'1. Before me is a notice of motion dated 9.10.24 brought under Order 22 Rule 22 and Order 51 of the Civil Procedure Rules seeking orders that:
a) Spent.
b) Spent
c) There be stay of execution of the Judgement dated 28.9.24 in Ogembo MCCC E127 of 2023 pending the hearing and determination of Kisii High Court Appeal NO. E182 of 2024.
d) The cost of this application be in the cause.
2. The application is premised on the grounds that:
a) The judgement was delivered on the 28/09/2024. The appellants being aggrieved with the said judgement opted to file an appeal that is pending at the Kisii High Court being HCCA E182 of 2024.
b) The resident is likely to execute the said judgment and this will render his appeal nugatory and he will suffer substantial loss
c) The respondent may issue a warrant of arrest yet the appellants have already appealed the decision rendered on the 27/09/2024 and if the appeal is successful, the appellants will be highly prejudiced.
d) The appellant prays that the N.T.S.C issued on 5th February 2025 in Ogembo CMCC NO. E127 of 2023 be stayed pending the hearing and determination of Kisii HCCA E182 of 2024.
e) No prejudice will be occasioned to the respondent in anyway if the orders sought are granted.
3. This application was further supported by the supporting affidavit of Jared Ombati, which avers that the appellants will suffer substantial loss if a stay of the N.T.S.C issued against them is not granted, pending the hearing and determination of Kisii HCCA E182 OF 2024.
4. The respondent in his replying affidavit, contends that this application is an abuse of the court process and is scandalous as the application filled herein is similar to that dated 9/10/2024 annexed as “LAA 1”. He further contends that the appellants and their counsel have mischievously sneaked this application and obtained interim orders to forestall the N.T.S.C process in the sub-ordinate court. He prayed that this Honorable court should not condone and entertain the application and should strike out both the application and the interim orders dated 12/02/2025.
APPELLANT’S SUBMISSIONS
5. They submitted that they should be granted a stay of execution pursuant to Order 42 rule 6(2) of the Civil Procedure Rules, proving that they stand to suffer substantial loss of over Ksh. 3,229,765.10/= as well as costs and interest if stay of execution is not granted. They further averred that the respondent has not demonstrated that he is able to refund the sum if the appeal succeeds. They contended that there has been no inordinate delay in bringing the appeal as the judgement and decree being appealed against was delivered on the 27/09/2024 and the Memorandum of Appeal filed eight days later on the 9/10/2024. They further submitted that the respondent should be found to be in contempt of court for having caused the issuance of a warrant of arrest against the second appellant while there were existing interim orders of stay of the notice to show cause.
RESPONDENT SUBMISSIONS
6. The respondent submits that the court should down its tools as the application will be a waste of it’s valuable judicial time because this application has been overtaken by events as the decree in the sub-ordinate court was executed on 6/3/2025 when one of the appellant was arrested and committed to a civil jail for a term of 6 months at GK Prison.
7. The respondent calls for dismissal of the application on the account that in the entire application, the appellants have not offered any security for the due satisfaction of the decree in the event of this appeal failing. He contends that it is a mandatory requirement under Order 42 of the Civil Procedure Rules.
ISSUES FOR DETERMINATION
8. I have carefully considered the application and submissions , the issue arising for determination is :
a) Whether the application meets the threshold for grant of stay pending appeal under Order 42 of the civil procedure rules .
9. Order 42 rule 6(2) of the Civil Procedure Rules outlines the principles guiding the grant of a stay of execution pending appeal. It states that:
(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.
Regarding the first principle of substantial loss, it was observed in 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. This is what substantial loss would entail, a question that was aptly discussed in the case of Silverstein N. Chesoni [2002] 1KLR 867, and also in the case of Mukuma V Abuoga quoted above. The last case, referring to the exercise of discretion by the High Court and the Court of Appeal in the granting stay of execution, under Order 42 of the CPR and Rule 5(2) (b) of the Court of Appeal Rules, respectively, emphasized the centrality of substantial loss thus:
“…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.”
9. The appellant averred that they stand to suffer substantial loss of over ksh. 3,229,765.10/= as well as costs and interest if stay of execution is not granted. They further averred that the respondent has not demonstrated that he is able to refund the sum if the appeal succeeds. In the case of RWW v EKW [2019] KEHC 6523 (KLR), the court expressed itself regarding the purpose of a stay of execution order pending appeal, stating that:
“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.”
10. The applicant says that the respondent has already taken out a notice to show cause why he should not be committed to civil jail against him and so he will suffer substantial loss unless stay of execution is granted and that his appeal will be rendered nugatory . On 19.3.25 this court was informed that the applicant has been arrested and committed to civil jail for 6 months on 6.3.25 I noted that on 26.2.25 when the matter came up for directions, the interim orders were not extended . The appellants have filed an appeal which is pending hearing in this court. The applicant has a right of appeal and the respondent is also entitled to enjoy the fruits of his judgment . The court has a duty to balance the two rights of each of the parties. The decretal sum is colossal and the respondent dues not say whether he will be able to refund the same if the same is paid to him . If the stay of execution is not granted, the appeal may be rendered nugatory .
11. On security , the appellant has not offered any security as required under Order 42 Rule 6 (b) of the civil procedure rules .The respondent raised this issue and submitted that the applicant has not satisfied the conditions for grant of stay of execution . The decision on whether to grant stay of execution pending appeal is discretionary but the same must be exercised judiciously. This is a money decree and it is important that the applicant deposits security for due performance as a mandatory requirement by the law . In the interest of Justice, I order that the applicants deposit half of the decretal sum in court as a condition for grant of stay pending appeal .
Whether the court cannot consider issues which were not pleaded .
12. Both the appellant and respondent in their submissions, touch on issues that were not pleaded in their application . . The appellants also submitted that the respondent should be found in contempt of court for obtaining a notice to show cause and warrant of arrest against the appellants amidst the existence of interim orders for stay of execution and N.T.S.C The respondent also submitted that the applicant filed a similar application dated 10.2.25
13. In the case of World Explorers Safaris Limited v Cosmopolitan Travel Limited & another [2021] KEHC 4130 (KLR), it was stated that:
“The issues in civil cases should be raised on the pleadings and if an issue arises which does not appear from the pleadings in their original form an appropriate amendment should be sought. Parties should not be unduly encouraged to rely, in the hope, perhaps, of obtaining some tactical advantage, to treat un-pleaded issues as having been fully investigated. The need for pleadings to be precise cannot be doubted. In M N M vs. D N M K & 13 Others, it was held that: -
“Decisions abound from this Court that unequivocally declaim the power of a court to determine issues which the parties have not raised in their pleadings or otherwise by consent allowed the court to determine. For example in Chalicha FCS Ltd v. Odhiambo & 9 Others [1987] KLR 182, the Court held that:
“Cases must be decided on the issues on the record. The court has no power to make an order, unless by consent, which is outside the pleadings. In this instance, the issues raised by the Judge and the order thereon, was a nullity.”
Later in Kenya Commercial Bank Ltd vs. Sheikh Osman Mohammed, CA No. 179 of 2010 the Court expressed itself thus:
“It is not the function of a court in civil litigation to speculate or surmise as to the nature of the plaintiff’s claim. Pleadings must be deployed to serve their function, namely to inform the other party, and the court, with sufficient clarity what their case is so that the other party may have a fair opportunity to meet that case and more importantly, so that the issues for determination by the court are clear.”
A court may validly determine an unpleaded issue where evidence is led by the parties and from the course followed at trial it appears that the unpleaded issue has been left to the court to decide (See Odd Jobs v. Mubea [1970] EA 476). However, that was clearly not the case in this appeal.”
14. It is trite law that parties are generally bound by their pleadings unless pleadings are amended during the hearing of a case. This is as was established in the case of GALAXY PAINTS COMPANY LTD v FALCON GUARDS LTD [2000] KECA 215 (KLR), where it was stated:
“It is trite law, and the provisions of O.XIV of the Civil Procedure Rules, are clear that issues for determination in a suit generally flow from the pleadings, and unless pleadings are amended in accordance with the provisions of the Civil Procedure Rules, the trial court, by dint of the provisions of O.XX rule 4 of the aforesaid rules, may only pronounce judgment on the issues arising from the pleadings or such issue as the parties have framed for the court''s determination.
In Gandy v. Caspair [1956]EACA 139 it was held that unless the pleadings are amended, parties must be confined to their pleadings. Otherwise, to decide against a party on matters which do not come within the issues arising from the dispute as pleaded clearly amounts to an error on the face of the record. And in Fernandes v. People Newspapers Ltd [1972] EA 63 Law Ag V.P. said:
"A civil case is decided on issues arising out of the pleadings. No allegation of negligence against the appellant has ever been made, and it was not open to the court to find negligence on his part."
15. There is a laid down procedure of dealing contempt of court. The parties are at liberty to move the court for contempt of court if they so wish .
16. I proceed to allow the application dated on 9.10.24 and I proceed to issue the following orders :
a. There be stay of execution of the Judgement dated 28.9.24 in Ogembo MCCC E127 of 2023 pending the hearing and determination of Kisii High Court Appeal NO. E182 of 2024 on condition that the applicants deposit half of the decretal sum in court within 30 days from today.
b. Costs to the respondent.
c. Mention on 1.12.25 before the Deputy Registrar for directions.
T.A ODERA
JUDGE
16.10.25
DELIVERED VIA CTS ON THIS 16TH DAY OF OCTOBER 20225
'
a) Spent.
b) Spent
c) There be stay of execution of the Judgement dated 28.9.24 in Ogembo MCCC E127 of 2023 pending the hearing and determination of Kisii High Court Appeal NO. E182 of 2024.
d) The cost of this application be in the cause.
2. The application is premised on the grounds that:
a) The judgement was delivered on the 28/09/2024. The appellants being aggrieved with the said judgement opted to file an appeal that is pending at the Kisii High Court being HCCA E182 of 2024.
b) The resident is likely to execute the said judgment and this will render his appeal nugatory and he will suffer substantial loss
c) The respondent may issue a warrant of arrest yet the appellants have already appealed the decision rendered on the 27/09/2024 and if the appeal is successful, the appellants will be highly prejudiced.
d) The appellant prays that the N.T.S.C issued on 5th February 2025 in Ogembo CMCC NO. E127 of 2023 be stayed pending the hearing and determination of Kisii HCCA E182 of 2024.
e) No prejudice will be occasioned to the respondent in anyway if the orders sought are granted.
3. This application was further supported by the supporting affidavit of Jared Ombati, which avers that the appellants will suffer substantial loss if a stay of the N.T.S.C issued against them is not granted, pending the hearing and determination of Kisii HCCA E182 OF 2024.
4. The respondent in his replying affidavit, contends that this application is an abuse of the court process and is scandalous as the application filled herein is similar to that dated 9/10/2024 annexed as “LAA 1”. He further contends that the appellants and their counsel have mischievously sneaked this application and obtained interim orders to forestall the N.T.S.C process in the sub-ordinate court. He prayed that this Honorable court should not condone and entertain the application and should strike out both the application and the interim orders dated 12/02/2025.
APPELLANT’S SUBMISSIONS
5. They submitted that they should be granted a stay of execution pursuant to Order 42 rule 6(2) of the Civil Procedure Rules, proving that they stand to suffer substantial loss of over Ksh. 3,229,765.10/= as well as costs and interest if stay of execution is not granted. They further averred that the respondent has not demonstrated that he is able to refund the sum if the appeal succeeds. They contended that there has been no inordinate delay in bringing the appeal as the judgement and decree being appealed against was delivered on the 27/09/2024 and the Memorandum of Appeal filed eight days later on the 9/10/2024. They further submitted that the respondent should be found to be in contempt of court for having caused the issuance of a warrant of arrest against the second appellant while there were existing interim orders of stay of the notice to show cause.
RESPONDENT SUBMISSIONS
6. The respondent submits that the court should down its tools as the application will be a waste of it’s valuable judicial time because this application has been overtaken by events as the decree in the sub-ordinate court was executed on 6/3/2025 when one of the appellant was arrested and committed to a civil jail for a term of 6 months at GK Prison.
7. The respondent calls for dismissal of the application on the account that in the entire application, the appellants have not offered any security for the due satisfaction of the decree in the event of this appeal failing. He contends that it is a mandatory requirement under Order 42 of the Civil Procedure Rules.
ISSUES FOR DETERMINATION
8. I have carefully considered the application and submissions , the issue arising for determination is :
a) Whether the application meets the threshold for grant of stay pending appeal under Order 42 of the civil procedure rules .
9. Order 42 rule 6(2) of the Civil Procedure Rules outlines the principles guiding the grant of a stay of execution pending appeal. It states that:
(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.
Regarding the first principle of substantial loss, it was observed in 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. This is what substantial loss would entail, a question that was aptly discussed in the case of Silverstein N. Chesoni [2002] 1KLR 867, and also in the case of Mukuma V Abuoga quoted above. The last case, referring to the exercise of discretion by the High Court and the Court of Appeal in the granting stay of execution, under Order 42 of the CPR and Rule 5(2) (b) of the Court of Appeal Rules, respectively, emphasized the centrality of substantial loss thus:
“…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.”
9. The appellant averred that they stand to suffer substantial loss of over ksh. 3,229,765.10/= as well as costs and interest if stay of execution is not granted. They further averred that the respondent has not demonstrated that he is able to refund the sum if the appeal succeeds. In the case of RWW v EKW [2019] KEHC 6523 (KLR), the court expressed itself regarding the purpose of a stay of execution order pending appeal, stating that:
“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.”
10. The applicant says that the respondent has already taken out a notice to show cause why he should not be committed to civil jail against him and so he will suffer substantial loss unless stay of execution is granted and that his appeal will be rendered nugatory . On 19.3.25 this court was informed that the applicant has been arrested and committed to civil jail for 6 months on 6.3.25 I noted that on 26.2.25 when the matter came up for directions, the interim orders were not extended . The appellants have filed an appeal which is pending hearing in this court. The applicant has a right of appeal and the respondent is also entitled to enjoy the fruits of his judgment . The court has a duty to balance the two rights of each of the parties. The decretal sum is colossal and the respondent dues not say whether he will be able to refund the same if the same is paid to him . If the stay of execution is not granted, the appeal may be rendered nugatory .
11. On security , the appellant has not offered any security as required under Order 42 Rule 6 (b) of the civil procedure rules .The respondent raised this issue and submitted that the applicant has not satisfied the conditions for grant of stay of execution . The decision on whether to grant stay of execution pending appeal is discretionary but the same must be exercised judiciously. This is a money decree and it is important that the applicant deposits security for due performance as a mandatory requirement by the law . In the interest of Justice, I order that the applicants deposit half of the decretal sum in court as a condition for grant of stay pending appeal .
Whether the court cannot consider issues which were not pleaded .
12. Both the appellant and respondent in their submissions, touch on issues that were not pleaded in their application . . The appellants also submitted that the respondent should be found in contempt of court for obtaining a notice to show cause and warrant of arrest against the appellants amidst the existence of interim orders for stay of execution and N.T.S.C The respondent also submitted that the applicant filed a similar application dated 10.2.25
13. In the case of World Explorers Safaris Limited v Cosmopolitan Travel Limited & another [2021] KEHC 4130 (KLR), it was stated that:
“The issues in civil cases should be raised on the pleadings and if an issue arises which does not appear from the pleadings in their original form an appropriate amendment should be sought. Parties should not be unduly encouraged to rely, in the hope, perhaps, of obtaining some tactical advantage, to treat un-pleaded issues as having been fully investigated. The need for pleadings to be precise cannot be doubted. In M N M vs. D N M K & 13 Others, it was held that: -
“Decisions abound from this Court that unequivocally declaim the power of a court to determine issues which the parties have not raised in their pleadings or otherwise by consent allowed the court to determine. For example in Chalicha FCS Ltd v. Odhiambo & 9 Others [1987] KLR 182, the Court held that:
“Cases must be decided on the issues on the record. The court has no power to make an order, unless by consent, which is outside the pleadings. In this instance, the issues raised by the Judge and the order thereon, was a nullity.”
Later in Kenya Commercial Bank Ltd vs. Sheikh Osman Mohammed, CA No. 179 of 2010 the Court expressed itself thus:
“It is not the function of a court in civil litigation to speculate or surmise as to the nature of the plaintiff’s claim. Pleadings must be deployed to serve their function, namely to inform the other party, and the court, with sufficient clarity what their case is so that the other party may have a fair opportunity to meet that case and more importantly, so that the issues for determination by the court are clear.”
A court may validly determine an unpleaded issue where evidence is led by the parties and from the course followed at trial it appears that the unpleaded issue has been left to the court to decide (See Odd Jobs v. Mubea [1970] EA 476). However, that was clearly not the case in this appeal.”
14. It is trite law that parties are generally bound by their pleadings unless pleadings are amended during the hearing of a case. This is as was established in the case of GALAXY PAINTS COMPANY LTD v FALCON GUARDS LTD [2000] KECA 215 (KLR), where it was stated:
“It is trite law, and the provisions of O.XIV of the Civil Procedure Rules, are clear that issues for determination in a suit generally flow from the pleadings, and unless pleadings are amended in accordance with the provisions of the Civil Procedure Rules, the trial court, by dint of the provisions of O.XX rule 4 of the aforesaid rules, may only pronounce judgment on the issues arising from the pleadings or such issue as the parties have framed for the court''s determination.
In Gandy v. Caspair [1956]EACA 139 it was held that unless the pleadings are amended, parties must be confined to their pleadings. Otherwise, to decide against a party on matters which do not come within the issues arising from the dispute as pleaded clearly amounts to an error on the face of the record. And in Fernandes v. People Newspapers Ltd [1972] EA 63 Law Ag V.P. said:
"A civil case is decided on issues arising out of the pleadings. No allegation of negligence against the appellant has ever been made, and it was not open to the court to find negligence on his part."
15. There is a laid down procedure of dealing contempt of court. The parties are at liberty to move the court for contempt of court if they so wish .
16. I proceed to allow the application dated on 9.10.24 and I proceed to issue the following orders :
a. There be stay of execution of the Judgement dated 28.9.24 in Ogembo MCCC E127 of 2023 pending the hearing and determination of Kisii High Court Appeal NO. E182 of 2024 on condition that the applicants deposit half of the decretal sum in court within 30 days from today.
b. Costs to the respondent.
c. Mention on 1.12.25 before the Deputy Registrar for directions.
T.A ODERA
JUDGE
16.10.25
DELIVERED VIA CTS ON THIS 16TH DAY OF OCTOBER 20225
'