Basweti v BMO (A Minor suing through his father and next friend PNO) (Civil Appeal E013 of 2026) [2026] KEHC 13259 (KLR) (16 July 2026) (Ruling)

Basweti v BMO (A Minor suing through his father and next friend PNO) (Civil Appeal E013 of 2026) [2026] KEHC 13259 (KLR) (16 July 2026) (Ruling) Neutral citation: [2026] KEHC 13259 (KLR) Republic of Kenya In the High Court at Nyamira Civil Appeal E013 of 2026 TW Cherere, J July 16, 2026 Between Henry Monari Basweti Appellant and BMO (A Minor suing through his father and next friend PNO) Respondent Ruling 1.Henry Monari Basweti, the appellant, has moved this Court by the Notice of Motion dated 12th June 2026 seeking an order of stay of execution of the judgment and decree in Nyamira MCCC E159 of 2022 pending the hearing and determination of this appeal. The application is brought pursuant to Order 42 Rule 6 of the Civil Procedure Rules, sections 1A, 1B and 3A of the Civil Procedure Act and all other enabling provisions of the law. 2.In the supporting affidavit sworn on even date, the appellant depones that judgment was delivered on 05th March 2026 in favour of the respondent in the sum of KES. 250,000 together with costs and interest. That being dissatisfied with the assessment of damages, he lodged a Memorandum of Appeal dated 14th March 2026 on the ground that the award was excessive and unsupported by the evidence on record. The appellant further depones that unless execution of the decree is stayed, the appeal will be rendered nugatory, and expresses willingness to provide security for the due performance of the decree by depositing the decretal sum in court should the Court so direct. 3.The record contains an Affidavit of Service sworn by Amos Wasike on 17th June 2026 evidencing service of the application upon the respondent's advocates by electronic mail, but despite such service, no replying affidavit or grounds of opposition were filed and the application remains unopposed. 4.Although the application is unopposed, that fact alone does not entitle the appellant to the orders sought, as the grant of a stay of execution is a matter of judicial discretion to be exercised within the framework of the law, and the Court must be satisfied that the statutory conditions for the grant of such relief have been fulfilled. 5.The applicable principles are embodied in Order 42 Rule 6 of the Civil Procedure Rules, which requires an applicant to demonstrate that the application has been made without unreasonable delay, that substantial loss may result unless the order sought is granted and that security has been offered for the due performance of the decree. In Kenya Shell Limited v Benjamin Karuga Kibiru & anorther [1986] KECA 94 (KLR), the Court of Appeal observed that substantial loss is the cornerstone of the jurisdiction to grant a stay of execution, while emphasizing that the Court must balance the right of appeal against the equally important principle that a successful litigant should not be unnecessarily deprived of the fruits of a lawful judgment. 6.Order 42 Rule 6 of the Civil Procedure Rules requires an applicant for stay of execution to demonstrate that the application was made without unreasonable delay, that substantial loss may result unless the order is granted, and that security has been offered for the due performance of the decree. 7.Judgment was delivered on 05th March 2026, the Memorandum of Appeal was filed on 14th March 2026, while the present application was not filed until 12th June 2026, approximately three months after judgment. No explanation has been offered for that delay, which, in the circumstances, has not been shown to have been reasonable. 8.The appellant states that the appeal will be rendered nugatory if execution proceeds. Beyond that assertion, however, no evidence has been placed before the Court to demonstrate the nature of the loss likely to be suffered or that the respondent would be unable to refund the decretal sum should the appeal ultimately succeed. Substantial loss cannot be inferred from bare assertions, and I am therefore not persuaded that this requirement has been satisfied. 9.The appellant has expressed willingness to deposit the decretal sum as security for the due performance of the decree. While that satisfies one of the requirements under Order 42 Rule 6 of the Civil Procedure Rules, the conditions for the grant of a stay are cumulative, and compliance with that requirement alone cannot justify the exercise of the Court's discretion. 10.From the foregoing, I find that the appellant has failed to satisfy the requirements for the grant of a stay of execution under Order 42 Rule 6 of the Civil Procedure Rules, and there is therefore no basis for depriving the respondent of the fruits of the judgment. 11.Consequently, the Notice of Motion dated 12th June 2026 lacks merit and is hereby dismissed. 12.Mention on 05th October 2026 before the DR to confirm filing of the Record of Appeal and submissions. DELIVERED AT NYAMIRA THIS 16TH DAY OF JULY 2026WAMAE.T. W. CHEREREJUDGEAppearancesCourt Assistant - HildaFor Appellant - Ms. Moraa for KRK AdvocatesFor Respondent - N/A for Juliet Otieno & Co. Advocates