https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12546

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA** **AT NAKURU** **CIVIL APPEAL NO. E119 OF 2026** JAMES MUREITHI GUANDARU ...……… APPELLANT/APPLICANT **VERSUS** NANCY WANJIKU NJOROGE ........... ………….. 1st RESPONDENT PETER NG'ANG'A KIMEMIA ........................ … 2nd RESPONDENT **RULING** **A. Background** 1. This ruling concerns the Notice of Motion dated 3rd June 2026, brought under Sections 1A, 1B and 3A of the Civil Procedure Act, Order 40 Rules 1, 2 and 4 of the Civil Procedure Rules, Order 42 Rule 6(1) of the Civil Procedure Rules and Order 51 Rule 1 of the Civil Procedure Rules, by which the Appellant/Applicant seeks orders staying execution of the Ruling and Order of Hon. Priscah Wamucii Nyotah, Senior Resident Magistrate, delivered on 20th May, 2026 in Nakuru CMCC No. E033 of 2024 pending the hearing and determination of the appeal herein. 2. On 12th November 2025, the subordinate court (Nakuru CMCC No. E033 of 2024) entered judgment against the Applicant in favour of the Respondents in the sum of Kshs. 2,837,582.47 together with costs and interest, arising out of a road traffic accident involving motor vehicle registration number KCA 332R, a Mitsubishi Fuso Lorry. A decree and certificate of costs were thereafter issued, and the Respondents instructed auctioneers who proclaimed the Applicant's properties on 2nd March 2026. 3. It is the Applicant's case that the said motor vehicle was, at all material times, insured by Trident Insurance Company Limited under Policy No. 010/080/1/235504/2022 (Motor Commercial Third Party Only Cover). Contending that the insurer is statutorily bound under Section 10 of the Insurance (Motor Vehicles Third Party Risks) Act, Cap 405, to satisfy the judgment, and that the insurer has failed and/or refused to do so, the Applicant instituted Nakuru CMCC No. E813 of 2026 against Trident Insurance Company Limited seeking a declaration to that effect. 4. To protect his properties pending determination of the declaratory suit, the Applicant moved the trial court by a Notice of Motion dated 16th March 2026 seeking an unconditional stay of execution. The Respondents raised a preliminary objection dated 4th April, 2025 contending non-compliance with Order 9 Rule 9 of the Civil Procedure Rules touching on the Applicant's advocates on record. By a Ruling delivered on 20th May 2026, the trial court (Hon. Priscah Wamucii Nyotah, SRM) overruled the preliminary objection, holding that Order 9 Rule 9 did not apply to the circumstances of the case, a notice of appointment (as opposed to a notice of change) of advocates having been filed. On the merits, the trial court allowed the application for stay, but on condition that the Applicant pays 50% of the decretal sum within 14 days and deposits the balance in a joint interest-earning account within 30 days, relying substantially on the persuasive authority of **Ngunyu v Invesco Assurance Company Limited [2023] eKLR**, in which a similarly structured conditional stay had been granted in analogous circumstances. 5. Aggrieved by the entirety of that Ruling, the Applicant filed a Memorandum of Appeal dated 29th May 2026, advancing eight grounds which, in summary, contend that the trial court: (i) misapprehended the special statutory character of the application, grounded as it was on Section 10 of the Insurance (Motor Vehicles Third Party Risks) Act and the pendency of the declaratory suit; (ii) imposed conditions that are oppressive, disproportionate and punitive, rendering the stay illusory; (iii) failed to give due weight to the Applicant's legitimate expectation of indemnity from the insurer; (iv) in directing immediate payment of 50% of the decretal sum to the Respondents, in substance ordered partial execution of a decree whose ultimate incidence of liability is itself in issue; (v) failed to evaluate the Applicant's financial capacity; (vi) failed to consider less onerous alternative forms of security such as a bank guarantee, a logbook, phased payment or an undertaking; (vii) failed to balance the interests of the parties proportionately; and (viii) occasioned a miscarriage of justice by rendering the declaratory suit nugatory. 6. Simultaneously with the Memorandum of Appeal, the Applicant filed the Notice of Motion now before me, together with a Certificate of Urgency and a Supporting Affidavit sworn on 3rd June 2026, essentially seeking to hold in abeyance both the conditions imposed by the trial court and the underlying execution process, pending the hearing and determination of the appeal, alternatively pending remittal of the stay application to the subordinate court for fresh consideration. **B. Issues for Determination** 7. Having considered the application, the record of the subordinate court proceedings and Ruling, the Memorandum of Appeal, and the authorities placed before the trial court and referenced in the papers, the following issues arise for determination at this interlocutory stage: (i) Whether this Court has jurisdiction, at this stage, to entertain an application to stay or vary the conditional stay order made by the trial court, notwithstanding the pendency of the substantive appeal; (ii) Whether the Applicant has satisfied the threshold conditions under Order 42 Rule 6(2) of the Civil Procedure Rules for the grant of a stay of execution pending appeal; (iii) Whether the grounds of appeal directed at the substance of the conditions imposed by the trial court are sufficiently arguable to warrant further interim interference with those conditions pending the hearing of the appeal; and (iv) Whether the form of security ordered, and the timeframe fixed for compliance, ought to be varied in the interim, in light of Section 10 of the Insurance (Motor Vehicles Third Party Risks) Act and the pendency of the declaratory suit. **C. Analysis** **(i): Jurisdiction** 8. Order 42 Rule 6(1) of the Civil Procedure Rules provides, in relevant part, that no appeal shall operate as a stay of execution except so far as the court appealed from may order, but that "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." This second limb of the Rule is precisely the jurisdictional foundation of the present application: the Applicant, being dissatisfied not with the grant of a stay as such but with the conditions attached to it, is entitled to approach this Court, as the appellate court, to have those conditions reviewed on an interim basis, notwithstanding that a substantive appeal on the merits of the Ruling is also pending. There is, accordingly, no jurisdictional impediment to this Court entertaining the application. **(ii): The Order 42 Rule 6(2) threshold** 9. It is trite that an appeal does not operate as an automatic stay of execution, and that the grant of a stay pending appeal is a discretionary remedy which must be exercised judicially and upon defined principles, not capriciously (see Butt v Rent Restriction Tribunal [1982] KLR 417). Order 42 Rule 6(2) of the Civil Procedure Rules requires an applicant to demonstrate: (a) that substantial loss may result unless the order is made; (b) that the application has been made without unreasonable delay; and (c) that the applicant has furnished such security for the due performance of the decree as may ultimately be binding upon him. 10. On delay, I find none. The impugned Ruling was delivered on 20th May 2026, the Memorandum of Appeal was filed on 29th May 2026, and the present application, together with the Certificate of Urgency, was filed on 3rd June 2026 — the very day on which the 14-day compliance period fixed by the trial court was due to lapse. The application therefore cannot be faulted on the ground of delay. 11.On substantial loss, the applicable test was stated in James Wangalwa & Another v Agnes Naliaka Cheseto [2012] eKLR, to the effect that the fact of execution is not, without more, substantial loss; an applicant must show that execution will create a state of affairs that will irreparably affect or negate the core of his position as a party with an arguable appeal. The Applicant avers that the proclaimed properties, including the insured lorry, constitute his sole means of livelihood, and that their attachment and sale would occasion loss that an award of damages could not adequately remedy. I accept, for present purposes, that the prospective loss of one's operating asset and means of income is capable of amounting to substantial loss of the kind contemplated by Order 42 Rule 6(2)(a), particularly where, as here, there exists a live and unresolved question as to who — as between the Applicant and his insurer — bears the ultimate financial burden of the decree. I am satisfied that this limb is met. 12. On security, the record shows that the Applicant has not resisted the principle that security ought to be furnished; his complaint, properly understood, is not that security should not be required at all, but that the particular form and timing of the security ordered by the trial court is disproportionate. That distinction is material and is addressed under Issues (iii) and (iv) below. **(iii): Arguability of the grounds directed at the substance of the conditions** 13.A significant feature of the record before the trial court confirms it was the Applicant, and not the Respondents, who placed before the trial court the authority of **Ngunyu v Invesco Assurance Company Limited [2023] eKLR** in support of his own application dated 16th March 2026, and it was on the strength of that very authority — cited by the Applicant to advance his own case for a stay — that the trial court fashioned the condition of 50% payment with the balance secured in an interest-earning account, a structure to which the Respondents raised no objection. 14. Having himself invited the trial court to adopt a legal position drawn from that authority, and having obtained the relief of a stay (albeit conditional) substantially on that footing, the Applicant faces a real difficulty in now contending, even at the arguability stage, that the very structure his own submissions commended to the trial court is so plainly wrong as to warrant interim variation. 15. It is a settled principle that a litigant cannot approbate and reprobate by taking one position to secure an order in his favour and a contrary position to escape the terms of that same order **(Behan & Okero Advocates v National Bank of Kenya [2007] eKLR).** This observation goes only to the strength of the case for interim variation of the conditions pending appeal. 16. It also bears emphasis, for the limited purposes of this interlocutory assessment, that the Respondents were not party to, and had no hand in, whatever contractual or administrative difficulties exist between the Applicant and Trident Insurance Company Limited. They sued the Applicant, proved their case after full participation by all parties, and obtained a judgment on 12th November 2025 that has not been set aside and is not, in this appeal, challenged on its merits — indeed, it is only the conditions attached to the stay of that judgment's execution, and not the judgment itself, that are in issue. That judgment is now well over a year old, and the underlying claim traces back to a road traffic accident that occurred earlier still; the Respondents have therefore already waited a considerable time for the fruits of litigation they were fully entitled to pursue and did pursue to a successful conclusion. A judgment-creditor in that position is prima facie entitled to execute, and the pendency of an appeal does not, without more, entitle a judgment-debtor to indefinitely defer that entitlement in the interim merely because he has a separate, unresolved dispute with his own insurer **(RWW v EKW [2019] eKLR).** 17. Weighing the foregoing, I am not satisfied, for purposes of this interlocutory application, that the grounds attacking the substance of the 50% direct-payment formula disclose a sufficiently strong case to warrant varying that formula in the interim, pending the hearing of the appeal. This finding is confined to the question of interim relief; it does not pre-empt, and shall not be treated as pre-empting, the final determination of the Memorandum of Appeal, which remain live for argument and decision at the substantive hearing of the appeal. **(iv): The form of security and the pending declaratory suit** 18.The Ruling of 20th May 2026 makes plain that the trial court had before it submissions and authorities from both sides on the appropriate form of stay, and made a deliberate choice, in the exercise of its discretion, to require part-payment in cash rather than a substitute form of security. The choice between forms of security for due performance of a decree is quintessentially a matter for the trial court's discretion **(Gianfranco Manenthi & Another v Africa Merchant Assurance Co. Ltd [2019] eKLR).** This is reinforced by the well-established reluctance of courts to accept a motor vehicle logbook as adequate stand-alone security, given that the vehicle remains in the use and control of the judgment-debtor and is a depreciating, uninsured-for-this-purpose asset exposed to loss, damage or diminution in value before an appeal is determined **(Lochab Brothers Ltd v Lilian Munabi Nganga & 2 Others [2007] eKLR).** I decline, accordingly, to disturb the trial court's choice of security on an interim basis, without prejudice to Ground 6 being argued afresh at the substantive hearing of the appeal. 19. As to Section 10 of the Insurance (Motor Vehicles Third Party Risks) Act, Cap 405, I accept that the Applicant has a statutory basis for his claim against Trident Insurance Company Limited, and that Section 10(2)(b) of the Act links an insurer's obligation to pay to whether execution is or is not stayed. That statutory relationship, however, is a matter between the Applicant and his insurer, to be resolved in **Nakuru CMCC No. E813 of 2026;** for interim purposes it does not, without more, displace the Respondents' independent entitlement to the fruits of their own judgment, particularly where, as here, they were never privy to the insurance arrangement. The pendency of the declaratory suit is a legitimate concern, properly ventilated at the substantive hearing of the appeal, but it does not, at this interlocutory stage, outweigh the Respondents' interim entitlement, after more than a year, to the benefit of a judgment obtained after full contestation. 20. What the record does bear out, however, is that the 14-day period fixed for payment of the 50% component was exceptionally tight, particularly for a sum in excess of Kshs. 1.4 million, and the trial court's Ruling does not appear to have engaged with the practical feasibility of raising that sum within so short a window, as opposed to the propriety of the condition itself. This narrower, timing-specific complaint (reflected in Ground 5 of the Memorandum of Appeal) is sufficiently arguable, and sufficiently discrete from the substance of the conditions, to justify an interim adjustment without in any way pre-judging the remaining grounds of appeal. An unrealistically short compliance period risks defeating the very stay that has been granted, not because the condition is wrong in principle, but because the timeframe for meeting it is not. **E. Disposition** 21. For the foregoing reasons, I find no sufficient basis to vary, on an interim basis, the substance or form of the security ordered by the trial court, or to remit the matter to the subordinate court, but I am satisfied that the timeframe fixed for compliance requires limited interim adjustment to render it realistic pending the hearing of the appeal. Accordingly, the following orders do issue;- (a) The Notice of Motion dated 3rd June 2026 is dismissed save that the period of 14 days granted to the appellant/ applicant to deposit Ksh 1,400,000/= as security for the due performance of the decree is extended by 30 days. (b) Pending the hearing and determination of Civil Appeal No. E119 of 2026, execution of the decree and certificate of costs in Nakuru CMCC No. E033 of 2024 shall remain stayed on the same conditions as those imposed by the trial court on 20th May 2026, save that the Applicant shall pay to the Respondents 50% of the decretal sum within thirty (30) days from the date of this Ruling, and shall deposit the balance in an interest-earning account in the joint names of the advocates for the parties within a further thirty (30) days thereafter. (c) In default of compliance with the timelines set out in order (b), the interim stay herein granted shall automatically lapse, and the Respondents would be at liberty to execute the decree. (e) The Respondents having substantially succeeded in resisting the interim relief sought, save for the limited extension of time granted, each party to bear their own costs. It is so ordered. **Dated, signed and delivered at Nakuru this 30th day of July, 2026** **J. K. SERGON** **JUDGE** **In the presence of:** Jamleck/Ruto C/A N/A for the parties