https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12100

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT MACHAKOS** **CIVIL APPEAL NO. E147 OF 2022** ALFONCE MUTUAMAKAU………………...……………..….... APPLICANT VERSUS JAVAN KOROS *(Suing as the legal Representative and Administrator of the estate of WILSON KIMTAI KIPKOROS* *aka WILLY KIMUTAI (Deceased*)……….............................RESPONDENT **RULING** 1. This ruling is on the Applicant’s Notice of Motion application dated 12th November 2025 seeking for orders as follows:- 2. *Spent* 3. ***THAT*** *there be a stay of execution of the decree and/or all the consequential orders pursuant to the judgment delivered on 27th May 2025 against the Appellant by Hon. Lady Justice Noel Adagi pending the hearing inter-partes and determination of this application.* 1. ***THAT*** *there be a stay of execution of the decree and/or all the consequential orders pursuant to the judgment delivered on 27th May 2025 against the Appellant by Hon. Lady Justice Noel Adagi pending the hearing and determination of the intended Appeal at the Court of Appeal.* 1. ***THAT*** *the Honourable Court be pleased to make such further orders as it deems fit in the interests of justice.* 1. ***THAT*** *the costs of this application be provided for.* 2. The application is supported by the supporting affidavit sworn by the Applicant on 12th November 2025 and a Supplementary Affidavit sworn on 11th March 2026 and is premised on the grounds on the face of the application as set out below that: 3. the Applicant has since filed an application dated 24th June 2025 seeking to have the Court of Appeal grant him an extension of time to file the appeal against the whole judgment. The said application is pending hearing and determination. 4. despite being served with the application dated 24th June 2025, the Respondent has issued a proclamation notice dated 11th November 2025 through the firm of M/S Little Vineyards Auctioneers signifying his intention to cart away and sell the Appellant’s household goods and livestock upon the lapse of seven (7) days. 5. the Applicant had paid KES.1, 524, 326.00 pursuant to the consent dated 15th December 2022 that was agreed by the parties as a condition for stay of execution pending the hearing and determination of the appeal herein. 6. the Respondent in his proclamation seeks to be paid the sum of KES.2, 105, 745.00 as a balance of the decretal sum and KES.346, 500.00 as auctioneer fees. 7. the Applicant is ready, willing and able to give such security as the Honourable Court may deem fit and proper in the circumstances based on the outstanding balance as a condition for the grant of the orders sought, including depositing a sum in court and/or in a joint interest earning account pending the outcome of the intended appeal. 8. if the stay of execution sought is not granted, the Applicant’s appeal will be rendered nugatory, and the Applicant will suffer he said application is not only incompetent but also self-defeating, defective, misconceived and a flagrant abuse of the Court process. 9. there is no Appeal pending in the Court of Appeal. What is pending in the Court of Appeal is an Application by the Applicant for leave to file and serve the Notice of Appeal out of time and the same cannot be the basis for granting the orders sought in the Motion before the court. 10. if the stay of execution sought is not granted, the Applicant’s appeal will be rendered nugatory, and the Applicant will suffer substantial loss since the Respondent is unlikely to refund the decretal amount if the Appellant succeeds and, in any event, the refund process will be strenuous as it will rely on his goodwill. 11. this application has been made without unreasonable delay. 12. The application is opposed by the Respondent vide the Replying affidavit sworn on 15th January 2026. The Respondent avers as follows, that: 13. the Applicant has not met the threshold for granting orders of stay pending appeal. 1. the application herein is brought in bad faith and it’s meant to obstruct and delay the course of Justice. This being a money decree the Applicant has not shown that he is ready to provide such reasonable security for the performance of the decree in the event his prayers in the Court of Appeal are not granted. 2. the Applicant has not proved specific details and particulars of loss and since no pecuniary or tangible loss is shown to the satisfaction of the court, the court should not grant a stay. 3. the Respondent continue to suffer hardship as the deceased herein was his sole breadwinner since at his age, therefore he is unable to engage in any meaningful economic activities. 4. in any event he is entitled to fruits of his judgment which was lawfully obtained. The Respondent verily believes that in the circumstances the present application is totally without merits, and is only intended to buy time for the Appellant/Applicant is contemptuous abuse of the Court process and a complete waste of precious judicial time. The Respondent urges the Court to dismiss the Application *ex-debito* justitiae with costs. 5. the Applicant's Application is a fragrant abuse of the Court process and meant to grind to a halt the wheels of justice. 6. if this Honourable Court is inclined to allow the application, then the Respondent prays that the Applicant be compelled to deposit the entire decretal sum in Court for the due performance of the decree and pay the Auctioneers fees. 7. The Court directed the application to be canvassed by way of written submissions. The Applicant opted not to file submissions but to rely on the application as filed. The Respondent filed submissions dated 11th June 2026. 8. The Respondent submits that the application is devoid of merit and does not satisfy the requirements set out under Order 42 Rule 6 of the Civil Procedure Rules 2010. The Applicant seeks to deny the Respondent the fruits of a lawful judgment without any justifiable cause or even willingness to furnish adequate security as required by law. 9. The Respondent has submitted on whether the Applicant has satisfied the conditions for the grant of stay of execution pending the intended appeal under Order 42 Rule 6 of the Civil Procedure Rules and argues that the basis upon which the Applicant is before this court is that he intends to appeal to the Court of Appeal and therefore execution of the decree obtained at the High Court ought to be stayed. 10. Unless there is a separate application at the Court of Appeal, a mere notice or intention to appeal does not automatically give rise to an automatic stay of execution obtained at the High Court. My Lady, Order 42 Rule 6(1) is clear on the issue of stay pending appeal. It states as follows:- *"No appeal or second appeal shall operate as a stay of execution or* *proceedings under a decree or order appealed from except in so far as the court appealed from may order but, the court appealed from may for sufficient cause order stay of execution of such decree or order, and whether the application for such stay shall have been granted or refused by the court appealed from, the court to which such appeal is preferred shall be at liberty, on application being made, to consider such application and to make such order thereon as may to it seem just, and any person aggrieved by an order of stay made by the court from whose decision the appeal is preferred may apply to the appellate court to have such order set aside.* " 1. Granting orders for stay, much as it is in the discretion of the court, it requires fulfillment of certain mandatory requirements as set out under Order 42 Rule 6(2) of the Civil Procedure RUIes,2010. It states that; *"No order for stay of execution shall be made under subrule (7) 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. "* 9. Reliance was placed in the Court of Appeal in **Butt V Rent Restriction Tribunal 7979KECA22 (KLR),** Madan JA (as he then was) affirmed that the power to grant stay is discretionary and must be exercised in a manner that does not prevent a successful litigant from enjoying the fruits of his judgment. 1. Similarly, in **Kenya Shell Limited v Benjamin Karuga Kibiru & another 179861 KECA 94 (KLR),** the Court emphasized that substantial loss is the cornerstone of an application for stay and must specifically be demonstrated. ## It is submitted that the Applicant has not demonstrated substantial loss. Reference is made to the case of **Kenya Shell Limited v Benjamin Karuaa Kibiru & Another (supra)** held that: *"Substantial loss in its various forms is the cornerstone of both jurisdictions for granting stay.* " 1. In that regard, the Applicant has failed to demonstrate what substantial loss he stands to suffer if the decree is executed. A mere apprehension of loss is insufficient. The Applicant ought to have placed before court evidence showing the nature and extent of the loss likely to be suffered. He ought to have furnished evidence showing that execution of the said decree would render the appeal nugatory. At the very least, the Applicant should have demonstrated the inability to recover the decretal sum in the event the intended appeal succeeds. He has done none of these. The Respondent submits therefore that the Applicant has failed to satisfy the most important condition under Order 42 Rule 6. 2. The Respondent submits that the requirement for security is mandatory and not discretionary pursuant to Order 42 Rule 6(2) (b) of the Civil Procedure Rules. Therefore, an applicant seeking the equitable remedy of stay must demonstrate willingness to secure the decretal amount pending determination of the appeal. Should the court exercise its discretion in favour of the Applicant, then the Applicant, at the very least, should be ordered to deposit the decretal sum as security pursuant to Order 42 Rule 6(2)(b) of the Civil Procedure Rules. 2010. The Court of Appeal in **Focin Motorcycle Co. Limited v Ann Wambui Wanqui & another 120781 KEHC 8358 (KLR)** observed that the purpose of security is to guarantee the due performance of the decree should the appeal ultimately fail. In the case the court, quotes Justice Gikonyo in In **Arun C Sharma -V- Ashana Raikundalia TIA Rairundalia & Co. Advocates & 2 others PO 141 eKLR** where he stated that: *"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 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”.* 1. The Respondent submits that in the instant case the Applicant has not offered any security whatsoever despite seeking to suspend the Respondent's right to enjoy the fruits of a valid judgment. This omission is fatal to the application. Instead, at paragraph 4 of the Applicant's Supplementary Affidavit dated I1th March 2026, the Applicant alleges that the Kes. I, 524,326/= was paid to the Respondent is sufficient security for the hearing and determination of the intended appeal. The amount was paid for stay of the decree in the lower court. The judgment now sought to be stayed is the judgment before the High Court. These are two different decrees. 2. The issue in question pertains to the unpaid balance and not that which was paid. The Respondent is not disputing being paid the said amount but is seeking to recover the decretal sum. That the Respondent is the legal representative of the estate of the deceased and has deponed that he continues to suffer hardship following the death of the deceased who was the sole breadwinner. The decretal sum represents compensation duly awarded by court and further delay without adequate safeguards would occasion substantial prejudice to the Respondent. 3. Accordingly, the Respondent submits that should this court be minded to exercise its discretion in favour of the applicant, the Respondent prays that the Applicant be ordered to deposit the balance of the decretal sum in an interest-earning joint account, failure to which the stay granted shall automatically lapse. 4. The Respondent therefore prays that the Applicant's application be dismissed with costs, or in the alternative; Should the court be inclined to grant stay of execution, the same must be made conditional upon the Applicant depositing as security the balance of the decretal sum plus costs. **Analysis and Determination** 1. I have carefully perused and considered the application, the supporting and supplementary affidavits, the replying affidavit and the submissions Respondent’s Counsel. The court will proceed to determine whether the application is merited. 2. First and foremost, this Court has established and it is not in dispute that there is no appeal yet filed before the Court of Appeal the basis upon which proceedings of stay of execution may be considered by this court. What is pending before the Court of Appeal is an application dated 24th June 2025 seeking extension of time to file the appeal against the whole judgment delivered by this court on 27th May 2025. 3. The above notwithstanding, this court will consider whether the Applicant has satisfied the mandatory requirement for deposit of security pursuant to Order 42 Rule 6(2) (b) of the Civil Procedure Rules. It is trite that an Applicant seeking the equitable remedy of stay must demonstrate willingness to secure the decretal amount pending determination of the appeal or intended appeal. 4. The Applicant in the application states that he is ready, willing and able to give such security as the Honourable Court may deem fit and proper in the circumstances based on the outstanding balance as a condition for the grant of the orders sought, including depositing a sum in court and/or in a joint interest earning account pending the outcome of the intended appeal. 5. On the other hand, the Respondent states that should the court exercise its discretion in favour of the Applicant, then the Applicant, at the very least, should be ordered to deposit the decretal sum as security pursuant to Order 42 Rule 6(2)(b) of the Civil Procedure Rules 2010. 6. The Court of Appeal in **Focin Motorcycle Co. Limited v Ann Wambui Wanqui & Another 120781 KEHC 8358 (KLR)** observed that the purpose of security is to guarantee the due performance of the decree should the appeal ultimately fail. 7. Parties herein do not dispute that the **Kshs.I,524,326/=** was paid as security for stay of the judgement and decree of the lower court. What the Applicant is seeking to stay now is the judgment and decree before this Court of **Kshs.3,151.048.60**. 8. Having taking all factors herein into consideration and in order that the application dated 24th June 2025 is not rendered nugatory, this court will in the interest of administration of justice allow the Applicant’s application dated 12th November 2025 on the following conditions: 9. **The Applicant will in addition to the already deposited security, deposit an additional sum Kenya Shillings One Million (Kshs.1,000,000/=) as security in court or in a joint interest earning bank account to be opened in the names of the parties’ advocates firms on record within forty five (45) days pending the determination of the application dated 24th June 2025 pending before the Court of Appeal.** 10. **The Applicant shall also pay the Auctioneers’ official fees as stated in the application.** 11. **A mention date to be fixed for an update on the Court of Appeal matter arising from these proceedings.** It is so ordered. RULING DATED & SIGNED AT MACHAKOS THIS 21TH JULY 2026 **NOEL ADAGI** **JUDGE** DELIVERED VIRTUALLY ON TEAMS AT MACHAKOS THIS 21TH JULY 2026