Cefa Enterprises Ltd v Kimuyu & 3 others (Civil Appeal 150 of 2018) [2026] KEHC 9591 (KLR) (25 June 2026) (Ruling)

**** **REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT MACHAKOS** **CIVIL APPEAL NO. 150 OF 2018** **CEFA ENTERPRISES LIMITED ……… APPELLANT/APPLICANT** ***VERSUS*** **BENEDICT KYALO KIMUYU ……………………1ST RESPONDENT** **BMG HLDINGS LMITED ……………………….....2ND RESPONDENT** **MULATI SABABI ……………………………….......3RD RESPONDENT** **BENEDICT MBALU ………………………………..4TH RESPONDENT** *(Being an appeal from the orders, ruling and decision of the Hon. Ocharo (PM) in Machakos Chief Magistrate Court at Machakos in CMCC No.534 of 2015 delivered on* *24th November 2015.)* **RULING** 1. By the Notice of Motion dated 2nd July 2025, the Appellant/Applicant seeks an order for stay of execution of the judgment delivered herein on 24th April 2025, pending hearing and determination of appeal. 2. The impugned judgment dismissed the Appellant’s appeal against the judgment and decree of the lower court in a personal injury claim. The appellant has intimated that it has already filed a Notice of Appeal. 3. The gist of the application is that should the order for stay of execution not be granted the appellant stands to suffer irreparable and/or substantial loss as the respondent may not refund the decretal sum if the appeal succeeds and because the appeal risks being rendered nugatory due to the same reason. In the supporting affidavit the appellant deposes that its appeal has high chances of success because it was never heard in the lower court; that it was not served with summons; that two applications to cross examine the process server were dismissed and that it is therefore in the interest of justice that the stay be granted so that its appeal to the Court of Appeal is not rendered nugatory. 4. In their written submissions, learned Counsel for the appellant has cited the case of **Butt v Rent Restriction Tribunal [1979] eKLR** and the case of **James Wangalwa & Another v Agnes Naliaka Chesoto [2012] eKLR** and reiterates that the decretal sum is kshs.2,803,331/- and hence the appellant stands to suffer substantial loss. Counsel has also submitted that this application was filed timeously. 5. The application is vehemently opposed by the respondent. In the replying affidavit sworn by the 1st Respondent on 30th July 2025, it is deposed that the application is bad in law, unmerited and an abuse of the court process; that the appellants apprehension that the decretal sum of Kshs.2,803,331/- may not be refunded is unfounded and speculative; that the entire decretal sum should be deposited otherwise the appeal shall be used as a guise to frustrate execution yet the respondent is entitled to enjoy the fruits of a valid judgment. This is echoed in the written submissions of learned Counsel for the Respondent where it is argued that the Appellant has not satisfied the conditions for stay as the appellant merely assets/states but has not demonstrated that the respondent is not in a position to refund the decretal sum were the application to be rejected and the appeal succeeds; that the appellant has not offered any security or made a proposal to furnish security as a compromise for stay pending appeal. 6. The Appellant has already moved to the Court of Appeal hence by dint of **Rule 5(2) b of the Court of Appeal Rules,** this application should ideally have been made in that court. However, **Rule 43** of those Rules implies that such an application can also be made in this court. The Rule states:- “**43.*The Court may entertain an application for stay of execution, injunction, stay of further proceedings or extension of time for the doing of any act authorized or required by these Rules, notwithstanding the fact that no application has been made in the first instance to the superior court.”*** 1. That said, an order for stay of execution is granted upon known legal principles. To begin with **Order 42 Rule 6(2) of the Civil Procedure Rules** provides that the applicant must demonstrate that they stand to suffer substantial loss, the application must be brought timeously and the applicant must be willing to deposit security. Secondary, there is a long line of cases on what constitutes substantial loss and on what happens where the Applicant has not offered security for due performance of the decree and if the effect of not filing the application within a reasonable time. The discretion of this court is therefore fettered by the above three conditions. My finding is supported by the case of **Vishram Ravji Halai v Thornton & Turpin [1990] KLR 365** where it was stated: ***“That whereas the Court of Appeal’s power to grant stay pending appeal is unfettered, the High Court’s jurisdiction to do so under Order 42 rule 6 of the Civil Procedure Rules is fettered by three conditions namely, establishment of a sufficient cause, satisfaction of substantial loss and the furnishing of security. Further the application must be made without unreasonable delay. To the foregoing I would add that the stay may only be granted for sufficient cause and that the Court in deciding whether or not to grant the stay and that in light of the overriding objective stipulated in sections 1A and 1B of the Civil Procedure Act, the Court is no longer limited to the foregoing provisions. The courts are now enjoined to give effect to the overriding objective in the exercise of its powers under the Civil Procedure Act, the court is no longer limited to the foregoing provisions. The courts are now enjoined to give effect to the overriding objective in the exercise of its powers under the Civil Procedure Act or in the interpretation of any of its provisions. According to section 1A (2) of the Civil Procedure Act “the Court shall, in the exercise of its powers under this Act or the interpretation of any of its provisions, seek to give effect to the overriding objective”*** 1. The conditions in **Order 42 Rule 6(2) Civil Procedure Rule** met before an order for stay of execution can be granted. 2. On the issue of substantial loss the appellant/applicant has contended that the respondent shall not be in a position to refund the decretal sum should the appeal succeed. The Respondent has disputed this and stated that it has not been demonstrated that he does not have the means to refund the money. It is instructive that the respondent was successful in the court below and that the applicant’s appeal against the judgment was also unsuccessful. So to speak the respondent should now be left to enjoy the fruits of his judgment and the applicant has to satisfy this court why that should not be. I do agree with Odunga J, as he then was, in the case of **African Merchant Assurance Co. Limited v Nyamai Kea and Ann Syombua Kioko (suing on behalf of the estate of Vincent Kyalo Nyamai – Deceased) Misc. Appl. 540 of 2019 eKLR,** where he stated: **“*What amounts to reasonable grounds for believing that the respondent will not be able to refund the decretal sum is a matter of fact which depends on the facts of a particular case. In my view even if it were shown that the respondent is a man of lesser means, that would not necessarily justify a stay of execution as poverty is not a ground for denial of a person’s right to enjoy the fruits of his success.”*** 1. My finding therefore is that the mere assertion by the applicant that the respondent shall not be in a position to refund the decretal sum does not suffice. More so as the applicant has kept the respondent waiting for close to eight years since the judgment was rendered. The applicant has also not offered to deposit security for due performance of the decree were the appeal to be unsuccessful against it. 2. The upshot is that the application has no merit and it is dismissed with costs to the respondent. Orders accordingly. **Ruling signed, dated and delivered virtually through Microsoft teams on this 25th day of June, 2026.** **E. N. MAINA** **JUDGE** **In the presence of:** Mr. L. M. Wambua for the 1st Respondent No appearance for the Appellant/Applicant Catherine - Court Assistant/Interpreter