https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10258

Gamsa v Namulanda (Civil Miscellaneous Application E067 of 2025) [2026] KEHC 10258 (KLR) (28 May 2026) (Ruling) Neutral citation: [2026] KEHC 10258 (KLR) Republic of Kenya In the High Court at Bungoma Civil Miscellaneous Application E067 of 2025 RK Ondieki, J May 28, 2026 JURISDICTION: IN THE HIGH COURT, BUNGOMA FILE NUMBER: HCC MISC.APP No. E067/2026. BETWEEN: WILLIAM GAMSA & JACKLINE NAMULANDA CORAM: R.K. ONDIEKI, J HEARD: 20th May, 2026. DELIVERED: 28th MAY, 2026. RULING OF THE COURT: Between William Gamsa Appellant and Jackline Namulanda Respondent Ruling 1.Perhaps, it fits this case from the outset to drop anchor so that when I come back to the surface, I do not lose my footing. It is now cast in stone and founded in many jurisprudential passages so often repeated and yet bear repetition. In Halsbury’s Law of England, 4th Edition. Vol. 37 page 330 and 332, the passage reads: “The stay of proceedings is a serious, grave and fundamental interruption in the right that a party has to conduct his litigation towards the trial on the basis of the substantive merits of his case, and therefore the court’s general practice is that a stay of proceedings should not be imposed unless the proceeding beyond all reasonable doubt ought not to be allowed to continue…This is a power which, it has been emphasized, ought to be exercised sparingly, and only in exceptional cases….It will be exercised where the proceedings are shown to be frivolous, vexatious or harassing or to be manifestly groundless or in which there is clearly no cause of action in law or in equity. The applicant for a stay on this ground must show not merely that the plaintiff might not, or probably would not, succeed but that he could not possibly succeed on the basis of the pleading and the facts of the case.” 2.In his application dated 16th March, 2026 by the applicant is seeking the following prayers;a.That the court be pleased to certify the application as urgent and the same to be heard in the first instance,b.That the Honourable court be pleased to grant leave to file on appeal out of time from the Judgement and decree of the Honourable Court in Bungoma CMCC No.11 of 2017- Jackline Namulanda Barasa (suing as legal Representative of the Estate of Robert Wakhungu DCD Vs William Gamsa Obed delivered on 19/08/2022.c.That this honourable be pleased to grant an Interim Order for stay of execution of Judgement and decree dated 19/08/2022 for Kshs2,000,000/= together with costs and interests of Kshs1,194115/= in Bungoma CMCC No. 116 of 2017- Jackline Namulanda Barasa (suing as legal Representative of the Estate of Robert Wakhungu DCD Vs William Gamsa Obed ending the hearing and determination of the application herein inter partes.d.That this honourable be pleased to grant an Interim Order for stay of execution of Judgement and decree dated 19/08/2022 for Kshs2,000,000/= together with costs and interests of Kshs1,194115/= in Bungoma CMCC No. 116 of 2017- Jackline Namulanda Barasa (suing as legal Representative of the Estate of Robert Wakhungu DCD Vs William Gamsa Obed ending the hearing and determination of the intended appeal. 3.The application is supported by the affidavit which reiterate the same grounds set out on the body of the application. They are;a.The judgement in the primary file was delivered ex-parte on the 16th August 2022 as exhibited by annexture marked as WGO 1.b.The appellant filed an application to set aside the ex-parte Judgment and the court proceedings of the court dated 23rd June 2022 and a ruling was delivered dismissing the application dated 31st August 2022 as evidence d by GWO 2.c.The Appellant made an application to appeal against the ruling of the Trial Magistrate but the same was dismissed for want of prosecution for non-attendance on the part of the Counsel.d.The appellant was aggrieved by the Judgement of the trial Magistrate as it was inordinately high.e.The Appellant contends that he will suffer great loss and prejudice as his household items and Motor Vehicle Registration Number KCG 461M, KDC 134L, KCR 749A KCS 482J and KBW 374M are at risk of being attached and scheduled for sale at any time.f.The intended appeal is meritorious with high chances of success, unless the attachment and sale of the said properties and execution is stayed, this application and the intended appeal stand to be rendered nugatory.g.The Appellant is ready and willing to deposit the entire decretal sum in escrow account in the names of the counsel for the Applicant and the Respondent as security for stay of execution. 4.Based on the grounds of appeal, the Respondent raises the following opposition;a.The application is frivolous vexatious unmerited bad in law an abuse of process of law as it offends the provisions of Order 9 Rule 9 of the Civil Procedure Rules.b.The Judgement delivered was not ex parte as the Applicant participated in the proceedings till at the defence stage when he failed to offer evidence.c.Then applicant has filed another application in the in the CM’s court and the ruling is scheduled for 16th April 2026, besides, dismissal of an appeal that was filed in the High Court, at Bungoma.d.The appellant has owned up the decree and had applied to the court to be allowed to liquidate the decretal sum by a monthly instalment of Kshs150,000/=. Analysis and Determination: 5.The common thread that runs in all applications for a stay of execution pending appeal in our courts, is well established in a host of decisions and some of them being, Kiplagat Kotut vs Rose Jebor Kipngok [2015] eKLR, Kenya Commercial Bank Limited vs Sun City Properties Limited & 5 Others [2012] eKLR and Kenya Shell Limited vs Kibiru which underscore that an application of this nature cannot granted unless the conditions in Order 42 Rule 6 of the Civil Procedure Rules are satisfied which are;a.Substantial loss may result to the applicant unless the order was made;b.The application was made without unreasonable delay; 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. 6.Evidently, the three (3) prerequisite conditions as set out in the said Order 42 Rule 6 of the Civil Procedure Rules, 2010 cannot be severed. The key word is “and”. It connotes that all three (3) conditions, must be met simultaneously. 7.More importantly, in such application is that the applicant must demonstrate sufficient cause why stay ought to be granted. It is not just enough to move the court armed with those three requirements and post 2010 decisions will bare me witness, that applicants must demonstrate that there is cause sufficient in each of those three ingredients for a court to stay execution. 8.In case Joseph Gachie t/a Joska Metal Works vs Simon Ndeti Muema [2012] eKLR. Odunga J (as he then was) stated as follows: - “It is not sufficient merely to state that the decretal amount is a lot of money and the applicant would suffer if the money is paid. In an application of this nature, the applicant should show the damages it will suffer if the order for stay is not granted since by granting stay would mean that status quo should remain as it were before judgement and that would be denying a successful litigant of the fruits of judgment which should not be done if the applicant has not given to the court sufficient cause to enable it exercise its discretion in granting the order of stay.” 9.What does the term "sufficient cause" mean.? The Court of Appeal of Tanzania in the case of The Registered Trustees of the Archdiocese of Dar es Salaam Vs The Chairman Bunju Village Government & Others discussing what constitutes sufficient cause had this to say: - “It is difficult to attempt to define the meaning of the words ‘sufficient cause’. It is generally accepted however, that the words should receive a liberal construction in order to advance substantial justice, when no negligence, or inaction or want of bona fides, is imputed to the appellant” 10.Additionally, in the Supreme Court of India in the case of Parimal Vs Veena observed that: -"sufficient cause" is an expression which has been used in large number of statutes. The meaning of the word "sufficient" is "adequate" or "enough", in as much as may be necessary to answer the purpose intended. Therefore, the word "sufficient" embraces no more than that which provides a platitude which when the act done suffices to accomplish the purpose intended in the facts and circumstances existing in a case and duly examined from the view point of a reasonable standard of a curious man. In this context, "sufficient cause" means that party had not acted in a negligent manner or there was want of bona fide on its part in view of the facts and circumstances of a case or the party cannot be alleged to have been "not acting diligently" or "remaining inactive." However, the facts and circumstances of each case must afford sufficient ground to enable the court concerned to exercise discretion for the reason that whenever the court exercises discretion, it has to be exercised judiciously" 11.In Daphene Parry vs Murray Alexander Carson, the court had the following to say: - ‘Though the court should no ‘doubt’ give a liberal interpretation to the words ‘sufficient cause,’ its interpretation must be in accordance with judicial principles. If the appellant has a good case on the merits but is out of time and has no valid excuse for the delay, the court must guard itself against the danger of being led away by sympathy…” 12.The court in the above case added that while deciding whether there is a sufficient cause or not, the court must bear in mind the object of doing substantial justice to all the parties concerned and that the technicalities of the law should not prevent the court from doing substantial justice and doing away with the illegality perpetuated on the basis of the judgment impugned before it. The test to be applied is whether the defendant honestly and sincerely intended to defend the suit. Sufficient cause is thus the cause for which the defendant could not be blamed for his non participation in the proceedings. Sufficient cause is a question of fact and the court has to exercise its discretion in the varied and special circumstances in the case at hand. There cannot be a straight-jacket formula of universal application. Thus, the defendant must demonstrate that he was prevented from defending the suit payment of the monies decreed by a sufficient cause. 13.In the case of Francis Mwanza Mulwa Vs Kanji Vagjiani & 2 others [2018] KEHC 2145 (KLR), the court held that “Section 79G of the Civil Procedure Act provides that: Every appeal from a subordinate court to the High Court shall be filed within a period of thirty days from the date of the decree or order appealed against, excluding from such period any time which the lower court may certify as having been requisite for the preparation and delivery to the appellant of a copy of the decree or order: Provided that an appeal may be admitted out of time if the appellant satisfies the court that he had good and sufficient cause for not filing the appeal in time. It is clear therefore that the decision whether or not to grant leave to appeal out of time or to admit an appeal out of time is an exercise of discretion and just like any other exercise of discretion. This being an exercise of judicial discretion, like any other judicial discretion must on fixed principles and not on private opinions, sentiments and sympathy or benevolence but deservedly and not arbitrarily, whimsically or capriciously. The Court’s discretion being judicial must therefore be exercised on the basis of evidence and sound legal principles, with the burden of disclosing the material falling squarely on the applicant for such orders. Substantial Loss: 14.In respect to this sub heading, I have these words which fell from Gikonyo J’s lips in James Wangalwa & another Vs Agnes Naliaka Cheseto Misc Application No 42 of 2011 [2012] eKLR. “…No doubt, in law, the fact that the process of execution has been put in motion, or is likely to be put in motion, by itself, does not amount to substantial loss. Even when execution has been levied and completed, that is to say, the attached properties have been sold, as is the case here, does not in itself amount to substantial loss under Order 42 Rule 6 of the CPR. This is so because execution is a lawful process. The applicant must establish other factors which show that the execution will create a state of affairs that will irreparably affect or negate the very essential core of the Applicant as the successful party in the appeal. This is what substantial loss would entail, a question that was aptly discussed in the case of Silverstein Vs. Chesoni [2002] 1KLR 867, and also in the case of Mukuma Vs. Abuoga quoted above. The last case, referring to the exercise of discretion by the High Court and the Court of Appeal in the granting stay of execution, under Order 42 of the CPR and Rule 5(2) (b) of the Court of Appeal Rules, respectively, emphasized the centrality of substantial loss thus: “…the issue of substantial loss is the cornerstone of both jurisdictions. Substantial loss is what has to be prevented by preserving the status quo because such loss would render the appeal nugatory.” 15.It is clear from the affidavit that the appellant stands to lose all the motor vehicles including his household should the attachment be levied. But more significantly, the Respondent has not filed any affidavit of means in event the appeal succeeds. No doubt, the appellant will stand stranded in retrieval of his decretal sum. Unreasonable Delay: 16.There is this English passage from the Judgment of Cotton LJ in Wilson Vs Church (No 2) (1879) 12 Ch D 454 at p 458, which I find so apposite to mention. He said; - “I will state my opinion that when a party is appealing, exercising his undoubted right of appeal, this court ought to see that the appeal, if successful, is not nugatory.” 17.The totality of the evidential affidavits of both counsel, show that since 2022 when the impugned judgement was delivered, there have been motions on different forums in respect to the dissatisfaction on the part of the appellant. However, what is before court is a ruling that was delivered on 14th March 2024. It also appears that out-of-court settlement of the decretal sum was attempted, but nonetheless, the negotiations collapsed and now the Appellant wants to exercise his undoubted right of appeal. In the circumstances, believe, the delay is not inordinate. Security: 18.The jurisprudence on security need not be gainsaid. When an applicant undertakes to deposit an entire amount in an escrow account of both counsel, as in our case, it appears that the applicant has assembled his arsenals and satisfied himself as a heavy-lifter. Put differently, he is certain, that his appeal is not frivolous, vexatious and not intended to deny the Respondent’s fruits of judgment but, has overwhelming chances of success. In Focin Motorcycle Co. Limited Vs Ann Wambui Wangui & another [2018] eKLR, it was stated that: “Where the applicant proposes to provide security as the Applicant has done, it is a mark of good faith that the application for stay is not just meant to deny the respondent the fruits of judgment. My view is that it is sufficient for the applicant to state that he is ready to provide security or to propose the kind of security but it is the discretion of the Court to determine the security. The Applicant has offered to provide security and has therefore satisfied this ground for stay.” 19.Additionally, Justice Gikonyo had some contribution to say in Arun C Sharma Vs Ashana Raikundalia T/A Rairundalia & Co.; “The purpose of the security needed under Order 42 is to guarantee the due performance of such decree or order as may ultimately be binding on the applicant. It is not to punish the judgment debtor………. Civil process is quite different because in civil process the judgment is like a debt hence the applicants become and are judgment debtors in relation to the respondent. That is why any security given under Order 42 rule 6 of the Civil Procedure Rules acts as security for due performance of such decree or order as may ultimately be binding on the applicants. I presume the security must be one which can serve that purpose.” 20.Having made the above findings, exercise my discretion in favour of the appellant and make the following orders.a.The applicant’s notice of motion for stay of execution pending appeal dated 16th March, 2026, is hereby allowed.b.In so far as it relates to security for the performance of the decree, the applicant is hereby conditioned to deposit the entire principal amount of the judgment being decretal sum and cost amounting to Kshs.3,194,115/= within 60 days from today’s date in the joint earning interest account of both advocates in a preferred financial institution of their choice.c.That in default of depositing of security within the time stipulated in this Order of stay of execution automatically lapses.d.The appellant to compile, file and serve a record of appeal upon the respondent within 45 days from the date hereof.e.The costs of this application do abide the outcome of the appeal. DELIVERED VIRTUALLY THIS 28TH MAY, 2026.R.K. ONDIEKI,JUDGE.In the presence of:Brian Kanja C/A