https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7195

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT NYAHURURU** **CIVIL APPEAL NO. E025 OF 2024** **SAMUEL NGUME CHEGE………………………………….APPELLANT** **-VERSUS-** **JESSEE MWANIKI WAMUGUNDA…………………….RESPONDENT** **RULING** 1. Through an application (Notice of Motion) dated 25th November, 2025 the Applicant seeks orders thus; 2. ***Spent.*** 3. ***That the Honourable Court be pleased to grant stay of execution of the decree in Nyahururu CMCC 189 of 2018 Samuel Ngume Chege v Jessee Mwaniki Wamugunda pending hearing of the appeal filed through a Notice of Appeal dated 9th October, 2025.*** 4. ***That costs be provided for.*** 5. The application is premised on grounds that; 6. ***Judgment entered in this matter was entered on 1st October, 2025 allowing the Appellant’s appeal.*** 7. ***That following the entry of judgment the Appellant have on the strength of the judgment proceeded to proclaim simultaneously the Respondents moveable and immoveable property which proclamation was done on 21st November, 2025.*** 8. ***That if the execution proceeds the Respondent will suffer great irreparable harm and loss.*** 9. ***That having filed an appeal it is only mete and just that the orders sought be granted.*** 10. The application is also supported by an affidavit deponed by Jessee Mwaniki Wamugunda the Respondent who states that the judgment was entered on 1st October, 2025 whereby the appeal was allowed and following entry of judgment, on 9th October, 2025 he filed a Notice of Appeal as required by law. That the Appellant has proceeded and commenced execution proceedings by proclaiming moveable assets in satisfaction of the decree in ***Nyahururu CMCC No. 189 of 2018,*** the suit subject of the appeal. 11. That he has made the application for stay of execution pending hearing and determination of the appeal having moved the court timeously upon execution proceedings having been commenced; he will suffer irreparable loss and damage if orders sought are not granted. And, that the Appellant has included as part of proclamation parcel of land Kabaru Block 1/Tagwa/591 which is immoveable property which has been unlawfully included in the proclamation that includes moveable property. 12. In response thereto, through a replying affidavit deponed by Samuel Ngume Chege, the Appellant/Respondent it is averred that the applicant has not demonstrated that he will suffer substantial loss should the court decline to grant stay orders sought. That appeals in money decree are never rendered nugatory and decided cases have indicated so. 13. That the Applicant has never served upon him the Notice of Appeal and no security for the intended appeal has been offered. That it has not been demonstrated that the Appellant will suffer irreparable loss should the court decline to grant orders sought. That if the Applicant is serious about pursuing the appeal, he should deposit in court half the decretal sum and half be paid to the Respondent in the interest of justice. 14. The application was disposed through written submissions that I have duly taken into consideration. 15. As correctly submitted, orders sought invoke discretionary powers of the court provided for in statute. **Order 42 Rule 6(2) of the Civil Procedure Rules** explicitly provides thus; ***(1)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.*** ***(2) No order for stay of execution shall be made under sub rule (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.*** 1. In the case of ***Butt v Rent Restriction Tribunal [1982] KLR 417,*** the court discussed the question of discretion and stated thus; ***1. The power of the court to grant or refuse an application for a stay of execution is a discretionary power. The discretion should be exercised in such a way as not to prevent an appeal.*** ***2. The general principle in granting or refusing a stay is; if there is no other overwhelming hindrance, a stay must be granted so that an appeal may not be rendered nugatory should that appeal court reverse the judge’s discretion.*** ***3. A judge should not refuse a stay if there are good grounds for granting it merely because in his opinion, a better remedy may become available to the applicant at the end of the proceedings.*** ***4. The court in exercising its discretion whether to grant [or] refuse an application for stay will consider the special circumstances of the case and unique requirements. The special circumstances in this case were that there was a large amount of rent in dispute and the appellant had an undoubted right of appeal.*** ***5. The court in exercising its powers under Order XLI rule 4(2)(b) of the Civil Procedure Rules, can order security upon application by either party or on its own motion. Failure to put security for costs as ordered will cause the order for stay of execution to lapse.”*** 1. It is argued that the Applicant has not established that the Respondent will not be able to repay the sum of the money if released to him. It is however argued by the Applicant that moveable properties proclaimed include a parcel of land Kabaru Block 1/Tagwa/591 measuring 0.008ha which does not meet the description of the properties stated in the warrant of attachment of moveable property. 2. I note that the Respondent is amenable to orders sought being granted save for proposal that half the decretal sum be released to the Respondent who has waited for long for determination of the suit. 3. This being the case, I order that there be stay of execution of the decree in Nyahururu CMCC 189 OF 2018 as prayed on condition that the Applicant deposits the entire decretal sum in court within 30 days of today. 4. Costs to abide the appeal. 5. It is so ordered. **Dated, signed and delivered virtually this 14th day of May, 2026.** **……………………** **L.N. MUTENDE** **JUDGE**