Background and Introduction
1. By way of a Motion dated 12th September 2025, the defendant/judgement debtor seeks a stay of execution of the judgment and decree of this Court delivered on 14th February 2025 pending the hearing and determination of its intended appeal. The application is supported by the affidavit of VIKAS GUDKA sworn on even date, and opposed by way of grounds of opposition and a replying affidavit sworn by BHUPENDRA KHATRI on 22nd October 2025. I have equally considered the written submissions filed by the opposing parties.
2. The application is opposed by way of a Replying Affidavit sworn on 30th June 2025 by Saleh Jackline, the plaintiff/decree holder's Legal Administrator and Analyst.
Analysis and Determination
3. The central issue for determination is whether the defendant has satisfied the conditions necessary for the issuance of the stay of execution orders sought. Order 42 Rule 6 of the Civil Procedure Rules sets out the legal framework under which a party may seek a stay of execution of a decree or judgment pending appeal. The Rule makes clear that the filing of an appeal does not, of itself, operate as a stay of execution. Nonetheless, the Court retains discretion to grant a stay where sufficient cause is shown.
4. For a party to succeed, three conditions must be satisfied. First, the applicant must demonstrate that substantial loss is likely to be suffered if the order for stay is not granted. Second, the application must be made without unreasonable delay. Third, the applicant must provide security for the due performance of the decree or order that may ultimately be binding upon them.
5. Accordingly, the purpose of the Rule is to strike a balance between two competing interests: on the one hand, safeguarding the right of an appellant to pursue an appeal without the risk of the judgment being executed prematurely; and on the other, protecting the right of the successful party to enjoy the fruits of their judgment. This rationale was aptly stated in RWW v EKW [2019] eKLR.
6. Applying these principles to the present matter, I note that the impugned judgment was delivered on 14th February 2025, while the present application was lodged on 12th September 2025, approximately seven months thereafter. No explanation has been offered to account for this considerable lapse of time. In the absence of any justification, such delay cannot be overlooked. A party seeking discretionary relief such as a stay of execution would be expected to act with promptitude and diligence. The unexplained delay of seven months, in my view, is inordinately long and militates against the grant of the orders sought, particularly in circumstances where expedition is expected to be of essence to safeguard the interests of justice. I am inclined to agree that the application appears to have been filed as an afterthought.
7. With respect to the question of substantial loss, it is not disputed that the defendant lodged a notice of appeal dated 20th February 2025 and thereafter applied for typed copies of the proceedings, which were made available for collection on 28th April 2025. The plaintiff has produced the said proceedings together with the certified decree. It is however significant to note that, as of now, no substantive appeal has been filed.
8. In the absence of such an appeal, I am unable to justify an assumption that the defendant’s cause may be rendered nugatory. The mere lodging of a notice of appeal, without more, does not in itself demonstrate substantial loss. The burden lies upon the applicant to establish that execution of the decree would occasion irreparable prejudice or render the intended appeal worthless. On the facts before me, that threshold has not been met, and I am therefore not persuaded that substantial loss has been shown.
9. On the contrary, any prejudice that may arise would fall upon the plaintiff, particularly given the uncertainty surrounding whether the defendant will ultimately be accorded audience before the Court of Appeal. Should the defendant eventually succeed in its appeal, any inconvenience occasioned by the delay in execution would be adequately compensated, as such prejudice would amount to no more than loss of time.
10. Moreover, I have not been informed that the plaintiff would be unable to satisfy the terms of any eventual outcome should the appeal succeed. In these circumstances, I am not persuaded that the defendant has demonstrated the existence of substantial loss as contemplated under the law. Accordingly, I find that the threshold of substantial loss has not been met in the present application.
11. In the circumstances, the issue of security does not arise. For the reasons that I have stated, I am persuaded that a stay of execution is not warranted.
Disposition
12. The application dated 12th September 2025 is therefore dismissed with costs.
1. By way of a Motion dated 12th September 2025, the defendant/judgement debtor seeks a stay of execution of the judgment and decree of this Court delivered on 14th February 2025 pending the hearing and determination of its intended appeal. The application is supported by the affidavit of VIKAS GUDKA sworn on even date, and opposed by way of grounds of opposition and a replying affidavit sworn by BHUPENDRA KHATRI on 22nd October 2025. I have equally considered the written submissions filed by the opposing parties.
2. The application is opposed by way of a Replying Affidavit sworn on 30th June 2025 by Saleh Jackline, the plaintiff/decree holder's Legal Administrator and Analyst.
Analysis and Determination
3. The central issue for determination is whether the defendant has satisfied the conditions necessary for the issuance of the stay of execution orders sought. Order 42 Rule 6 of the Civil Procedure Rules sets out the legal framework under which a party may seek a stay of execution of a decree or judgment pending appeal. The Rule makes clear that the filing of an appeal does not, of itself, operate as a stay of execution. Nonetheless, the Court retains discretion to grant a stay where sufficient cause is shown.
4. For a party to succeed, three conditions must be satisfied. First, the applicant must demonstrate that substantial loss is likely to be suffered if the order for stay is not granted. Second, the application must be made without unreasonable delay. Third, the applicant must provide security for the due performance of the decree or order that may ultimately be binding upon them.
5. Accordingly, the purpose of the Rule is to strike a balance between two competing interests: on the one hand, safeguarding the right of an appellant to pursue an appeal without the risk of the judgment being executed prematurely; and on the other, protecting the right of the successful party to enjoy the fruits of their judgment. This rationale was aptly stated in RWW v EKW [2019] eKLR.
6. Applying these principles to the present matter, I note that the impugned judgment was delivered on 14th February 2025, while the present application was lodged on 12th September 2025, approximately seven months thereafter. No explanation has been offered to account for this considerable lapse of time. In the absence of any justification, such delay cannot be overlooked. A party seeking discretionary relief such as a stay of execution would be expected to act with promptitude and diligence. The unexplained delay of seven months, in my view, is inordinately long and militates against the grant of the orders sought, particularly in circumstances where expedition is expected to be of essence to safeguard the interests of justice. I am inclined to agree that the application appears to have been filed as an afterthought.
7. With respect to the question of substantial loss, it is not disputed that the defendant lodged a notice of appeal dated 20th February 2025 and thereafter applied for typed copies of the proceedings, which were made available for collection on 28th April 2025. The plaintiff has produced the said proceedings together with the certified decree. It is however significant to note that, as of now, no substantive appeal has been filed.
8. In the absence of such an appeal, I am unable to justify an assumption that the defendant’s cause may be rendered nugatory. The mere lodging of a notice of appeal, without more, does not in itself demonstrate substantial loss. The burden lies upon the applicant to establish that execution of the decree would occasion irreparable prejudice or render the intended appeal worthless. On the facts before me, that threshold has not been met, and I am therefore not persuaded that substantial loss has been shown.
9. On the contrary, any prejudice that may arise would fall upon the plaintiff, particularly given the uncertainty surrounding whether the defendant will ultimately be accorded audience before the Court of Appeal. Should the defendant eventually succeed in its appeal, any inconvenience occasioned by the delay in execution would be adequately compensated, as such prejudice would amount to no more than loss of time.
10. Moreover, I have not been informed that the plaintiff would be unable to satisfy the terms of any eventual outcome should the appeal succeed. In these circumstances, I am not persuaded that the defendant has demonstrated the existence of substantial loss as contemplated under the law. Accordingly, I find that the threshold of substantial loss has not been met in the present application.
11. In the circumstances, the issue of security does not arise. For the reasons that I have stated, I am persuaded that a stay of execution is not warranted.
Disposition
12. The application dated 12th September 2025 is therefore dismissed with costs.