' INTRODUCTION
The Appellant have moved this court through their application dated 24th day of January 2025 seeking among other things:
a) Spent.
2. Spent.
3. THAT this Honourable Court be pleased to declare irregular, lift and set/aside and recall the decree, warrants of attachment and sale issued on 21st January, 2025 together with proclamation notice dated 23rd January, 2025.
4. THAT this Honorable Court be pleased to order stay of execution of the judgment and/or decree entered on 25th November, 2024, in KISII CMCC NO. E564 OF 2022, pending the hearing and determination of the Appellant''s Appeal, to wit, KISII HCCA NO. E005 OF 2025.
5. THAT this Honourable Court be pleased to set aside, recall and cancel the certificate of costs taxed ex-parte without the participation on the Appellant.
6. THAT this the Honourable Court be pleased to order that the advocate''s fees be re-assessed
7. THAT this Honourable Court do make any such further and/or other orders and issue any other relief it may deem just to grant in the interest of justice.
8. THAT the costs of this application be in the cause.
The Respondent vide a replying affidavit dated 30th January 2025 opposed the application for stay of execution on several grounds. He deposed that the application is incurably defective, incompetent, and an abuse of the court process. He further averred that the judgment was delivered on 25th November 2024, and the Appellant was granted a 30-day stay of execution, which lapsed without settlement of the decretal sum of Kshs. 1,758,061/= and taxed costs of Kshs. 253,300/=. Upon lapse of the said period, the Respondent lawfully commenced execution proceedings.
What has given rise to this ruling is a judgment delivered on 25th November 2024 by the Honourable Chief Magistrate in KISII CMCC No. E564 of 2022, wherein the court entered judgment against the Appellant for a sum of Kshs. 1,758,061/= together with costs and interest. A 30-day stay of execution was granted at the time of delivery.
As a result, when the Appellant failed to satisfy the decretal sum upon expiry of the stay period, the Respondent proceeded to extract a decree and was subsequently issued with warrants of attachment and sale on 21st January 2025. The effect of that decision was that the Respondent lawfully commenced execution against the Appellant’s property, including motor vehicles and office assets, thereby prompting the Appellant to move this Honourable Court seeking orders of stay pending appeal.
The applicant being aggrieved by this decision intends to challenge it in this court. In the meantime he has brought the instant motion for orders set out at the beginning of this ruling. The application is premised on the principles of Order 42 Rule 6, Order 51 Rule 1 of the Civil Procedure Rules Section 1A and 3A of the Civil Procedure Act, CAP 21 laws of Kenya of the Court of Appeals Rules, namely; that the applicant has an arguable appeal, and secondly that the appeal will be rendered nugatory if an injunction and stay of proceedings are not granted.
The application enumerates 20 grounds in support of the applicant''s prayers in the motion.
Submissions
Through their submissions dated 7th July 2025, the Applicant contends that the Notice of Motion dated 24th January 2025 meets the requirements under Order 42 Rule 6 of the Civil Procedure Rules. They argue that the application was filed promptly and that they risk suffering substantial loss if execution proceeds before the appeal is determined. The Applicant further states that they have complied with interim court orders by depositing half of the decretal sum in a joint interest-earning account and have expressed willingness to provide further security by way of a bank guarantee.
The Respondent filed written submissions dated 20th April 2025 opposing the Applicant’s Notice of Motion dated 24th January 2025. In the submissions, the Respondent argues that the application is fatally defective, having been supported by an affidavit sworn by a non-party, and that it was filed after an inordinate delay. It is further submitted that the Applicant has failed to satisfy the legal threshold for stay of execution as set out under Order 42 Rule 6 of the Civil Procedure Rules, 2010, particularly on the aspect of demonstrating substantial loss.
The Respondent also contends that the Applicant was served with the party-and-party bill of costs, participated in the taxation process by filing submissions, and never lodged a reference against the taxed amount as required under Rule 11 of the Advocates (Remuneration) Order. In result, the execution process commenced lawfully. The Respondent urges the Court to dismiss the application with costs, as the Applicant is merely seeking to delay enforcement of a valid judgment and decree.
In view of these factors and the fact that the appeal raises serious issues on both liability and quantum, the Applicant urges the Court to grant a stay of execution to prevent the appeal from being rendered nugatory.
Issues for Determination
1. Whether the Appellant has met the legal threshold for stay of execution pending appeal.
2. Whether the decree, warrants of attachment and sale, and the certificate of costs should be set aside or recalled.
1. Stay of Execution Pending Appeal
Order 42 Rule 6(2) of the Civil Procedure Rules requires that the applicant must show:
• The application was made without unreasonable delay;
• Substantial loss may result if the stay is not granted;
• Security has been furnished as the court may order.
a) Timeliness
The judgment was delivered on 25th November 2024, with execution commencing after the 30-day stay expired. The application for stay was filed on 24th January 2025immediately following the issuance of warrants. The stay period granted by the lower court ended on 25.12.24 which was a holy day. it is trite law that time does not run between to 21st of December to 13th of January of the following year.
Order 50, rule 4 of the civil procedure rules provides that -
‘’Except where otherwise directed by a judge for reasons to be recorded in writing, the period between the twenty-first day of December in any year and the thirteenth day of January in the year next following, both days included, shall be omitted from any computation of time (whether under these Rules or any order of the court) for the amending, delivering or filing of any pleading or the doing of any other act: Time thus stops running for Christmas holiday for about 24 days . Time for stay stopped running from 22. 12. 24 till 25.1.25 . The 30 days stay granted by the lower court thus expired on 4.2.25 . The instant application was filed on or about 23.1.25 which was before the expiry of the stay orders granted by the lower court . I find that there was not no delay in filing the application.
b) Substantial Loss
1. The Applicant told this court that substantial loss if he pay the decretal sum before the appeal is heard and determined as the respondent is a man of straw who would not be able to refund the decretal sum incase the appeal succeeds. The respondent on his part deponed that he is a man of means and he will be able to refund the decretal sum incase the appeal succeeds. The respondent did not go beyond saying that he is a man of means . he did not specify what he does for a living or produced any documents to support his allegation. 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.”
The applicant told this court that he risks suffering substantial loss as its tools of trade which are vehicles and office equipment would be attached and sold unless the sought stay is granted. Such action may severely disrupt its operations.. The right of an applicant to be heard must also be weighed against the right of a decree holder to enjoy the fruits of his judgment . The Court is satisfied that substantial loss has been demonstrated.
c) Security
The Applicant offered bank guarantee as security while the respondent has proposed that ½ decretal sum be released to him while the other half be deposited in a joint interest earning account in the names of both counsel herein court. The applicant complied with the orders of court issued in the interim by depositing half the decretal sum in court . The proposal for a bank guarantee is vague as none has been annexed herein and thus recovery of the same may be difficult incase there is need to execute if the appeal does not succeed . Release of ½ of the decretal sum may also not work as the respondent has not shown that
Accordingly, the Court is persuaded that the Applicant has met the requirements for a stay of execution pending appeal.
2. Validity of Execution and Certificate of Costs
Taking into account the Christmas period when time does not run, the 30 days stay of execution granted to the applicant on 25.11.24 lapsed on 4.2.25 . The execution was thus not ripe and thus the warrants of attachment were irregularly obtained..
On the issue of the certificate of taxed costs, no decree and certificate of costs have not been filed herein and no reference was filed under Rule 11 of the Advocates (Remuneration) to challenge the taxation. The allegation is thus not supported by any evidence
Conclusion.
Having carefully considered the motion, the responses, and submissions by both parties, the Court makes the following determination:
1. Stay of execution of the judgment and decree entered on 25th November 2024 in KISII CMCC NO. E564 OF 2022 is hereby granted, pending the hearing and determination of the appeal in HCCA No. E005 of 2025. The half decretal sum which has already been deposited in court shall be the security for due performance.
2. The prayer seeking to set aside or recall the decree, warrants of attachment and sale, and proclamation notice dated 23rd January 2025 is partially allowed save that the decree shall remain as it is pending appeal .
3. The prayer to set aside and recall the certificate of costs is dismissed.
4. Costs of this application shall be in the appeal.
5. The record of appeal be filed and served within 60 days from today.
6. Mention on 2.2.26
T.A. ODERA
JUDGE
7.10.25
DELIVERED VIRTUALLY VIA TEAMS PLATFORM ON THIS 7TH DAY OF OCTOBER 2025 IN THE PRESENCE OF Miss Gitonga for appellant applicant . CA : KIPCHIRCHIR N./A FOR RESPONDENT
'
The Appellant have moved this court through their application dated 24th day of January 2025 seeking among other things:
a) Spent.
2. Spent.
3. THAT this Honourable Court be pleased to declare irregular, lift and set/aside and recall the decree, warrants of attachment and sale issued on 21st January, 2025 together with proclamation notice dated 23rd January, 2025.
4. THAT this Honorable Court be pleased to order stay of execution of the judgment and/or decree entered on 25th November, 2024, in KISII CMCC NO. E564 OF 2022, pending the hearing and determination of the Appellant''s Appeal, to wit, KISII HCCA NO. E005 OF 2025.
5. THAT this Honourable Court be pleased to set aside, recall and cancel the certificate of costs taxed ex-parte without the participation on the Appellant.
6. THAT this the Honourable Court be pleased to order that the advocate''s fees be re-assessed
7. THAT this Honourable Court do make any such further and/or other orders and issue any other relief it may deem just to grant in the interest of justice.
8. THAT the costs of this application be in the cause.
The Respondent vide a replying affidavit dated 30th January 2025 opposed the application for stay of execution on several grounds. He deposed that the application is incurably defective, incompetent, and an abuse of the court process. He further averred that the judgment was delivered on 25th November 2024, and the Appellant was granted a 30-day stay of execution, which lapsed without settlement of the decretal sum of Kshs. 1,758,061/= and taxed costs of Kshs. 253,300/=. Upon lapse of the said period, the Respondent lawfully commenced execution proceedings.
What has given rise to this ruling is a judgment delivered on 25th November 2024 by the Honourable Chief Magistrate in KISII CMCC No. E564 of 2022, wherein the court entered judgment against the Appellant for a sum of Kshs. 1,758,061/= together with costs and interest. A 30-day stay of execution was granted at the time of delivery.
As a result, when the Appellant failed to satisfy the decretal sum upon expiry of the stay period, the Respondent proceeded to extract a decree and was subsequently issued with warrants of attachment and sale on 21st January 2025. The effect of that decision was that the Respondent lawfully commenced execution against the Appellant’s property, including motor vehicles and office assets, thereby prompting the Appellant to move this Honourable Court seeking orders of stay pending appeal.
The applicant being aggrieved by this decision intends to challenge it in this court. In the meantime he has brought the instant motion for orders set out at the beginning of this ruling. The application is premised on the principles of Order 42 Rule 6, Order 51 Rule 1 of the Civil Procedure Rules Section 1A and 3A of the Civil Procedure Act, CAP 21 laws of Kenya of the Court of Appeals Rules, namely; that the applicant has an arguable appeal, and secondly that the appeal will be rendered nugatory if an injunction and stay of proceedings are not granted.
The application enumerates 20 grounds in support of the applicant''s prayers in the motion.
Submissions
Through their submissions dated 7th July 2025, the Applicant contends that the Notice of Motion dated 24th January 2025 meets the requirements under Order 42 Rule 6 of the Civil Procedure Rules. They argue that the application was filed promptly and that they risk suffering substantial loss if execution proceeds before the appeal is determined. The Applicant further states that they have complied with interim court orders by depositing half of the decretal sum in a joint interest-earning account and have expressed willingness to provide further security by way of a bank guarantee.
The Respondent filed written submissions dated 20th April 2025 opposing the Applicant’s Notice of Motion dated 24th January 2025. In the submissions, the Respondent argues that the application is fatally defective, having been supported by an affidavit sworn by a non-party, and that it was filed after an inordinate delay. It is further submitted that the Applicant has failed to satisfy the legal threshold for stay of execution as set out under Order 42 Rule 6 of the Civil Procedure Rules, 2010, particularly on the aspect of demonstrating substantial loss.
The Respondent also contends that the Applicant was served with the party-and-party bill of costs, participated in the taxation process by filing submissions, and never lodged a reference against the taxed amount as required under Rule 11 of the Advocates (Remuneration) Order. In result, the execution process commenced lawfully. The Respondent urges the Court to dismiss the application with costs, as the Applicant is merely seeking to delay enforcement of a valid judgment and decree.
In view of these factors and the fact that the appeal raises serious issues on both liability and quantum, the Applicant urges the Court to grant a stay of execution to prevent the appeal from being rendered nugatory.
Issues for Determination
1. Whether the Appellant has met the legal threshold for stay of execution pending appeal.
2. Whether the decree, warrants of attachment and sale, and the certificate of costs should be set aside or recalled.
1. Stay of Execution Pending Appeal
Order 42 Rule 6(2) of the Civil Procedure Rules requires that the applicant must show:
• The application was made without unreasonable delay;
• Substantial loss may result if the stay is not granted;
• Security has been furnished as the court may order.
a) Timeliness
The judgment was delivered on 25th November 2024, with execution commencing after the 30-day stay expired. The application for stay was filed on 24th January 2025immediately following the issuance of warrants. The stay period granted by the lower court ended on 25.12.24 which was a holy day. it is trite law that time does not run between to 21st of December to 13th of January of the following year.
Order 50, rule 4 of the civil procedure rules provides that -
‘’Except where otherwise directed by a judge for reasons to be recorded in writing, the period between the twenty-first day of December in any year and the thirteenth day of January in the year next following, both days included, shall be omitted from any computation of time (whether under these Rules or any order of the court) for the amending, delivering or filing of any pleading or the doing of any other act: Time thus stops running for Christmas holiday for about 24 days . Time for stay stopped running from 22. 12. 24 till 25.1.25 . The 30 days stay granted by the lower court thus expired on 4.2.25 . The instant application was filed on or about 23.1.25 which was before the expiry of the stay orders granted by the lower court . I find that there was not no delay in filing the application.
b) Substantial Loss
1. The Applicant told this court that substantial loss if he pay the decretal sum before the appeal is heard and determined as the respondent is a man of straw who would not be able to refund the decretal sum incase the appeal succeeds. The respondent on his part deponed that he is a man of means and he will be able to refund the decretal sum incase the appeal succeeds. The respondent did not go beyond saying that he is a man of means . he did not specify what he does for a living or produced any documents to support his allegation. 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.”
The applicant told this court that he risks suffering substantial loss as its tools of trade which are vehicles and office equipment would be attached and sold unless the sought stay is granted. Such action may severely disrupt its operations.. The right of an applicant to be heard must also be weighed against the right of a decree holder to enjoy the fruits of his judgment . The Court is satisfied that substantial loss has been demonstrated.
c) Security
The Applicant offered bank guarantee as security while the respondent has proposed that ½ decretal sum be released to him while the other half be deposited in a joint interest earning account in the names of both counsel herein court. The applicant complied with the orders of court issued in the interim by depositing half the decretal sum in court . The proposal for a bank guarantee is vague as none has been annexed herein and thus recovery of the same may be difficult incase there is need to execute if the appeal does not succeed . Release of ½ of the decretal sum may also not work as the respondent has not shown that
Accordingly, the Court is persuaded that the Applicant has met the requirements for a stay of execution pending appeal.
2. Validity of Execution and Certificate of Costs
Taking into account the Christmas period when time does not run, the 30 days stay of execution granted to the applicant on 25.11.24 lapsed on 4.2.25 . The execution was thus not ripe and thus the warrants of attachment were irregularly obtained..
On the issue of the certificate of taxed costs, no decree and certificate of costs have not been filed herein and no reference was filed under Rule 11 of the Advocates (Remuneration) to challenge the taxation. The allegation is thus not supported by any evidence
Conclusion.
Having carefully considered the motion, the responses, and submissions by both parties, the Court makes the following determination:
1. Stay of execution of the judgment and decree entered on 25th November 2024 in KISII CMCC NO. E564 OF 2022 is hereby granted, pending the hearing and determination of the appeal in HCCA No. E005 of 2025. The half decretal sum which has already been deposited in court shall be the security for due performance.
2. The prayer seeking to set aside or recall the decree, warrants of attachment and sale, and proclamation notice dated 23rd January 2025 is partially allowed save that the decree shall remain as it is pending appeal .
3. The prayer to set aside and recall the certificate of costs is dismissed.
4. Costs of this application shall be in the appeal.
5. The record of appeal be filed and served within 60 days from today.
6. Mention on 2.2.26
T.A. ODERA
JUDGE
7.10.25
DELIVERED VIRTUALLY VIA TEAMS PLATFORM ON THIS 7TH DAY OF OCTOBER 2025 IN THE PRESENCE OF Miss Gitonga for appellant applicant . CA : KIPCHIRCHIR N./A FOR RESPONDENT
'