https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8559

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT NAIROBI** **COMMERCIAL AND ADMIRALTY DIVISION** **HCCOMM NO. E281 OF 2020** **HIGHCHEM MARKETING LIMITED………..….……………PLAINTIFF** **VERSUS** **NEXTGEN PHARMACEUTICALS KENYA LIMITED..…DEFENDANT** **RULING** 1. The Court is called upon to determine the application dated 19th November 2025 brought by the Defendant/Applicant under Order 42 Rule 6 and Order 22 Rule 25 of the Civil Procedure Rules, as well as Articles 48, 50 and 159 of the Constitution. The Applicant seeks an order of stay of execution of the judgment delivered on 6th November 2025 and any consequential orders pending the hearing and determination of an intended appeal. 2. The application is supported by the affidavit of Salauddin Yousuf Khan who deposes that the Applicant has lodged a notice of appeal as it is aggrieved the judgment of the Court; that unless stay is granted the subject matter of the intended appeal will be rendered nugatory; that no prejudice will be occasioned to the Respondent and that the Applicant is willing to meet any conditions for stay. 3. The Applicant contends that, being aggrieved with the judgment of this court, it appealed the same. And further that the appeal raises weighty and arguable issues of both law and fact. That the judgment sum of Kshs. 28,049334.13 is substantial and if execution proceeds, the Applicant will suffer irreparable damage. 4. It was submitted for the Applicant that the judgment is not a case of a simple money decree, but one where enforcement will permanently alter its commercial existence before the appellate court pronounces itself on the intended appeal. That its construction equipment, machinery and other property garnished and/or attached in execution and frustrate its operations and financial obligations. 5. The application was opposed through the replying affidavit of Nelson Gachuiri, the Respondent’s Chief Executive Officer sworn on 10th December 2025, in which he depones the Applicant has failed to demonstrate substantial loss in the event execution proceeds, that no adequate security or binding assurance to guarantee due performance if the appeal fails, and that there was delay in making the instant application. 6. In submissions it was also argued that the Applicant has not met the threshold for grant of the orders sought. That the Applicant having ceased the use of the trademark paraflash in the year 2020, there was no likelihood of the Applicant suffering any substantial loss. And that in any case, as has been determined the court, it is the Respondent who stands to suffer irreparable harm if its right to exclusive use of its registered trademark is not protected by an injunction. 7. Having considered all the material placed before the court, the issue for determination is whether the Applicant is entitled to the orders sought. 8. Order 42 Rule 6(2) of the Civil Procedure Rules, lays down the conditions to be satisfied by an applicant seeking a stay of execution pending appeal. The conditions to be satisfied are as follows: 9. *The applicant must satisfy that she stands to suffer substantial loss if the stay is not granted,* 10. *That the application has been filed without undue delay, and* 11. *That the applicant is willing to offer such security as may be ordered by the court.* 12. The purpose of an application for stay of execution pending an appeal is to preserve the subject matter in dispute so that the rights of the appellant who is exercising the undoubted right of appeal are safeguarded, and the appeal, if successful, is not rendered nugatory. **(See RWW v EKW (2019) eKLR).** 13. However, in doing so, the court should weigh this right against the success of a litigant who should not be deprived of the fruits of his/her judgment. The court also has a duty to ensure that no party suffers prejudice that cannot be compensated by an award of costs.Indeed, to grant or refuse an application for stay of execution pending appeal is discretionary. 14. The judgment sought to be stayed was delivered on 6th November 2025, whereas the application for stay was filed on 19th November 2025. There was therefore, no unreasonable delay in bringing the application. 15. The question whether or not the intended appeal is competent is a matter falling within the province of the appellate court. At this stage, the only concern is whether sufficient grounds have been laid to warrant preservation of the subject matter pending the intended appeal. 16. In the present case, the Applicant contends that the enforcement of the judgment at this stage would effectively alter its commercial existence and render the appeal nugatory. On the other hand, the Respondent maintains that the Applicant will suffer no prejudice since they may recover any sums from them in the event the appeal succeeds. 17. This is not just a money judgment, but also one that granted a permanent injunction against the use of a trade mark. I am persuaded by the Respondent’s argument that no substantial loss will be occasioned to the Applicant who ceased the use of the infringing trade mark in 2020. 18. As to the monetary aspect of the decree, the legal burden of proof lies with the Applicant to show that the Respondent will be unable to refund the money in the event the intended appeal succeeds. Other than a mere averment, no such proof has been provided by the Applicant. The Respondent has on the other hand stated, and exhibited bank statements, to show that it has the means to reimburse the decretal sum in the event the appeal succeeds. 19. In the totality of the circumstances herein, I am not satisfied that the Applicant has met the threshold for the grant of a stay pending the intended appeal. 20. Consequently, I find the Notice of Motion dated 19th November 2025 lacks merit and the same is dismissed with costs to the Respondent. Orders accordingly. **RULING** delivered virtually, dated and signed at **NAIROBI** This **11th** day of **June** 2026. **P.M. MULWA** **JUDGE** **In the presence of:** *Ms. Makhokha* for Plaintiff/respondent *Mr. Ougo* for Defendant/applicant Court Assistant*: Lispa*