https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8616

Bell Tavern Distributors Ltd v Wine Company Ltd (Small Claims Appeal E447 of 2025) [2026] KEHC 8616 (KLR) (Civ) (18 June 2026) (Ruling) Neutral citation: [2026] KEHC 8616 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Law Courts) Civil Small Claims Appeal E447 of 2025 D Mburu, J June 18, 2026 Between Bell Tavern Distributors Limited Appellant and The Wine Company Limited Respondent Ruling 1.The appellant’s Notice of Motion dated 27th November 2025 seeks a stay of execution of the judgment delivered on 30th October 2025 in Nairobi Small Claims Court Case No. SCCCOMM/E22866/2025 pending the hearing and determination of the appeal. The application is supported by an affidavit sworn by one Kenneth Waweru Thuo, a director of the appellant, on 27th November 2025. 2.The respondent opposes the application through a replying affidavit sworn by Taj Bedi, the director of the respondent on 12th March 2026. The application was canvassed by way of written submissions. 3.Applications for stay pending appeal are governed by Order 42 Rule 6 of the Civil Procedure Rules which was restated by F. Gikonyo, J in the case of Antoine Ndianye v African Virtual University [2015] eKLR where he held thus:“The relief of stay of execution pending appeal is governed by Order 42 Rule 6 of the Civil Procedure Rules. The relief is discretionary although, as it has been said often, the discretion must be exercised judicially, that is to say, judiciously and upon defined principles of law; not capriciously or whimsically. Therefore, stay of execution should only be granted where sufficient cause has been shown by the Applicant. And in determining whether sufficient cause has been shown, the court should be guided by the three prerequisites provided under Order 42 Rule 6 of the Civil Procedure Rules, that:a.The application is brought without undue delay;b.The court is satisfied that substantial loss may result to the Applicant unless stay of execution is ordered; andc.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.” Whether the application was made without unreasonable delay 4.The lower court delivered judgment on 30th October 2025. The application was filed on or about 27th November 2025. This was less that a month after the delivery of the impugned judgment. Invariably, this court finds that the application was filed timeously. Substantial Loss 5.The question of substantial loss occurring to the applicant is the paramount consideration by the courts in granting stay pending appeal. In the case of Equity Bank Limited v Taiga Adams Company Limited Civil Appeal No. 722 of 2000 the court stated as follows:-“In the application before me, the applicant has not shown or established the substantial loss that would be suffered if this stay is not granted. The only way of showing or establishing substantial loss is by showing that if the decretal sum is paid to the Respondent – that if execution is carried out – in the event the appeal succeeds the Respondent would not be in a position to pay – reimbursement as he/it is a person of no means. Here, no such allegation is made much less established by the Appellant/Applicant.” 6.The applicant has stated in the application and the supporting affidavit that its appeal is likely to be rendered nugatory if the application is not allowed. Other than stating that its appeal would be rendered nugatory, the applicant has neither pleaded nor demonstrated the likelihood that it will incur substantial loss in the event that the orders are not granted. As rightly submitted by the respondent, it is not enough for the Applicant to merely state that substantial loss will result. It must prove specific details and particulars, where no pecuniary or tangible loss is shown to the satisfaction of the Court, the Court will not grant a stay. 7.In this case, the court is not satisfied that the applicant is bound to suffer any substantial loss if the stay is not granted. The applicant has therefore not met the second condition for the grant of stay pending appeal. Whether the Applicant is willing to provide security 8.The applicant has not made any reference to its willingness to give security for the due performance of the decree. The Applicant has also not expressed willingness to abide by any conditions that the court may set for the grant of stay. The court is not convinced that the Applicant is ready and willing to comply with any conditions that may be imposed. 9.In light of the foregoing, I do not find any merit in the appellant’s application dated 27th November 2025. Consequently, the said application is hereby dismissed with costs. DATED, SIGNED AND DELIVERED VIRTUALLY VIA MICROSOFT TEAMS THIS 18TH DAY OF JUNE, 2026.DAVID MBURUJUDGE