Introduction & Background
1. The Applicants, through the Notice of Motion dated 6 th November 2025 are seeking a stay of seeking a stay of execution of multiple judgments from the Magistrate's Court in Machakos. These judgments arose from ten separate civil suits filed by the 3 rd to 10 th Respondents who were injured in a road accident on 26 th May 2018, involving motor vehicle registration number KBA ***K registered to the 1 st Applicant.
2. Through grounds set out on its face and the supporting affidavit of Joshua Ndeke Lovoti sworn on 5 th November 2025, the Applicants contend that they are being wrongly held vicariously liable for the accident and they maintain that the driver of the vehicle, the 1 st Respondent, was not their employee and had no authority to operate the vehicle on their behalf. That the vehicle was given to the 2 nd Respondent as an employment benefit and the central question of vicarious liability is currently being disputed in a new suit, Machakos Civil Suit No. E351 of 2025 , filed by the 1 st and 2 nd Respondents against the Applicants and that this suit seeks to compel the Applicants to settle all claims from the accident.
3. The Applicants claim that judgments were entered against them without being given a chance to file a defence and that in at least one case, the judgment was based on a consent between the 10 th Respondent and the 1 st Respondent, where the 1 st Respondent agreed to be 100% liable. The Applicant depones that the 3 rd Respondent has already obtained warrants of attachment and issued a Proclamation Notice against the 1 st Applicant's assets and the other Respondents are also expected to commence execution proceedings. The Applicants aver that if execution proceeds, they will suffer irreparable loss by being forced to pay liabilities they are not legally obligated to satisfy.
4. The Applicants claim to have a strong defence in the new suit, as no employer-employee relationship existed between them and the 1 st Respondent and they thus seek a stay of execution of the judgments pending the hearing and determination of this suit on vicarious liability.
5. In response, the 4 th , 5 th , 6 th , 7 th , 8 th and 9 th Respondents (“the Respondents”) have filed the replying affidavit sworn on 3 rd February 2026(erroneously dated 2025) by the 4 th Respondent. There was no response from the 1 st , 2 nd , 3 rd and 10 th Respondents. The Respondents depone that the Applicants' application is frivolous, vexatious, bad in law and an abuse of the court's process and they contend that the Applicants have had every opportunity to challenge the liability and have been unsuccessful.
6. They state that the judgment in the main suit, Machakos Civil Suit No. 27 of 2019 was delivered on 7 th October 2020 which is over five years ago and that this matter has been substantially litigated. That the 1 st Applicant and the 1 st Respondent filed appeals against the judgment, which were dismissed by this court on 19 th December 2024 and 9 th October 2025 respectively and these decisions have not been appealed or set aside. The Respondents claim that no execution has actually been issued, making the application for a stay of execution premature and baseless and they believe the 1 st Applicant and the 1 st Respondent are colluding to avoid satisfying the judgment debt.
7. The Respondents aver that they are not a party to the new suit Machakos Civil Suit No. E351 of 2025 , which is the basis for the Applicants' application and therefore, that suit does not affect their right to enjoy their lawfully obtained judgment. In the alternative, the Respondents propose that if the court is inclined to grant the stay, the Applicants should be ordered to release half of the decretal sum plus special damages and costs to the Respondents' advocates as a condition for the stay. For these reasons, the Respondents urge the court to dismiss the application with costs.
8. The parties have also supplemented their arguments by filing written submissions which I have considered and I will be making relevant references to the same in my analysis and determination below.
Analysis and Determination
9. The singular issue for determination is whether the Applicants have established a valid basis for this court to grant an order for stay of execution of the decrees by the Respondents pending the determination of Machakos Civil Suit No. E351 of 2025 . I note that the Applicants have relied on this court’s (Ndun’gu J.,) decision in Chira v Africa Merchant Assurance Co Ltd & 3 others [2024] KEHC 6369 (KLR) where it was held as follows:
17. The principle guiding the grant of stay of execution pending appeal are provided for under Order 42 Rule 6(2) of Civil Procedure Rules which provides:
“ No order for stay of execution shall be made under sub-rule (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.”
18. Therefore, an Applicant for stay of execution of a decree or order pending appeal is obliged to satisfy the conditions set out in Order 42 Rule 6(2), aforementioned; namely (a) that substantial loss may result to the Applicant unless the order is made; (b) that the application has been made without unreasonable delay; and (c) that such security as the court orders for the due performance of such decree or order as may ultimately be binding on the Applicant has been given.
19. I hasten to add that in an application for stay pending the determination of a declaratory suit on the legal obligation of an insurer to compensate 3rd parties, an order of stay can be issued with little variation of the requirements under Order 42 Rule 6(2) of Civil Procedure Rules.
20. This is so, in my view, as an insured who has complied with the terms of an insurance contract between him and the insurer ought to have the protection of the law, and for that matter, the court, albeit for a determined period, to seek to enforce the contract insulating him from third party claims through a declaratory suit. Anything to the contrary would be prejudicial and cause an injustice to an insured who in the first place entered into a contract of insurance to avoid such liability.
21. I would associate myself with the sentiments of Odunga J (as he then was) in Ndonye v Invesco Assurance Co. Ltd (Civil Suit 23 of 2021) [2022] KEHC 416 (KLR) (5 May 2022) (Ruling) Neutral citation: [2022] KEHC 416 (KLR) where he stated;
“However, one cannot lose sight of the fact that the Applicant is in effect seeking that the Defendants
Pays the Interested Party the sum due to the Interested Party from the Applicant. Unless some measure of protection is given to the Applicant, his suit as presently framed may well be an academic exercise.
To that limited extent I agree with the reasoning in the case of Charles Makenzi Wambua vs. Africa Merchant Assurance Co. Ltd & Another [2014] eKLR where the court stated as follows:
“ However, one cannot lose sight of the fact that the Applicant is in eect seeking that the Defendants pays the Interested Party the sum due to the Interested Party from the Applicant. Unless some measure of protection is given to the Applicant, his suit as presently framed may well be an academic exercise. kenyalaw.org/caselaw/cases/view/233297/ 5 To that limited extent I agree with the reasoning in the case of Charles Makenzi Wambua vs. Africa Merchant Assurance Co. Ltd & Another [2014] eKLR where the court stated as follows: “Secondly, that unless such stay is granted, the intended suit shall be rendered nugatory. In my analysis, I have found that if stay is not granted, the court will be assisting the defendant to avoid a contract whose terms are dictated by statute, to compensate the interested parties herein then revert to the plaintiff to recoup any extra sums that they may have paid to third(interested) parties…”
22. While the grant of stay pending a declaratory suit is special and may not necessary be tied to the conditions under Order 42(2)(6), the conditions are still relevant. Courts have variously expressed themselves in regard to the criteria for the grant of stay pending appeal. In RWW vs EKW [2019] eKLR, considered the purpose of a stay of execution order pending appeal, in the following words;
“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 weigh 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. Indeed, to grant or refuse an application for stay of execution pending appeal is discretionary. The court when granting the stay however, must balance the interests of the Appellant with those of the Respondent.”
23.As to what substantial loss is, it was observed in James Wangalwa & Another vs Agnes Naliaka Chesoto [2012] eKLR 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 it the case here, does not itself amount to substantial loss under Order 42 Rule 6 of the Civil Procedure Rules. This is so because execution is a lawful process. The Applicant must establish other factors which shown 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 issues 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.”
24.Musinga J in Daniel Chebutul Rotich & 2 Others vs Emirates Airlines Civil Case No. 368 of 2001 also stated that;
“It is not enough for an Applicant to merely state that it is likely to suffer substantial loss, it must make effort to demonstrate how the same is likely to occur. Disruption of business and loss of reputation can only be suffered if stay of execution was refused and the Applicant refused to pay or became unable to pay and auctioneers had to move in to carry out execution. “Substantial loss” is a relative term and more often than not can be assessed by the totality of the consequences which an Applicant is likely to suffer if stay of execution is not granted and the Applicant is therefore forced to pay the decretal sum.”
10. From the aforementioned decision, it is clear that even when a declaratory suit is pending, the conditions for granting a stay of execution under Order 42 Rule 6 of the Civil Procedure Rules remain relevant. The Applicants must demonstrate that they will suffer substantial loss if the order is not granted, that the application has been made without unreasonable delay; and that they are willing to provide such security as the court may order for the due performance of the decree. I am inclined to agree with the Respondents that the judgments in the test suit and the appeals have already been finalized by this court which dismissed appeals by both the 1 st Applicant and the 1 st Respondent on 19 th December 2024 and 9 th October 2025. Therefore, this is not a case where liability is still in doubt. Further, the Respondents are not parties to the new suit and they cannot be penalized for the Applicants' dispute with the 1 st and 2 nd Respondents.
11. Whereas the Applicants have also relied on the case of Apollo Ogunda v Africa Merchant Assurance Co. Ltd & 4 others [2015] KEHC 71 (KLR) in seeking the stay, I note that in that case, the court granted a stay because the applicant had a valid insurance policy, the insurer had repudiated its obligation, execution had already commenced and without a stay, the declaratory suit would be rendered nugatory. Unlike Apollo Ogunda(supra) and Chira (supra) , this is not an insurance dispute where an insurer has repudiated a policy. It is a vicarious liability dispute between the Applicants and the 1 st and 2 nd Respondents, the key difference being that in Apollo Ogunda(supra) , the insurer had a statutory obligation to satisfy the decree but in this case, the Applicants are arguing that they are not liable at all. The Applicants are not seeking to enforce a contract against a third party but seeking to avoid liability altogether after final judgments have been entered which makes their case for stay even weaker.
12. In any event, in balancing the interests of the parties, I find that the Applicants have the right to have their new suit determined without being financially ruined and that the Respondents have the right to enjoy the fruits of their lawful judgments after 8 years of litigation. In my view, the balance tips slightly in favor of the Respondents unless the Applicants provide adequate security to protect the Respondents' interests. The Applicants submitted that they are willing to provide security for costs for the satisfaction of the decrees against them based on this court’s discretion. I find that the Respondents’ proposal of the Applicants depositing half of the estimated total liability, that is, Kshs. 3,500,000.00 is reasonable and appropriate in the circumstances.
Disposition
13. In the foregoing, the Applicants’ application for stay is allowed conditionally on terms that the Applicants shall deposit Kshs. 3,500,000.00 in an interest-earning account in the joint names of the advocates for the Applicants and the Respondents within 60 days of this ruling. The stay shall remain in force pending the hearing and determination of Machakos Civil Suit No.E351 of 2025 before the subordinate court. In default of payment, the stay shall lapse automatically. The Applicants shall prosecute the new suit within 12 months, failing which the stay shall also lapse. Costs of the application shall be in the cause.
DATED SIGNED AND DELIVERED virtually this 3 rd DAY OF SEPTEMBER
2026
............................................................................
J W W MONGARE
JUDGE
IN THE PRESENCE OF
1. Ms. Mwaura for the Applicants
2. Ms. Gicharu for the 4 th – 9 th Respondents
3. Abdisalan- Court Assistant
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1. The Applicants, through the Notice of Motion dated 6 th November 2025 are seeking a stay of seeking a stay of execution of multiple judgments from the Magistrate's Court in Machakos. These judgments arose from ten separate civil suits filed by the 3 rd to 10 th Respondents who were injured in a road accident on 26 th May 2018, involving motor vehicle registration number KBA ***K registered to the 1 st Applicant.
2. Through grounds set out on its face and the supporting affidavit of Joshua Ndeke Lovoti sworn on 5 th November 2025, the Applicants contend that they are being wrongly held vicariously liable for the accident and they maintain that the driver of the vehicle, the 1 st Respondent, was not their employee and had no authority to operate the vehicle on their behalf. That the vehicle was given to the 2 nd Respondent as an employment benefit and the central question of vicarious liability is currently being disputed in a new suit, Machakos Civil Suit No. E351 of 2025 , filed by the 1 st and 2 nd Respondents against the Applicants and that this suit seeks to compel the Applicants to settle all claims from the accident.
3. The Applicants claim that judgments were entered against them without being given a chance to file a defence and that in at least one case, the judgment was based on a consent between the 10 th Respondent and the 1 st Respondent, where the 1 st Respondent agreed to be 100% liable. The Applicant depones that the 3 rd Respondent has already obtained warrants of attachment and issued a Proclamation Notice against the 1 st Applicant's assets and the other Respondents are also expected to commence execution proceedings. The Applicants aver that if execution proceeds, they will suffer irreparable loss by being forced to pay liabilities they are not legally obligated to satisfy.
4. The Applicants claim to have a strong defence in the new suit, as no employer-employee relationship existed between them and the 1 st Respondent and they thus seek a stay of execution of the judgments pending the hearing and determination of this suit on vicarious liability.
5. In response, the 4 th , 5 th , 6 th , 7 th , 8 th and 9 th Respondents (“the Respondents”) have filed the replying affidavit sworn on 3 rd February 2026(erroneously dated 2025) by the 4 th Respondent. There was no response from the 1 st , 2 nd , 3 rd and 10 th Respondents. The Respondents depone that the Applicants' application is frivolous, vexatious, bad in law and an abuse of the court's process and they contend that the Applicants have had every opportunity to challenge the liability and have been unsuccessful.
6. They state that the judgment in the main suit, Machakos Civil Suit No. 27 of 2019 was delivered on 7 th October 2020 which is over five years ago and that this matter has been substantially litigated. That the 1 st Applicant and the 1 st Respondent filed appeals against the judgment, which were dismissed by this court on 19 th December 2024 and 9 th October 2025 respectively and these decisions have not been appealed or set aside. The Respondents claim that no execution has actually been issued, making the application for a stay of execution premature and baseless and they believe the 1 st Applicant and the 1 st Respondent are colluding to avoid satisfying the judgment debt.
7. The Respondents aver that they are not a party to the new suit Machakos Civil Suit No. E351 of 2025 , which is the basis for the Applicants' application and therefore, that suit does not affect their right to enjoy their lawfully obtained judgment. In the alternative, the Respondents propose that if the court is inclined to grant the stay, the Applicants should be ordered to release half of the decretal sum plus special damages and costs to the Respondents' advocates as a condition for the stay. For these reasons, the Respondents urge the court to dismiss the application with costs.
8. The parties have also supplemented their arguments by filing written submissions which I have considered and I will be making relevant references to the same in my analysis and determination below.
Analysis and Determination
9. The singular issue for determination is whether the Applicants have established a valid basis for this court to grant an order for stay of execution of the decrees by the Respondents pending the determination of Machakos Civil Suit No. E351 of 2025 . I note that the Applicants have relied on this court’s (Ndun’gu J.,) decision in Chira v Africa Merchant Assurance Co Ltd & 3 others [2024] KEHC 6369 (KLR) where it was held as follows:
17. The principle guiding the grant of stay of execution pending appeal are provided for under Order 42 Rule 6(2) of Civil Procedure Rules which provides:
“ No order for stay of execution shall be made under sub-rule (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.”
18. Therefore, an Applicant for stay of execution of a decree or order pending appeal is obliged to satisfy the conditions set out in Order 42 Rule 6(2), aforementioned; namely (a) that substantial loss may result to the Applicant unless the order is made; (b) that the application has been made without unreasonable delay; and (c) that such security as the court orders for the due performance of such decree or order as may ultimately be binding on the Applicant has been given.
19. I hasten to add that in an application for stay pending the determination of a declaratory suit on the legal obligation of an insurer to compensate 3rd parties, an order of stay can be issued with little variation of the requirements under Order 42 Rule 6(2) of Civil Procedure Rules.
20. This is so, in my view, as an insured who has complied with the terms of an insurance contract between him and the insurer ought to have the protection of the law, and for that matter, the court, albeit for a determined period, to seek to enforce the contract insulating him from third party claims through a declaratory suit. Anything to the contrary would be prejudicial and cause an injustice to an insured who in the first place entered into a contract of insurance to avoid such liability.
21. I would associate myself with the sentiments of Odunga J (as he then was) in Ndonye v Invesco Assurance Co. Ltd (Civil Suit 23 of 2021) [2022] KEHC 416 (KLR) (5 May 2022) (Ruling) Neutral citation: [2022] KEHC 416 (KLR) where he stated;
“However, one cannot lose sight of the fact that the Applicant is in effect seeking that the Defendants
Pays the Interested Party the sum due to the Interested Party from the Applicant. Unless some measure of protection is given to the Applicant, his suit as presently framed may well be an academic exercise.
To that limited extent I agree with the reasoning in the case of Charles Makenzi Wambua vs. Africa Merchant Assurance Co. Ltd & Another [2014] eKLR where the court stated as follows:
“ However, one cannot lose sight of the fact that the Applicant is in eect seeking that the Defendants pays the Interested Party the sum due to the Interested Party from the Applicant. Unless some measure of protection is given to the Applicant, his suit as presently framed may well be an academic exercise. kenyalaw.org/caselaw/cases/view/233297/ 5 To that limited extent I agree with the reasoning in the case of Charles Makenzi Wambua vs. Africa Merchant Assurance Co. Ltd & Another [2014] eKLR where the court stated as follows: “Secondly, that unless such stay is granted, the intended suit shall be rendered nugatory. In my analysis, I have found that if stay is not granted, the court will be assisting the defendant to avoid a contract whose terms are dictated by statute, to compensate the interested parties herein then revert to the plaintiff to recoup any extra sums that they may have paid to third(interested) parties…”
22. While the grant of stay pending a declaratory suit is special and may not necessary be tied to the conditions under Order 42(2)(6), the conditions are still relevant. Courts have variously expressed themselves in regard to the criteria for the grant of stay pending appeal. In RWW vs EKW [2019] eKLR, considered the purpose of a stay of execution order pending appeal, in the following words;
“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 weigh 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. Indeed, to grant or refuse an application for stay of execution pending appeal is discretionary. The court when granting the stay however, must balance the interests of the Appellant with those of the Respondent.”
23.As to what substantial loss is, it was observed in James Wangalwa & Another vs Agnes Naliaka Chesoto [2012] eKLR 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 it the case here, does not itself amount to substantial loss under Order 42 Rule 6 of the Civil Procedure Rules. This is so because execution is a lawful process. The Applicant must establish other factors which shown 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 issues 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.”
24.Musinga J in Daniel Chebutul Rotich & 2 Others vs Emirates Airlines Civil Case No. 368 of 2001 also stated that;
“It is not enough for an Applicant to merely state that it is likely to suffer substantial loss, it must make effort to demonstrate how the same is likely to occur. Disruption of business and loss of reputation can only be suffered if stay of execution was refused and the Applicant refused to pay or became unable to pay and auctioneers had to move in to carry out execution. “Substantial loss” is a relative term and more often than not can be assessed by the totality of the consequences which an Applicant is likely to suffer if stay of execution is not granted and the Applicant is therefore forced to pay the decretal sum.”
10. From the aforementioned decision, it is clear that even when a declaratory suit is pending, the conditions for granting a stay of execution under Order 42 Rule 6 of the Civil Procedure Rules remain relevant. The Applicants must demonstrate that they will suffer substantial loss if the order is not granted, that the application has been made without unreasonable delay; and that they are willing to provide such security as the court may order for the due performance of the decree. I am inclined to agree with the Respondents that the judgments in the test suit and the appeals have already been finalized by this court which dismissed appeals by both the 1 st Applicant and the 1 st Respondent on 19 th December 2024 and 9 th October 2025. Therefore, this is not a case where liability is still in doubt. Further, the Respondents are not parties to the new suit and they cannot be penalized for the Applicants' dispute with the 1 st and 2 nd Respondents.
11. Whereas the Applicants have also relied on the case of Apollo Ogunda v Africa Merchant Assurance Co. Ltd & 4 others [2015] KEHC 71 (KLR) in seeking the stay, I note that in that case, the court granted a stay because the applicant had a valid insurance policy, the insurer had repudiated its obligation, execution had already commenced and without a stay, the declaratory suit would be rendered nugatory. Unlike Apollo Ogunda(supra) and Chira (supra) , this is not an insurance dispute where an insurer has repudiated a policy. It is a vicarious liability dispute between the Applicants and the 1 st and 2 nd Respondents, the key difference being that in Apollo Ogunda(supra) , the insurer had a statutory obligation to satisfy the decree but in this case, the Applicants are arguing that they are not liable at all. The Applicants are not seeking to enforce a contract against a third party but seeking to avoid liability altogether after final judgments have been entered which makes their case for stay even weaker.
12. In any event, in balancing the interests of the parties, I find that the Applicants have the right to have their new suit determined without being financially ruined and that the Respondents have the right to enjoy the fruits of their lawful judgments after 8 years of litigation. In my view, the balance tips slightly in favor of the Respondents unless the Applicants provide adequate security to protect the Respondents' interests. The Applicants submitted that they are willing to provide security for costs for the satisfaction of the decrees against them based on this court’s discretion. I find that the Respondents’ proposal of the Applicants depositing half of the estimated total liability, that is, Kshs. 3,500,000.00 is reasonable and appropriate in the circumstances.
Disposition
13. In the foregoing, the Applicants’ application for stay is allowed conditionally on terms that the Applicants shall deposit Kshs. 3,500,000.00 in an interest-earning account in the joint names of the advocates for the Applicants and the Respondents within 60 days of this ruling. The stay shall remain in force pending the hearing and determination of Machakos Civil Suit No.E351 of 2025 before the subordinate court. In default of payment, the stay shall lapse automatically. The Applicants shall prosecute the new suit within 12 months, failing which the stay shall also lapse. Costs of the application shall be in the cause.
DATED SIGNED AND DELIVERED virtually this 3 rd DAY OF SEPTEMBER
2026
............................................................................
J W W MONGARE
JUDGE
IN THE PRESENCE OF
1. Ms. Mwaura for the Applicants
2. Ms. Gicharu for the 4 th – 9 th Respondents
3. Abdisalan- Court Assistant
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