https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12235

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT MACHAKOS** **MACHAKOS LAW COURTS** **MACHAKOS HIGH COURT CIVIL APPEAL NUMBER E004 OF 2026** **BETWEEN** **ABSA BANK LKENYA PLC……………………………………………….APPELLANT** **VERSUS** **GERALD EREGAE EWOYATE…………………………………………RESPONDENT** **RULING** 1. Before this Court is the Notice of Motion dated 15th January 2026 brought under the provisions of Article 159 (2) (d) of the Constitution of Kenya, 2020, Section 1A, 3 and 3A of the Civil Procedure Act, Order 42 Rule 6 and Order 51 Rule 1 of the Civil Procedure Rules, whereas the Appellant seeks the following orders; 2. THAT the Honourable Court be pleased to issue orders for stay of execution of the judgment and/or decree emanating from the judgment of Honourable Senior Principal Magistrate Betty Chepkemei Koech delivered on 28th November 2025 in Machakos Civil Suit Number E214 of 2022 pending the hearing and determination of this Application 3. THAT the Honourable Court be pleased to issue orders for a stay of execution of the judgment and/or decree emanating from the judgment of Honourable Senior Principal Magistrate Betty Chepkemei Koech delivered on 28th November 2025 in Machakos Civil Suit Number E214 of 2022 pending the hearing and determination of this appeal. 4. THAT the Honourable Court be pleased to issue any further orders that are just in the circumstances 5. THAT the costs of this Application be provided for. 6. The application is premised on the grounds set out in the body of the application, and facts deposed to in the supporting affidavit of Mercy Wambugu, the Appellant's Legal Counsel, sworn on 15th January 2026. 7. The deponent avers that she is duly authorized to swear the affidavit on behalf of the Applicant and is conversant with the facts giving rise to the application by virtue of her position within the Appellant institution. 8. It is deposed that the learned Senior Principal Magistrate delivered judgment on 28th November 2025 in Machakos Civil Suit No. E214 of 2022 wherein the court held that an occupier's duty of care extended even to trespassers, including the Respondent herein. 9. According to the Applicant, the learned trial magistrate misapprehended the provisions of Section 3 of the Occupiers' Liability Act, which limits an occupier's duty of care to visitors who are invited or otherwise permitted to be on the premises. 10. The trial court awarded the Respondent general damages in the sum of Kshs. 700,000/= together with costs and interest thereon. 11. The Applicant stated that although the trial court granted a thirty (30) day stay of execution, the said period lapsed during the December court vacation. 12. The Applicant averred that it is reasonably apprehensive that unless an order of stay is granted, the Respondent will proceed with execution of the decree, thereby occasioning prejudice to the Applicant. 13. The Applicant contended that execution is imminent and that, unless this Court intervenes, the intended appeal will be rendered nugatory. 14. The Applicant further deposed that it has lodged an appeal challenging the judgment of the trial court, which it contends is arguable and has a high chance of success. 15. It is further deposed that the Memorandum of Appeal has been filed and that the Applicant has requested typed proceedings from the trial court. 16. On the issue of security, the Applicant averred that, in view of what it considers to be the trial court's misapprehension of the law and the interests of justice, this Court should grant the orders sought without requiring the deposit of the decretal sum. 17. It is further deposed that the Applicant is a tier-one financial institution with the financial capacity to satisfy any orders that this Court may ultimately make upon the determination of the appeal. 18. It is further deposed that the application has been presented without unreasonable delay, regard being had to the provisions of Order 50 Rule 4 of the Civil Procedure Rules under which time does not run between 21st December and 13th January, both days inclusive. 19. The Applicant averred that it is in the interest of justice that the reliefs sought in the application be granted to avert injustice. 20. The application is opposed through the Replying Affidavit sworn by the Respondent, Gerald Eregae Ewoyate, dated 20th January 2026. 21. The Respondent deposed that he was the Plaintiff in the subordinate court and was therefore well acquainted with the facts of the dispute. 22. He deponed the application as misconceived, founded on erroneous assertions of both fact and law and an attempt by the Appellant to evade satisfaction of a lawful judgment. 23. The Respondent disputed the Appellant's contention that he was a trespasser, maintaining that he was at all material times a lawful visitor and account holder of the Appellant Bank. 24. He stated that on the material day he visited the Appellant's Machakos Branch to report the theft of his ATM card and to close his account for security purposes, matters directly connected to the banking services offered by the Appellant. 25. The Respondent further deposed that the learned trial magistrate's finding on liability was grounded on the evidence adduced during the trial, including the Appellant's own admission and video evidence that he fell from a raised veranda that lacked protective guard-rails. 26. It is the Respondent’s case that the hazardous condition of the premises constituted a clear breach of the Appellant's duty of care. 27. He further deposed that the Appellant has failed to satisfy the conditions stipulated under Order 42 Rule 6 of the Civil Procedure Rules as it has neither demonstrated the substantial loss it stands to suffer nor offered any security for the due performance of the decree. 28. The Respondent further contended that the Appellant's assertion that he lacks the financial means to refund the decretal sum is speculative, unsubstantiated and intended to deny him the fruits of his judgment. 29. It was further deposed that the Respondent is a serving member of the Kenya Defence Forces and that the injuries sustained in the accident, which necessitated the insertion of a metal implant, have negatively affected his eligibility for deployment and career progression. 30. The Respondent also contended that the Appeal itself is merely a tactic to delay justice and that the Applicant’s claim that its appeal has overwhelming chances of success is unfounded in light of the factual findings and legal conclusions reached by the trial court on the issue of occupiers’ liability. 31. Consequently, the Respondent urged the Court to dismiss the application with costs. 32. In the alternative and without prejudice to the foregoing, he prayed that should the Court be inclined to grant an order of stay, the Appellant be directed to deposit the entire decretal sum in a joint interest-earning account in the names of the respective advocates on record pending the hearing and determination of the appeal. 33. The application was canvassed by way of written submissions. 34. The Appellant filed submissions dated 13th February 2026 reiterating that the application satisfies the requirements for the grant of stay under Order 42 Rule 6 of the Civil Procedure Rules. 35. It was submitted that the Court granted a 30-day stay of execution and, according to Order 50 Rule 4 of the Civil Procedure Rules, time does not run between 21st December and 13th January of the next year, both days inclusive, and therefore, the Application was filed on time and without undue delay. 36. On the arguability of the appeal, the Applicant submitted that the intended appeal raises serious questions of law regarding the interpretation and application of Section 3 of the Occupiers' Liability Act. 37. It was contended that the learned trial magistrate erred in holding that an occupier's duty of care extends to trespassers, contrary to the express provisions of the Act. 38. The Applicant further submitted that the Respondent was neither an invited nor a permitted visitor to the Bank's premises. 39. According to the Applicant, the Respondent had gone to the Bank after business hours and attempted to force entry into the premises. It was argued that the CCTV footage produced at trial demonstrated that the Respondent fell while attempting to force his way through the Bank's door, not because the premises lacked protective guardrails. 40. The Applicant therefore maintained that the trial court misapprehended both the law and the evidence before it, rendering the impugned judgment liable to interference on appeal. It was further submitted that, if upheld, the decision would improperly extend occupiers' liability to persons unlawfully entering premises, thereby setting an undesirable precedent. 41. On the issue of substantial loss, the Applicant submitted that unless an order of stay is granted, the appeal will be rendered nugatory as the Respondent lacks financial means to refund the decretal sum of Kshs. 700,000/- should the appeal succeed. 42. It was further argued that the Respondent’s deposition that the injuries sustained affected his deployment and promotion within the Kenya Defence Forces was indicative of his inability to refund the decretal sum. 43. The Applicant further submitted that the Respondent had not produced any evidence demonstrating his financial ability to refund the decretal amount in the event the appeal succeeds. 44. It was contended that, in the absence of such evidence, there existed a real likelihood that the Appellant would suffer substantial loss if compelled to satisfy the decree before the appeal is heard and determined. 45. In support of this submission, the Applicant relied on National Industrial Credit Bank Limited v Aquinas Francis Wasike & Another (Civil Application No. 238 of 2005), for the proposition that once an Applicant expresses a reasonable apprehension that a Respondent may be unable to refund the decretal sum, the evidential burden shifts to the respondent to demonstrate his financial ability to do so, that being a matter peculiarly within his knowledge. 46. In the issue of security, the Applicant submitted that the circumstances of the present case warrant the grant of an order of stay without requiring the deposit of the decretal sum in court or in a joint interest-earning account. 47. It was argued that the impugned judgment was founded on a misapprehension of the law and the evidence and that requiring the Applicant to deposit the decretal sum would occasion unnecessary prejudice. 48. The Applicant further submitted that, being a tier-one financial institution, the funds it holds belong to members of the public and constitute its capital and tool of trade. 49. It was therefore contended that an order requiring the deposit of the decretal sum would unnecessarily tie up funds that are essential to its banking operations. 50. The Applicant nevertheless expressed its willingness to furnish a bank guarantee as security for the due performance of the decree, should the Court deem it necessary. 51. It was submitted that the proposal to provide a bank guarantee demonstrated the Applicant's good faith and its ability to satisfy any decree that may ultimately be binding upon it. 52. In support of the foregoing submissions, reliance was placed on Focin Motorcycle Co. Limited v Ann Wambui Wangui & Another [2018] KEHC 8358 (KLR), wherein the Court observed that the purpose of security under Order 42 Rule 6 of the Civil Procedure Rules is to guarantee the due performance of the decree and not to punish a judgment debtor. 53. The Applicant therefore urged the Court to find that it had satisfied the requirement as to security. 54. The Respondent, on his part, filed written submissions dated 13th March 2026, opposing the application. 55. It was submitted that the Appellant had failed to demonstrate what loss, if any, and if substantiated, if any, they would suffer by making payments to the Plaintiff herein. 56. It was argued that the Applicant's assertion that the Respondent was unemployed and incapable of refunding the decretal sum was a misrepresentation of the Respondent's Replying Affidavit. 57. It was maintained that the Respondent is a serving member of the Kenya Defence Forces and that his reference to ineligibility for deployment related solely to the effects of the injuries sustained in the accident and not to his employment status. 58. The Respondent further submitted that the decision in National Industrial Credit Bank Ltd v Aquinas Francis Wasike & Another[2006] KECA 333(KLR), relied upon by the Applicant, was distinguishable. 59. It was argued that, unlike in that case where the respondent's means were unknown, the Respondent herein had disclosed his employment and there was therefore no basis for presuming that he lacked the ability to refund the decretal sum. Reliance was also placed on Paul Kithinji v Olyvine Karwitha [2017] eKLR and James Wangalwa & Another v Agnes Naliaka Cheseto [2012] eKLR for the proposition that substantial loss cannot be presumed and must be specifically demonstrated. 60. On the arguability of the appeal, the Respondent submitted that the Applicant's contention that he was a trespasser was contrary to the evidence adduced before the trial court. 61. The Respondent maintained that he was an account holder of the Applicant Bank and had lawfully visited the Bank's premises to report the loss of his ATM card. 62. It was further submitted that the trial court had the benefit of hearing the witnesses and viewing the CCTV footage before finding that the Respondent fell from a raised veranda that lacked guard rails after being pushed by a security guard stationed at the Applicant's premises. 63. The Respondent further submitted that the prospects of success of the intended appeal are not a relevant consideration in an application for stay under Order 42 Rule 6 of the Civil Procedure Rules. Reliance was placed on Omare v Machakos University [2019] eKLR*,* wherein the Court observed that requiring the court seized of a stay application to determine the merits of the intended appeal would amount to conducting a mini appeal. 64. The Respondent therefore maintained that the appeal was merely an attempt to relitigate issues that the trial court had conclusively determined. 65. On the issue of security, the Respondent submitted that the Applicant had failed to offer any security in its application as required under Order 42 Rule 6(2) of the Civil Procedure Rules. 66. It was argued that the proposal to furnish a bank guarantee was introduced in the Applicant's written submissions and could not cure the omission in the application or supporting affidavit, submissions not being evidence. In support of this contention, reliance was placed on Warindu t/a Peter M. Warindu & Company Advocates v Archdiocese of Kisumu Catholic Church [2026] KEHC 1859 (KLR). 67. The Respondent further submitted that the proposed bank guarantee was not, in the circumstances of this case, adequate security for the due performance of the decree. Reliance was placed on Mutiso & Another v Ngoma (Civil Appeal E109 of 2021) [2021] KEHC 344(KLR). Counsel urged the Court, should it be inclined to grant a stay, to direct the Applicant to deposit the entire decretal sum in a joint interest-earning account in the names of the parties' advocates. 68. Finally, the Respondent submitted that, as the successful litigant, he was entitled to enjoy the fruits of his judgment. In support of this submission, reliance was placed on M/S Portreitz Maternity *v* James Karanja Kabia, Civil Appeal No. 63 of 1997,for the proposition that the right of appeal must be balanced against the equally weighty right of a successful litigant to enjoy the fruits of a lawful judgment. 69. The Respondent therefore urged the Court to dismiss the application with costs or, in the alternative, to grant a stay on condition that the entire decretal sum be deposited in a joint interest-earning account in the names of the parties' advocates. 70. I have considered the Notice of Motion dated 15th January 2026, the affidavit in support thereof, the Replying Affidavit filed in opposition, the rival written submissions by counsel and the authorities relied upon. 71. In my view, the issue falling for determination is; 72. Whether the Applicant has satisfied the conditions for the grant of an order of stay of execution pending appeal under Order 42 Rule 6 of the Civil Procedure Rules. 73. The principles governing the grant of an order of stay of execution pending appeal are settled. The jurisdiction of this Court is conferred by Order 42 Rule 6(2) of the Civil Procedure Rules, which provides: "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." 1. The principles governing the grant of an order of stay of execution pending appeal are now well settled. In **Butt v Rent Restriction Tribunal [1982] KLR 417*,*** the Court of Appeal held that the grant of a stay is a discretionary remedy to be exercised in a manner that does not render an appeal nugatory. 2. Likewise, in **RWW v EKW [2019] eKLR,** the Court observed that the purpose of a stay is to preserve the subject matter of the appeal while balancing the competing rights of the parties. Further, in **Kenya Shell Limited v Benjamin Karuga Kibiru & Another [1986] KLR 410,** the Court emphasized that substantial loss is the cornerstone of an application for stay pending appeal. 3. In addition, the Court is enjoined to exercise its discretion judiciously to balance two competing rights. On the one hand is the successful litigant's right to enjoy the fruits of his judgment, and on the other is the unsuccessful party's undoubted right of appeal. The Court must therefore ensure that neither right is unjustifiably prejudiced. 4. I will now consider whether the Applicants have satisfied the requirements under Order 42 Rule 6(2) of the Civil Procedure Rules. The Applicant must therefore satisfy the Court that: the application was made without unreasonable delay; substantial loss may result unless stay is granted; and such security as the Court may order has been furnished for the due performance of the decree. 5. The impugned judgment was delivered on 28th November 2025, while the present application was filed on 15th January 2026. 6. The Applicant attributes the interval between the delivery of judgment and the filing of the application to the operation of Order 50 Rule 4 of the Civil Procedure Rules, which excludes the period between 21st December and 13th January, both days inclusive, from the computation of time; the Respondent did not seriously contest this explanation. 7. Taking into account the period excluded under Order 50 Rule 4 of the Civil Procedure Rules, I am satisfied that the present application was filed without unreasonable delay. Accordingly, the Applicant has satisfied the first limb of Order 42 Rule 6(2)(a) of the Civil Procedure Rules. 8. The Applicant contends that unless a stay is granted, the Applicant is likely to suffer substantial loss as there is no guarantee that the Respondent will be able to refund the decretal sum in the event the appeal succeeds. 9. The law is settled that substantial loss is the cornerstone of an application for stay of execution pending appeal. 10. An 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 constitutes substantial loss would entail, a question that was aptly discussed in the case of Silverstein N. Chesoni [2002] 1KLR 867. 11. In the present case, the Applicant's apprehension is founded on the assertion that the Respondent lacks the financial means to refund the decretal sum of Kshs. 700,000/- should the appeal ultimately succeed. 12. The Applicant submits that the Respondent did not place before the Court any evidence demonstrating his financial ability to refund the decretal sum 13. The Respondent, however, disputes the assertion and maintains that he is a serving member of the Kenya Defence Forces. He further contends that although the injuries sustained have affected his employment and promotional prospects, he remains in employment and that the Applicant’s allegations that he is incapable of refunding the decretal sum are speculative and unsupported by evidence. 14. The Applicant relied on the decision in National Industrial Credit Bank Limited v Aquinas Francis Wasike & Another (Civil Application No. 238 of 2005), where the Court of Appeal held that once an applicant expresses a reasonable apprehension that a respondent may be unable to refund the decretal sum, the evidential burden shifts to the respondent to demonstrate his financial ability, that being a matter peculiarly within his knowledge. 15. While I agree with the foregoing principle, each case must turn on its own peculiar facts. In the instant case, the Respondent has disclosed that he is a serving member of the Kenya Defence Forces. Although he has not tendered documentary evidence of his income or financial resources, neither has the Applicant placed before the Court any material demonstrating that the Respondent is impecunious. 16. The Applicant's assertion is largely premised on the inference that the Respondent's medical condition has affected his deployment and promotional opportunities. 17. In my view, the mere fact that the Respondent's injuries have adversely affected his deployment and promotion cannot, without more, be taken to mean that he lacks the financial ability to refund the decretal sum. Equally, the fact that the Respondent remains in employment does not, of itself, conclusively establish that he would be able to refund the decretal amount should the appeal succeed. The Court must therefore evaluate all the circumstances presented before it. 18. The Court is alive to the fact that the decree herein is a money decree. Ordinarily, payment of a money decree does not, by itself, amount to substantial loss unless it is shown that the respondent would be unable to refund the decretal sum in the event the appeal succeeds. As was stated in Paul Kithinji v Olyvine Karwitha [2017] eKLR, substantial loss cannot be presumed and must be established by evidence. 19. Having considered the rival positions, I find that the Applicant has demonstrated a reasonable apprehension regarding the recoverability of the decretal sum, while the Respondent has disclosed his employment but has not gone further to demonstrate his financial means. 20. In the circumstances, I am persuaded that the justice of the case would be served by preserving the decretal sum pending the determination of the appeal through an appropriate order as to security, rather than by denying the Applicant the relief sought altogether. 21. The final requirement under Order 42 Rule 6(2)(b) of the Civil Procedure Rules is that the Applicant must furnish such security as the Court may order for the due performance of the decree. 22. On the issue of security, the Applicant submitted that, being a Tier-One financial institution, it possesses the financial capacity to satisfy any decree that may ultimately be binding upon it. It was contended that requiring the Applicant to deposit the decretal sum would unnecessarily tie up funds constituting its capital and tool of trade. 23. The Applicant nevertheless expressed its willingness to furnish a bank guarantee instead of depositing the decretal sum as security for the due performance of the decree and urged the Court to accept the same. 24. In support of that position, the Applicant relied on Focin Motorcycle Co. Limited v Ann Wambui Wangui & Another [2018] KEHC 8358 (KLR), where the Court observed that the purpose of security under Order 42 Rule 6 is not to punish the Judgment-Debtor but to guarantee the due performance of such decree as may ultimately be binding upon the Applicant 25. The Respondent, however, submitted that the Applicant failed to offer any security in its Notice of Motion or Supporting Affidavit. According to the Respondent, the proposal to furnish a bank guarantee was introduced in the Applicant's written submissions and cannot cure the omission, submissions not being evidence. Reliance was placed on Warindu t/a Peter M. Warindu t/a Peter M Warindu & Company Advocates v Archdiocese of Kisumu Catholic Church [2026] KEHC 1859 (KLR) for the proposition that submissions cannot introduce new factual matters that were neither pleaded nor deponed to. 26. The Respondent further argued that a bank guarantee is not, in the circumstances of this case, adequate security for the due performance of the decree. Counsel relied on Mutiso & Another v Ngoma (Civil Appeal E109 of 2021) [2021] KEHC 344 (KLR) and urged the Court, if inclined to grant a stay, to order the deposit of the entire decretal sum in a joint interest-earning account in the names of the parties' advocates. 27. I have considered the rival submissions on security. The requirement under Order 42 Rule 6(2)(b) is mandatory. However, the Rule does not prescribe the nature of the security to be furnished. Rather, it leaves the nature and sufficiency of the security to the discretion of the Court, provided that it secures the due performance of the decree should the appeal ultimately fail. 28. In Focin Motorcycle Co. Limited v Ann Wambui Wangui & Another (supra), the Court observed that the purpose of security is not to punish a judgment debtor but to guarantee the due performance of the decree. 29. The Court further emphasized that it is ultimately for the Court, and not the parties, to determine the nature of the security that is appropriate in the circumstances of each case. 30. While the Applicant has expressed its willingness to furnish a bank guarantee, I note that such proposal was not expressly made in the Supporting Affidavit but was advanced in the written submissions. Be that as it may, the Court retains the discretion to determine the form of security that best balances the competing interests of the parties. 31. In the circumstances of this case, I am of the considered view that the interests of justice will be adequately safeguarded by directing that the decretal sum be deposited in a joint interest-earning account in the names of the parties' advocates within a specified period. 32. Such an order preserves the decretal sum pending the determination of the appeal while at the same time safeguarding the Respondent's right to enjoy the fruits of his judgment should the appeal ultimately fail. I find that the application has merit to the extent indicated above. Accordingly, I make the following orders: 1. There shall be a stay of execution of the judgment and decree delivered on 28th November 2025 in Machakos CMCC No. E214 of 2022 pending the hearing and determination of the appeal. 2. The stay granted in (a) above is conditional upon the Applicant depositing the entire decretal sum of Kshs. 700,000/- in an interest-earning joint account in the names of the advocates for the parties within thirty (30) days from the date of this ruling. 3. In default of compliance with order (b) above within the stipulated period, the order of stay shall automatically lapse without the necessity of a further order of the Court. 4. The costs of the application shall abide by the outcome of the appeal. **Emmanuel Bitta** **Judge of the High Court** Dated, signed and delivered via Microsoft Team at Mombasa this 30th day of July 2026 In the presence of: Nechesah C/A Vincent Okello for the Applicant N/A for the Respondent