2) The stay granted herein is conditional upon the Applicant depositing the entire decretal in Court within seven (7) days from the date of this ruling.
3) There shall be a stay of taxation of the party-and-party Bill of Costs arising from the said judgment pending the hearing and determination of this appeal.
4) In default of compliance with Order 2 above, the stay orders shall lapse automatically without further order of the Court.
5) The Applicant shall file and serve the Record of Appeal within thirty (30) days from the date of this ruling.
6) Costs of the Motion shall abide the outcome of the appeal.
7) Mention before the Deputy Registrar on 05th March 2026 to confirm filing and service of the record of appeal and submissions