https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7412

Githunguri Dairy Farmers Co-operative Society v Refrigeration Components Limited & 2 others (Civil Case 428 of 2014) [2026] KEHC 7412 (KLR) (Civ) (25 May 2026) (Ruling) Neutral citation: [2026] KEHC 7412 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Law Courts) Civil Civil Case 428 of 2014 SN Mutuku, J May 25, 2026 (FORMERLY COMMERCIAL CASE NO. 244 OF 2008) Between Githunguri Dairy Farmers Co-operative Society Plaintiff and Refrigeration Components Limited 1st Defendant A Tejani 2nd Defendant Naushad Tejani 3rd Defendant Ruling 1.This Ruling relates to the Notice of Motion dated 30/01/2026 (the Application) filed by Refrigeration Components Limited (the Applicant). The Application is brought under Sections 1A, 1B and 3A of the Civil Procedure Act (CPA); Order 22, Rule 22(1) and Order 51, Rule 1 of the Civil Procedure Rules (CPR) and Articles 50 and 159(2)(a) and (e) of the Constitution of Kenya, 2010. It seeks stay of execution of the judgment delivered in the present suit on 8/10/2025 and the resulting decree pending the hearing and determination of a pending appeal. 2.The Application is supported by grounds set out on the face of it and in the Supporting Affidavit of the Applicant’s Director, Salima Tejani, sworn on 30/1/2026. It is deposed in that Affidavit that the judgment herein was delivered in favour of Githunguri Dairy Farmers Co-operative Society (the Respondent) against the Applicant where the Respondent was awarded a sum of Kshs. 6,612,971.30 plus costs of the suit and interest thereon; that the Applicant is dissatisfied with the said judgment and wishes to challenge the same by way of an appeal to the Court of Appeal; that the delay in lodging the appeal within time was occasioned by the time taken in obtaining the certified copies of the typed proceedings and that the Applicant has since filed a Notice of Appeal, which intended appeal is arguable. 3.The Applicant has urged that unless stay of execution sought is granted, the Respondent will move to execute the decree arising from the judgment, thus occasioning the Applicant substantial loss; that the Applicant remains willing to comply with the conditions that the court will set and that the Applicant is willing to provide security by procuring a property known as L.R. No. 420/55 situated in Green Park Estate, Naivasha in Nakuru County (the property), whose market value stands at Kshs. 25,000,000/-. Grounds of Opposition 4.The Respondent has opposed the Application through the Grounds of Opposition dated 18/02/2026 summarized as shown below:i.The application is an abuse of the process of the court and is designed to assist the Defendants to obstruct and/or delay the course of justice.ii.The Defendants have not met the conditions for the grant of the stay of execution sought under Order 42, Rule 6 of the Civil Procedure Rules.iii.The application is bad in law for contravention of the rule in Nabro Properties v Sky Structure (2002) 2 KLR 299 in that it is based on the Defendants’ own wrong of, inter alia, disobedience of court orders as demonstrated in the judgment delivered herein on 8th October, 2025. 5.The Respondent has stated that the Applicants herein are undeserving of the exercise of this court’s discretion in their favour and the application should be dismissed; that without prejudice to what is stated above and this being a money decree, the application may be allowed on condition that either the Applicants deposit the decretal amount and interest at court rates from the date of filing suit, being 7th May, 2008, in a joint interest earning account in the names of the Advocates on record for the parties herein, or in the alternative, to provide a bank guarantee for the said decretal amount and interest at court rates from the date of filing suit i.e. 7th May, 2008. Parties’ Submissions 6.The Application was canvassed through written submissions. The Applicant’s submissions are dated 10/03/2026. The Applicant has argued that the court has discretionary power to grant a stay of execution pending an appeal. The Applicant relied on Jamii Bora Bank Limited & another v Samuel Wambugu Ndirangu [2022] KEHC 1845 (KLR) where the discretionary power of the court in such context was appreciated, and argued that the instant Application has not only been filed timeously, it also demonstrates the manner in which substantial loss will occur if an order for stay is denied in that the Applicant stands to pay the decretal amount which is colossal. 7.The Applicant has cited the case of Tropical Commodities Suppliers Ltd & Others v/s International Credit Bank Ltd (in liquidation) (2004) 2 E.A. 331 cited with approval in the case of Ann Wanjiru Waigwa & Another v Joseph Kiragu Kibarua [2009] KEHC 611 (KLR) in which the court reasoned thus:“..... Substantial loss does not represent any particular mathematical formula. Rather, it is a qualitative concept. It refers to any loss, great or small, that is of real worth or value as distinguished from a loss without value or a loss that is merely nominal........” 8.It is the Applicant’s argument that it has not been demonstrated that the Respondent is able to refund the decretal amount once the same is paid and the intended appeal ultimately succeeds. 9.On the issue of security, it is the Applicant’s argument that the proposed property would constitute sufficient security since its market value exceeds the decretal amount awarded in the present suit and that the title thereto can be made available. 10.The Respondent, on the other hand, has contended in its submissions that while the court has discretion to grant a stay of execution, such discretion ought to be exercised judiciously, upon balancing the competing interest of the respective parties. To support the above argument, the Respondent has relied on African Safari Club Limited v Safe Rentals Limited [2010] KECA 270 (KLR) and Jeremiah Yatich (Suing as the Administrator of the Estate of Joshua Yatich Chepyegon (Deceased) v Christopher Kipkosgei & 3 others [2021] KEELC 3207 (KLR) in which the respective courts restated the above position. 11.On the merits of the Application, the Respondent has submitted that there has been an inordinate delay in bringing the Application and hence the Applicant is guilty of laches and that the Applicants have not demonstrated that they stand to suffer substantial loss in the event that a stay is denied. The Respondent cited Joseph Obachi Dianga & John Robert Ouko Odongo (suing as Legal Representatives of the Estate of Pius Dianga Audno – Deceased) v Kennedy Onyango Obiero, African Banking Corporation & Nyaluoyo Auctioneers [2021] KEELC 4365 (KLR) where it was held that substantial loss must be explained and demonstrated. 12.The Respondent has urged that the instant Application be dismissed with costs for want of merit, or in the alternative, if the court is to arrive at a different finding, then the order for stay ought to be conditional upon the Applicant providing security for the decretal amount either by way of a deposit in a joint interest earning account or by way of a bank guarantee. 13.The record shows that neither A Tejani (hereafter the 2nd Defendant) nor Naushad Tejani (hereafter the 3rd Defendant) participated in this application. Analysis and Determination 14.I have considered the Application and the Grounds of Opposition as well as the submissions of the parties. The Applicant seeks the substantive prayer for stay of execution of the judgment and decree issued in this case pending the hearing and determination of the intended appeal herein. 15.The applicable provision relating to stay of execution pending an appeal is Order 42, Rule 6 of the CPR which stipulates that:(1)No appeal or second appeal shall operate as a stay of execution or proceedings under a decree or order appealed from except appeal case of 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 subrule (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. 16.It is upon the Applicants to demonstrate that the application was filed without unreasonable delay; that the stand to suffer substantial loss if an order of stay is not granted and that they are able to provide security as provided under Order 42 Rule 6 (2). I have noted that judgment in this suit was delivered on 8/10/2025 whereas the instant Application was brought on or about 30/01/2026. The delay in filing the application within time has been explained to have been occasioned by the time taken in obtaining certified copies of the typed proceedings and judgment. That explanation is plausible; however, the Applicant has not provided a certificate of delay in respect of the typed proceedings to persuade this court that indeed the delay in filing this application within time was caused by the delayed typed proceedings. 17.On the subject of substantial loss, I have read rancis K. Chabari & another vs Mwarania Gaichura Kairubi [2022] eKLR where the court, while citing Geoffery Muriungi & another v John Rukunga M’imonyoso defined substantial loss as follows:“The undisputed purpose of stay pending appeal is to prevent a successful appellant from becoming a holder of a barren result for reason that he cannot realize the fruits of his success in the appeal. I always refer to that eventuality as ‘’reducing the successful appellant into a pious explorer in the judicial process’’. The said state of affairs is what is referred to as ‘’substantial loss’’ within the jurisprudence in the High Court, or ‘’rendering the appeal nugatory’’ within the juridical precincts of the Court of Appeal: and that is the loss which is sought to be prevented by an order for stay of execution pending appeal.” 18.I have considered the primary averments by the Applicant on the manner in which it stands to suffer substantial loss, namely that the Respondent will proceed to execute the decree which constitutes a colossal amount. The Respondent has rebutted this averment by submitting that it has not been demonstrated that the Applicant will suffer substantial loss. 19.It is not lost to this court that execution is a lawful process and a successful party should be allowed to enjoy the fruits of his or her judgment. The applicant therefore must demonstrate that the application seeking stay of execution pending an appeal is not brought with ill motive for the purpose of denying the Respondent the opportunity to enjoy the fruits of its judgment. 20.I am also alive to the fact that the Applicants are within their rights to pursue an appeal. I have fully considered this application and balanced the rights of the parties. It is required that an applicant seeking stay of execution pending an appeal is required to provide security for the due performance of such decree or order as may ultimately be binding on him has been given by the Applicant. The Applicants have demonstrated their willingness to provide security as a condition for the order for stay of execution. 21.Consequently, I hereby allow the application and grant an order staying the execution of the Judgment and decree in this matter on condition that the Applicants provide security. In this regard, the Applicants shall deposit the decretal sum, being Kshs 6,612,971.30, in an interest earning account held in joint names of the counsel for the Applicants and counsel for the Respondent. This shall be done within 45 days from the date of this Ruling. 22.Each party shall bear own costs of this application. 23.It is so ordered. DATED, SIGNED AND DELIVERED THIS 25TH DAY OF MAY 2026.S. N. MUTUKUJUDGEIn the presence of:1………………………………………for the Applicants2………………………………………for the Respondent