https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7426

REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT KISUMU CIVIL MISC. APPLN NO. E032 OF 2025 ALFRED OKEYO ADONGO …................. APPLICANT/RESOPONDENT MWAMU & COMPANY ADVOCATES ….. RESPONDENT/APPLICANT - VERSUS - R U L I N G 1. This is a ruling on the application by the respondent/applicant, MWAMU & COMPANY ADVOCATES (hereinafter “the applicant”) dated 25/9/2025. The Motion was brought under Order 42 Rule 6 of the Civil Procedure Rules, 2010 sections 1A, 1B, 3A, and 80 of the Civil Procedure Act 2. The applicant sought several orders; to wit, stay of execution of the orders of 27/6/2025 pending its appeal to the Court of Appeal; the hearing and determination of the taxation of its Bill of Costs filed in the Court of Appeal and pending the hearing and determination of its application for review in Misc. Appln. No. 130 of 2017. It further sought the review, variation or setting aside of the orders of 27/6/2025 and substitution with an order awarding it interest at court rates on the sums found due to it. 3. The grounds for the application were set out in the body of the Motion and the supporting affidavit of James Aggrey Mwamu SC sworn on 25/9/2025. These were, inter alia, that; following the ruling of this Court of 27/6/2025, the applicant preferred an appeal to the Court of Appeal Page 1 of 14 vide a Notice of Appeal dated 3/7/2025. That it also filed its Bill of Costs at the Court of Appeal vide Misc. Appln. No. 131 of 2017 as well as references against the decisions in Misc. Appln. Nos. No. 67, 68 and 72 of 2025 that were pending determination and finally that the order granting the interest to the applicant herein was unfair. 4. The application was opposed vide a replying affidavit of Alfred Okeyo Adongo sworn on 8/10/2025. He deposed that the applicant had deliberately withheld decretal sums belonging to the estate since 2014 and that the present application is another attempt to deny the estate the fruits of judgment despite the orders of 27/6/2025 directing release of the funds. 5. That the applicant had failed to satisfy the conditions precedent for grant of stay of execution as it had not shown any substantial loss it would suffer if the money is released. That in any case, since the decree is monetary in nature, any sums paid can be refunded if the appeal succeeds. 6. That the applicant had not offered security for the due performance of the decree and thus the judgment creditor should not be denied the fruits of his judgment without adequate security being deposited. 7. That there has been delay in prosecuting the matter as the parties were directed on 12/5/2025 to file submissions within 21 days, but the respondent allegedly failed to do so thus evidencing lack of diligence. 8. That in any case, no Memorandum of Appeal had been lodged and 60 days had elapsed since the filing of the Notice of Appeal thus the Page 2 of 14 intended appeal was deemed withdrawn under Rule 85 of the Court of Appeal Rules. Further that the applicant’s Bill of Costs in the Court of Appeal is statute barred as it was filed over 11 years after completion of instructions and that there was no proof that the same had been filed as no case number had been disclosed. 9. That the applicant’s reliance on a Judge’s demise as an excuse for the delay is without merit as it had 90 days to act and that the taxation could still proceed during the court recess under Rule 20 of the Court of Appeal Rules. 10. That the deceased’s estate is entitled to interest as the decretal sums have been withheld for over 11 years. That the respondent is engaging in bad faith litigation and abusing the court process through endless applications meant to frustrate the deceased’s estate as is evident from the its letter dated 27/5/2017 wherein it stated that by the time the matters were concluded, the applicant would “have nothing to pay” his lawyer. 11. That if the Court is inclined to grant stay, it should order the respondent to deposit at least Kshs. 1,000,000/- with his advocates as security. 12. The application was argued orally. Mr. Mwamu SC, Learned Counsel for the applicant submitted that the Motion was for review and that there was sufficient cause to grant the orders sought. That it was filed timeously. That there will be substantial loss if stay is not granted and as such there should be no order for security. Page 3 of 14 13. That pending the determination of the pending cases filed by the applicant, the Court ought to stay its orders of 27/6/2025 or give fresh directions as it would be unfair to maintain the order that the applicant pay interest. 14. Mr. Gode, Learned Counsel for the respondent submitted that whereas there was a Notice of Appeal against the order of 27/6/2025, there was no Memorandum or Record of Appeal in the Court of Appeal and as such, stay of execution could not be granted in a vacuum. That the Court of Appeal has frowned upon parties filing frivolous appeals as held in John Mutai & 26 Others v Mwenje & 4 Others [2016] eKLR. 15. That if the appeal was filed, the threshold under Order 42 Rule 6 had not been met as there was no evidence to substantiate claims of substantial loss whereas the respondent had the right to enjoy fruits of his judgment both in the primary suit and in the appeal. 16. That the applicant was granted 90 days stay of execution and was now seeking more time stating that it had not prosecuted its bills for over 11 years which demonstrates indolence on its part. That consequently, the application was an abuse of court process. 17. That the judgment entered on the 27/6/2025 was for Kshs. 780,000/- with interest of 14% p.a. which amount stood at Kshs. 842,827/- at the time of the hearing whereas the 3 pending Bills for the respondent amounted to Kshs. 196,788/- leaving a balance of Kshs. 646,039/-. That consequently, Page 4 of 14 the respondent should deposit this balance with the respondent’s advocate. 18. As regards interest, Mr. Gode submitted that the respondent has been in possession of the money for the longest time and it is fair for interest to be awarded at court rate. 19. In rejoinder, Mr. Mwamu submitted that counsel for the respondent had mixed the principles under Rule 5 (2) (b) of the Court of Appeal Rules and Order 42 Rule 6 of the Civil Procedure Rules. That in the present case, the applicant was merely seeking stay of execution. That the Bill pending before the Court of Appeal was for Kshs. 24 million and if one reduces the amount claimed by the respondent, there will still be an excess favour of the applicant which the respondent will be unable to refund. That the Court ought to grant the stay sought and interfere with the award of interest as the dispute has been alive in Court. 20. I have considered the rival contestations of the parties. This is a simple application for review and stay of the orders of the 27/6/2025. 21. On the question of review, section 80 of the Civil Procedure Act Cap 21 provides gives the Court jurisdiction to review its orders and decrees. The procedure is set out in Order 45 Rule 1 of the Civil Procedure Rules, 2010 which provides that review will be allowed where there is discovery of new and important matter or evidence which, after the exercise of due diligence, was not within the knowledge of an applicant or, on account of Page 5 of 14 some mistake or error apparent on the face of the record, or for any other sufficient reason. Such an application must be made timeously. 22. In Republic v Public Procurement Administrative Review Board & 2 others [2018] eKLR it was held: - “The rules restrict the grounds for review. The rules lay down the jurisdiction and scope of review limiting it to the following grounds; (a) discovery of new and important matter or evidence which after the exercise of due diligence, was not within the knowledge of the applicant or could not be produced by him at the time when the decree was passed or the order made or; (b) on account of some mistake or error apparent on the face of the record, or (c) for any other sufficient reason and whatever the ground there is a requirement that the application has to be made without un reasonable delay.” 23. In Pancras T. Swai v Kenya Breweries Limited [2014] eKLR the Court of Appeal held: - “Order 44 rule 1 (now Order 45 rule 1 in the 2010 Civil Procedure Rules) gave the trial Court discretionary power to allow review on the three limps therein stated or “for any sufficient reason.” … As repeatedly pointed out in various decisions of this Court, the words, “for any sufficient reason” must be viewed in the context firstly of Section 80 of the Civil Procedure Act, Cap 21, which confers an unfettered right to Page 6 of 14 apply for review and secondly on the current jurisprudential thinking that the words need not be analogous with the other grounds specified in the order.” 24. In the said case of Pancras T. Swai (supra), the Court of Appeal cited with approval the case of Sarder Mohamed v Charan Singh Nand Sing and Another (1959) EA 793 wherein it was held that section 80 of the Civil Procedure Act conferred an unfettered discretion in the Court to make such order as it thinks fit on review and that the omission of any qualifying words in the section was deliberate. 25. In the case of Shanzu Investments Limited v Commissioner for Lands (Civil Appeal No. 100 of 1993) the Court of appeal upheld its earlier decision in Wangechi Kimata & Another v Charan Singh (C.A. No. 80 of 1985) (unreported) where it was held: - “Any other sufficient reason need not be analogous with the other grounds set out in the rule because such restriction would be a clog on the unfettered right given to the Court by Section 80 of the Civil Procedure Act; and that the other grounds set out in the rule did not in themselves form a genus or class of things which the third general head could be said to be analogous.” 26. I have considered the parties’ contestations. The application is anchored on the ground of sufficient cause. Though not properly elucidated, this Court views, from the pleadings, that the sufficient cause is the pending appeal in the Court of Appeal. Page 7 of 14 27. It is clear from a plain reading of the frameworks in section 80 and Order 45 rule 1 that the mechanism of review is available only to a party who has elected not to prefer an appeal against the impugned decision. The review mechanism is not available to a party who has preferred an appeal. Indeed, our superior courts have been categorical that pursuing the two mechanisms concurrently would amount to abuse of court process. 28. The Supreme Court of Kenya emphasized this principle in University of Eldoret & another v Hosea Sitienei & 3 others (2020) eKLR as follows: - “It is evident that following the decision of the Court of Appeal, the applicants were faced with two options – to, either file for review of the decision to the same court or pursue an appeal before this court within either of the applicable jurisdictional contours. The applicants, as advised by their advocates, chose the former. We agree with the applicants’ advocates that they could not concurrently pursue both options as that would be an outright abuse of judicial process. However, following from our decision in Fahim Yasin Twaha v. Timamy Issa Abdalla & 2 Others [2015] eKLR, where a litigant has more than one option to pursue, he/she must settle on one of them. The decision on which course to pursue is taken in advance and once it is taken, the other option is no longer available or placed in abeyance to be reverted to at a later stage in the event the initial option does Page 8 of 14 not succeed. This means that when choosing, the litigant is expected to choose the best available option since she may not have any further recourse.” 29. Accordingly, having opted to file an appeal against the judgment of 27/6/2025, the respondent cannot proceed to seek review of the same. This limb of the application thus lacks merit. 30. Turning to the prayer for stay of execution, the principles upon which the Court may stay the execution of orders appealed from are well settled. Order 42 Rule 6 of the Civil Procedure Rules stipulates that an applicant should satisfy the Court that substantial loss may result unless the order is made and such applicant must give security for the due performance of such decree or order as may ultimately be binding on him. In addition, such an application must be made timeously. 31. In Butt v Rent Restriction Tribunal [1979], the Court of Appeal stated what ought to be considered in determining whether to grant or refuse stay of execution pending appeal. It stated that: - a) The power of the court to grant or refuse an application for a stay of execution is discretionary; and the discretion should be exercised in such a way as not to prevent an appeal. b) Secondly, the general principle in granting or refusing a stay is, if there is no other overwhelming hindrance, a stay must be granted so that an appeal may not be rendered Page 9 of 14 nugatory should the appeal court reverse the judge’s discretion. c) Thirdly, a judge should not refuse a stay if there are good grounds for granting it merely because, in his opinion, a better remedy may become available to the applicant at the end of the proceedings. d) Finally, the Court in exercising its discretion whether to grant or refuse an application for stay will consider the special circumstances and its unique requirements. The court in exercising its powers under Order XLI Rule 4(2) (b) of the Civil Procedure Rules, can order security upon application by either party or on its own motion. Failure to put security as ordered will cause the order for stay of execution to lapse. 32. On substantial loss, this limb requires an applicant to clearly state what loss, if any, it stands to suffer. In Shell Ltd v Kibiru and Another [1986] KLR 410, the Court of Appeal set out two different circumstances when substantial loss could arise as follows: - “It is usually a good rule to see if Order XLI Rule 4 of the Civil Procedure Rules can be substantiated. If there is no evidence of substantial loss to the applicant, it would be a rare case when an appeal would be rendered nugatory by some other event. Substantial loss in its various forms is the cornerstone of both Page 10 of 14 jurisdictions for granting stay. That is what has to be prevented. Therefore, without this evidence, it is difficult to see why the respondents should be kept out of their money.” 33. The applicant did not address this issue fully on what substantial loss it was likely to suffer if the stay is not granted. It was merely submitted that the applicant’s claim against the respondent in the Court of Appeal was for Kshs. 24 million as against the respondent’s claim of approximately Kshs. 600,000/-. That the respondent would not be able to refund the balance. The applicant did not offer up any security stating that the same was not necessary. 34. The Court notes that there was no evidence on record to show that the claim in the Court of Appeal was for Kshs. 24 million. That was a mere submission from the bar. In any event, what this Court has to consider is, would settling the amount ordered by this Court cause the applicant substantial loss? If paid over to the respondent and the appeal succeeds, will the respondent be able to refund the same? This is an aspect that both parties did not address. 35. As to whether the application was made without unreasonable delay, Judgment herein was delivered on 27/6/2025 and a temporary stay for 90 days was given. The present application was filed on 25/9/2025 which in the opinion of this Court was within a reasonable period. As such, the application was made timeously. Page 11 of 14 36. The other element to be satisfied by the applicant was security for the due performance of the decree. In Gianfranco Manenthi & Another vs Africa merchant Assurance Co. Ltd [2019] eKLR, the court observed: - “The applicant must show and meet the condition of payment of security for due performance of the decree. Under this condition, a party who seeks the right of appeal from a money decree of the lower court for an order of stay must satisfy this condition on security. In this regard, the security for due performance of the decree under Order 42 Rule 6(1) of the Civil Procedure Rules, it is trite that the winner of litigation should not be denied the opportunity to execute the decree in order to enjoy the fruits of his judgment in case the appeal falls. Further Order 42 should be seen from the point of view that a debt is already owed and due for payment to the successful litigant in a litigation before a court which has delivered the matter in his favour. This is therefore to provide a situation for the court that if the appellant fails to succeed on appeal there could be no return to status quo on the part of the plaintiff to initiate execution proceedings where the judgment involves a money decree. The court would order for the release of the deposited decretal amount to the respondent in the appeal…. Page 12 of 14 Thus, the objective of the legal provisions on security was never intended to fetter the right of appeal. It was also put in place to ensure that courts do not assist litigants to delay execution of decrees through filing vexatious and frivolous appeals. In any event, the issue of deposit of security for due performance of decree is not a matter of willingness by the applicant but for the court to determine. Counsel for the applicant submitted that he is ready to provide a bank guarantee as security for due performance of the decree.” 37. Similarly, in Arun C. Sharma v Ashana Raikundalia t/a Rairundalia & Co. Advocates & 2 Others [2014] eKLR, the court stated: “The purpose of the security needed under Order 42 is to guarantee the due performance of such decree or order as may ultimately be binding on the applicant. It is not to punish the judgment debtor… Civil process is quite different because in civil process the judgment is like a debt hence the applicants become and are judgment debtors in relation to the respondent. That is why any security given under Order 42 Rule 6 of the Civil Procedure Rules acts as security for the due performance of such decree or order as may ultimately be binding on the applicants. I presume the security must be one which can serve that purpose.” 38. From the foregoing, it is evident that the issue of security is discretionary and it is upon the Court to determine the same. Notably, in his Page 13 of 14 application, the applicant stated that it did not need to offer security. That the same was not necessary. This is flawed in my opinion considering that the order sought to be stayed is a money decree. The applicant has therefore failed to satisfy this limb. 39. From the foregoing, the Court is of the opinion that the applicant has not satisfied the grounds under Order 42 of the Civil Procedure Rules for the grant of the stay sought. 40. Accordingly, the application dated 25/9/2025 is without merit and is therefore dismissed with costs to the respondent. It is so ordered. DATED and DELIVERED at Kisumu this 29th day of May, 2026. A. MABEYA, FCI Arb JUDGE Page 14 of 14