https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6913

CM Advocates LLP v Kariko t/a Githinji & Associates Advocates (Commercial Suit E203 of 2024) [2026] KEHC 6913 (KLR) (Commercial and Tax) (14 May 2026) (Ruling) Neutral citation: [2026] KEHC 6913 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Commercial Courts) Commercial and Tax Commercial Suit E203 of 2024 MA Otieno, J May 14, 2026 Between CM Advocates LLP Plaintiff and Samuel Githinji Kariko Trading As Githinji & Associates Advocates Defendant Ruling 1.Before me is the Notice of Motion dated 24th June 2025 brought by the Defendant/Applicant principally under Order 42 Rule 6 of the Civil Procedure Rules seeking, inter alia, orders of stay of execution of the Judgment and Decree of this Court pending the hearing and determination of the intended appeal. 2.The application is supported by the Affidavit of Samuel Githinji Kariko, sworn on 24th June 2025, together with a Further Affidavit dated 15th November 2025, subsequently filed. The Applicant avers that judgment was entered against him on 3rd February 2025 in the sum of Kshs.18,000,000/= arising from an alleged breach of professional undertaking, and that he has since lodged an appeal challenging the said decision. 3.The Respondent opposes the application through the Replying Affidavit of Cyrus Nderitu Maina, sworn on 1st October 2025. The Respondent contends that the application is fatally defective owing to an improperly commissioned supporting affidavit and that, in any event, the Applicant has failed to satisfy the requirements for the grant of stay under Order 42 Rule 6 of the Civil Procedure Rules. 4.The application was canvassed by way of written submissions. The Defendant/Applicant, through the law firm of Wandai Matheka & Co. Advocates, filed submissions dated 15 December 2025, whilst the Decree Holder/Respondent, through the Counsel CM Advocates, filed submissions dated 7 October 2025. The Applicant’s Case 5.The Applicant contended that the Respondent has commenced execution proceedings, including garnishee proceedings against the Applicant’s bank accounts, for the balance of Kshs.6,610,483/= together with costs and interest. 6.The Applicant averred that he has already paid Kshs.12,000,000/= towards satisfaction of the decree and that the remaining amount (Kshs. 6,948,729.30) forms the subject of the intended appeal. He further asserted that the appeal has high chances of success because there existed correspondence and conduct amounting to a variation of the professional undertaking. 7.It is further deposed that the Respondent still holds title documents to the suit property, allegedly valued at Kshs.18,000,000/= and that such documents constitute sufficient security pending appeal. 8.On the question of delay, the Applicant states that he only became aware of the garnishee proceedings on 13th June 2025 and promptly filed the present application on 24th June 2025. 9.In response to the allegation that the supporting affidavit is defective, the Applicant explained that the reference to Mombasa in the jurat was a typographical error by counsel and that the affidavit was, in fact, sworn in Nairobi before the Commissioner for Oaths. The Respondent’s Case 10.The Respondent raised a preliminary objection to the competency of the application on the ground that the supporting affidavit contravenes Section 5 of the Oaths and Statutory Declarations Act and Rule 7 of the Oaths and Statutory Declarations Rules. The Respondent argues that the affidavit purports to have been sworn in Mombasa while the Commissioner for Oaths’ stamp indicates Nairobi, thereby rendering the affidavit incurably defective. 11.The Respondent relied on several authorities, including Mary Gathoni & Another v Frida Ariri Otolo & Another [2020] eKLR, Regina Munyiva Ndunge v Kenya Commercial Bank Ltd [2005] eKLR, and CMC Motors Group Limited v Bengeria Arap Korir t/a Marben School & Another [2013] eKLR, in support of the contention that an affidavit not properly commissioned is invalid and incapable of sustaining an application. 12.On the substance of the application, the Respondent submitted that the Applicant failed to demonstrate substantial loss. It was argued that this is purely a money decree and no evidence has been tendered to show that the Respondent would be unable to refund the decretal amount in the event the appeal succeeds. 13.The Respondent further contended that the application was filed after an inordinate delay, noting that judgment was delivered on 3rd February 2025 and the Applicant had been granted a 30-day stay, but only approached the Court nearly five months later after execution had commenced. 14.Finally, the Respondent submitted that should the Court be inclined to grant stay, then the Applicant ought to be ordered to deposit the outstanding decretal amount in a joint interest-earning account in the names of counsel for the parties. Analysis and Determination 15.The Court has considered the Motion, affidavits on record, annexures, and rival submissions filed by counsel for the parties. The issues arising for determination are:i.Whether the supporting affidavit is fatally defective;ii.Whether the Applicant has satisfied the conditions for grant of stay of execution pending appeal; Whether the Supporting Affidavit is Fatally Defective 16.The Respondent’s primary objection is that the supporting affidavit offends Section 5 of the Oaths and Statutory Declarations Act because it indicates that it was sworn in Mombasa, whereas the Commissioner for Oaths appears to have commissioned it in Nairobi. 17.Section 5 of the Oaths and Statutory Declarations Act provides that:“Every commissioner for oaths before whom any oath or affidavit is taken or made under this Act shall state truly in the jurat or attestation at what place and on what date the oath or affidavit is taken or made.” 18.The purpose of the provision is to ensure authenticity in the commissioning process and to guarantee that the deponent personally appeared before the Commissioner for Oaths. 19.The authorities cited by the Respondent indeed demonstrate that where an affidavit clearly discloses that it could not possibly have been sworn before the Commissioner for Oaths, such affidavit may be struck out. In Mary Gathoni & Another v Frida Ariri Otolo & Another [2020] eKLR, the Court emphasized that the deponent and Commissioner must be present at the same place and at the same time. 20.However, the Court must equally bear in mind Article 159(2)(d) of the Constitution, which obliges courts to administer justice without undue regard to procedural technicalities. The Court must therefore consider whether the defect complained of goes to substance or whether it is curable. 21.In the present matter, the Applicant has explained through the Further Affidavit that the reference to Mombasa was occasioned by inadvertence and typographical error by counsel, and that the affidavit was, in fact, sworn in Nairobi before the Commissioner for Oaths. The deponent further reiterates that he resides and practices in Nairobi, where the affidavit was commissioned. 22.Unlike the authorities cited by the Respondent, there is no evidence here suggesting fraud, fabrication, or deliberate falsification of the commissioning process. The inconsistency appears attributable to an error in drafting the jurat rather than proof that the affidavit was not sworn before the Commissioner for Oaths. 23.The Court is persuaded that the defect, though serious, is curable and ought not, in the circumstances of this case, defeat substantive justice. The Court therefore declines to strike out the supporting affidavit. Whether the Applicant Has Satisfied the Conditions for Stay Pending Appeal 24.The principles governing stay pending appeal are well settled under Order 42 Rule 6(2) of the Civil Procedure Rules. An applicant must demonstrate:i.That substantial loss may result unless stay is granted;ii.That the application was brought without unreasonable delay; andiii.That security for due performance of the decree has been furnished. 25.The jurisdiction of this court to grant orders of stay pending appeal under Order 42 Rule 6 of the Civil Procedure Rules in order to secure the substratum of the appeal is not in doubt. In Mary Wanjiru Kinyua v Commissioner of Investigations & Enforcement [2021] KEHC 13253 (KLR), the Court (Majanja J), stated that; -“The power to grant stay pending appeal is discretionary and must be exercised in such a way that the appeal is not rendered nugatory. It is to be exercised having regard to the circumstances of the case and having regard to the fact that the Appellant is entitled to exercise her statutory right of appeal while the Commissioner is entitled to the fruits of its judgment.” 26.With the above in mind, the Court shall now proceed and consider the threshold has been met.(a)Substantial Loss 27.Substantial loss is the cornerstone upon which the jurisdiction to grant stay is founded. The Court of Appeal in Kenya Shell Limited v Benjamin Karuga Kigibu & Ruth Wairimu Karuga (1982-1988) l KAR 1018 emphasized that absent proof of substantial loss, stay ought not ordinarily issue. The Court stated that: -“It is usually a good rule to see if Order 41 Rule 4 of the Civil Procedure Rules can be substantiated. If there is no evidence of substantial loss to the applicant, it would be a rare case when an appeal would be rendered nugatory by some other event. Substantial loss in its various forms is the cornerstone of both jurisdiction for granting stay.” 28.The decree herein is a money decree. In such cases, substantial loss is ordinarily demonstrated by showing that the respondent may be unable to refund the decretal amount if the appeal succeeds. 29.In this case, the Applicant has not expressly demonstrated that the Respondent lacks the financial ability to refund the decretal sum. However, the Court must also consider the peculiar circumstances of this matter. The Applicant has already paid Kshs.12,000,000/= towards satisfaction of the decree, and the balance of approximately Kshs. 6.6 million remains contested on appeal. 30.Further, the intended appeal concerns the interpretation and alleged variation of a professional undertaking, an issue which cannot be said to be frivolous on the face of it. 31.The Court is satisfied that if execution proceeds and the appeal eventually succeeds, the Applicant may suffer prejudice that may not easily be remedied, particularly considering the professional and reputational dimensions attendant to execution against an advocate.(b)Delay 32.The Court notes that the judgment was delivered on 3rd February 2025 and the present application was filed on 24th June 2025. There was, therefore, obviously a delay of several months. 33.The Applicant explained that he became aware of the garnishee proceedings on 13th June 2025 and moved the Court shortly thereafter. While the explanation is not entirely satisfactory, the Court notes that part satisfaction of the decree had already occurred and negotiations or engagements between the parties appear to have persisted during the intervening period. 34.The delay, though considerable, is not, in the view of the Court, so inordinate as to disentitle the Applicant to relief altogether, especially where the right of appeal is constitutionally protected.(c)Security 35.On security, the Applicant expressed willingness to abide by any conditions imposed by the Court and asserted that the Respondent continues to hold title documents allegedly worth Kshs.18,000,000/=. 36.Nonetheless, the Court is mindful that security under Order 42 Rule 6 is intended to safeguard the interests of both the decree holder. The Respondent has a valid judgment and is entitled to enjoy the fruits thereof. 37.In the circumstances, the Court finds it appropriate to order security by way of deposit of the outstanding decretal sum in a joint interest-earning account in the names of counsel for the parties. 38.Accordingly, the Court conditionally allows the Notice of Motion dated 24th June 2025, and makes the following orders:i.There shall be a stay of execution of the Judgment and Decree pending the hearing and determination of the intended appeal.ii.The Applicant shall, within forty-five (45) days from the date hereof, deposit the outstanding decretal sum of Kshs.6,610,483/= in an interest-earning joint account in the names of counsel for the parties.iii.In default of compliance with Order (3) above within the stipulated period, the stay granted herein shall automatically lapse.iv.Costs of the application shall abide the outcome of the appeal. 39.It is so ordered. DATED, SIGNED, AND DELIVERED AT NAIROBI THIS 14TH DAY OF MAY 2026HON. MR. JUSTICE MOSES ADOJUDGE OF THE HIGH COURTIn the Presence of:Moses C/AN/A…………………for the ApplicantMiano for DH……for the Respondent