https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10800

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT NAIROBI COUNTY** **MILIMANI HIGH COURT** **(CIVIL APPELLATE DIVISION)** **SMALL CLAIMS APPEAL NO E 427 OF 2026** **BARON CAPITAL LIMITED …………………….. APPELLANT** **VERSUS** **JOSIAH MWALE ………………………………………. RESPONDENT** **RULING** 1. The appellant Baron Capital Limited has approached this court vide a Notice of Motion dated 15th June 2026, brought under the provision of Order 42 Rule 6 of the Civil Procedure Rules 2010, wherein it craves for orders of stay of execution of the judgment delivered on 21st May 2026 in Milimani SCCC E7462 of 2025 and the decree issued pursuant thereto. The application is supported by the affidavit of Samuel Kinyanjui Ngotho sworn on even date. 2. When this application came up for hearing on 7.7.2026, the respondent who acts in person submitted that he had filed a notice of preliminary objection in reaction to the appellant’s application and had served the same. Ms Cheptoo counsel for the appellant submitted that whereas the respondent had indeed served her law firm with a notice of preliminary objection, the same was yet to be filed. This court then adjourned the hearing of the appellant’s application to 8th July 2026 to allow the respondent time to regularize his position. 3. On 8th July 2026, the respondent did not attend court and the court established that no notice of preliminary objection had been uploaded on the Case Tracking System (CTS) wherefore the appellant’s application stood unopposed. 4. This court has duly considered the application herein, the affidavit sworn in support thereof, the annexures attached thereto and the oral submissions of Ms Chelule for the appellant and the singular issue that arises for determination is whether the appellant has met the threshold for grant of orders of stay of execution of the judgment of the trial court pending the hearing and determination of the appeal. 5. The operative Order 42 Rule 6 of the Civil Procedure Rules provides as follows; 6. **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.** 7. **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.** 8. **Notwithstanding anything contained in subrule (2), the court shall have power, without formal application made, to order upon such terms as it may deem fit a stay of execution pending the hearing of a formal application.** 9. **For the purposes of this rule an appeal to the Court of Appeal shall be deemed to have been filed when under the Rules of that Court notice of appeal has been given.** 10. **An application for stay of execution may be made informally immediately following the delivery of judgment or ruling.** 11. **Notwithstanding anything contained in subrule (1) of this rule the High Court shall have power in the exercise of its appellate jurisdiction to grant a temporary injunction on such terms as it thinks just provided the procedure for instituting an appeal from a subordinate court or tribunal has been complied with.** 12. The appellant has already preferred an appeal and at this stage I cannot determine the merits of the same, save that memorandum of appeal as filed is not frivolous. The appellant is ready and willing to deposit the decretal sum in court as security for the due settlement of the judgment sum, in the event it’s appeal fails. 13. This application has been made without delay and in the absence of any opposition I do find that the balance of convenience tilts towards the appellant. I thus find that this application is well merited and I allow it and I proceed to make the following orders; 14. THAT an order of stay of execution is hereby granted in respect of the judgment delivered on 21st May 2026 in Milimani SCCC/ E7462/2025 until the appeal herein is heard and determined on condition that the appellant deposits the sum of Ksh 700,000/=, in court within 45 days from the date hereof. 15. THAT in the event of default in compliance with order i) hereinabove, the stay orders shall automatically lapse and the respondent shall be at liberty to execute. 16. The appellant shall meet it’s own costs of this application given that it is undefended. IT IS HEREBY SO ORDERED Delivered, Signed and Dated at Milimani this 8Th day of July 2026. MWANAISHA S SHARIFF JUDGE