https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10568

**REPUBLIC OF KENYA** **IN THE HIGH OF KENYA AT MERU** **CIVIL APPEAL NO. E135 OF 2025** **KENNETH MWITI GATOBU……………………….APPELLANT/APPLICANT** **VERSUS** **JACKLINE KENDI……………..………………..………………...RESPONDENT** **RULING** 1. For determination is the Notice of Motion dated 16/1/2026 under**Sections 1a, 1b & 3a of the Civil Procedure Act, Order 42 Rules 6 (1) 2 & 4 of the Civil Procedure Rules**, seeking that: 1. **Spent** 2. **Spent** 3. **This Honourable court be pleased to Review/vary its orders issued on 25/09/2025 and requiring the deposit of Ksh 350,000/= in the Courts” account within 30 days from the even date and in place be pleased to allow for an unconditional stay of Execution pending hearing and determination of the Application.** 4. **This Honourable court be pleased to Review/vary its orders issued on 25/09/2025 and requiring the deposit of Ksh 350,000/= in the courts” account within 30 days from the even date and in place be pleased to allow for an unconditional stay of Execution pending hearing and determination of the Application and the Appeal.** 5. **This Honourable Court be pleased to grant a stay of execution of the Judgement delivered on the 5/06/2025 by Honourable Lilian Wangare M.M, (SRM) in Meru Small Claims Court SCCCOM NO E203 OF 2025 and all consequential orders pending the hearing and determination of this Appeal.** 6. **Costs be provided for.** 2. The application is premised on the grounds that this Court on 25/09/2025 granted a conditional stay of execution and directed the Applicant to deposit Kshs 350,000/= in the Court’s account within 30 days from the date thereof, failure to which the stay order would lapse. The Applicant has not been in any gainful employment as the instant dispute led to the closure of his business which was his only source of livelihood and, despite making reasonable efforts to raise the entire decretal sum and deposit it in Court, he was unable to do so within the 30 day period, thus necessitating the review sought. There is a real threat of execution, as Motor Vehicle Registration No. KBA 197 S, belonging to Zippy Kendi Gikunda, has already been proclaimed. The Respondent will not suffer any prejudice which is uncompensable by an award of damages, and unless the orders of stay are granted, the appeal will be rendered nugatory. 1. The Respondent did not file any response to the application. 2. The application was canvassed by way of written submissions, which were duly filed by Counsel. **Determination** 1. After careful consideration of the application, the response and the submissions on record together with the authorities cited, the issue for determination is whether the review sought is merited. 2. On 25/9/2025, this Court granted the Applicant conditional stay of execution upon deposit of Kshs. 350,000, in default of which the stay would lapse. It is that order that the Applicant now seeks to be reviewed, on the basis that he has no means whatsoever to raise it. I have asked myself whether the court can grant unconditional stay of execution in the terms sought by the Applicant, and the answer is in the negative. The provision of security for the due performance of the decree is a condition precedent to the grant of stay of execution. 3. In [***Gianfranco Manenthi & Another v Africa merchant Assurance Co. Ltd***](https://new.kenyalaw.org/akn/ke/judgment/keca/2017/574)***[2019] eKLR*** the Court (*R. Nyakundi J)* observed that; ***“The applicant must show and meet the condition of payment of security for due performance of the decree. Under this condition, a party who seeks the right of appeal from a money decree of the lower court for an order of stay must satisfy this condition on security. In this regard, the security for due performance of the decree under Order 42 Rule 6 (1) of the Civil Procedure Rules, it is trite that the winner of litigation should not be denied the opportunity to execute the decree in order to enjoy the fruits of his judgment in case the appeal falls. Further Order 42 should*** ***be seen from the point of view that a debt is already owed and due for payment to the successful litigant in a litigation before a court which has delivered the matter in his favour. This is therefore to provide a situation for the court that if the appellant fails to succeed on appeal there could be no return to status quo on the part of the plaintiff to initiate execution proceedings where the judgment involves a money decree. The court would order for the release of the deposited decretal amount to the respondent in the appeal...Thus, the objective of the legal provisions on security was never intended to fetter the right of appeal. It was also put in place to ensure that courts do not assist litigants to delay execution of decrees through filing vexatious and frivolous appeals. In any event, the issue of deposit of security for due performance of decree is not a matter of willingness by the applicant but for the court to determine.”*** 1. Needless to state, at the time of filing the application on 16/1/2026, the stay herein granted, upon which the review is predicated, had lapsed on 25/10/2025. The Applicant has neither offered sufficient reason nor alternative security to justify the review sought. 2. The Applicant is accused of hurriedly transferring Motor Vehicle Registration No. KBA 197 S to a 3rd party in a bid to defeat the execution proceedings. He is thus undeserving of the discretion of this Court. 3. Accordingly, the application dated 16/1/2026 is in want of merit and it is hereby dismissed. 4. Costs be in the cause. **DATED AND DELIVERED AT MERU THIS 15TH DAY OF JULY, 2026.** **S.M. GITHINJI –JUDGE** **15/7/2026** **In the presence of:-** Mr. Amanya for the Respondent Mr. Karanja for the Appellant/Applicant.