https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12897

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT NAIROBI COUNTY** **MILIMANI HIGH COURT** **HCCSA NO E485 OF 2026** **IRRICO INTERNATIONAL LIMITED……………………………………………….………APPELLANT** **VERSUS** **MOLDPLAST KENYA LIMITED…………………………………………………….RESPONDENT** **RULING** 1. **application** 2. The Appellant has approached this court vide a Notice of Motion dated 1st July 2026, supported by an affidavit of Linus Buhere, sworn on even date and they crave for the following orders: 1. Spent 2. Spent 3. THAT pending hearing and determination of this appeal there be a stay of execution of enforcing the judgment and orders delivered by Honourable Barbara Akinyi on the 2nd day of July 2026 in SCCCOMM/E7439/2024 – Moldplast Kenya Limited versus Irrico International Limited. 4. THAT cost of this application be provided for. 1. The respondent did not react to this application and when it came up for hearing on 28.7.2026, Ms Amutavy who was holding brief for Mr Okach for the Appellant urged this court to allow prayer No 3 of the application. 2. **Analysis and determination** 3. Stay of Execution is prescribed for under order 42 Rule 6 of the Civil Procedure Rules which reads verbatim as below: **6. (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 sub rule (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**. 1. **The appellant herein is dutybound to satisfy this court that it has approached this court without delay, that it risks to suffer substantial loss if stay is not granted, that it has offered security for the due performance of the decree in the event that it losses the appeal, that it’s appeal is arguable, that there exist sufficient cause to grant the stay orders and that the balance of convenience tilts in it’s favour.** 2. **Execution of a judgment is a lawful process and the fact that execution could have commenced, is not in itself proof of risk of an appellant suffering substantial loss if orders of stay of execution are not granted. This court places reliance in the ruling of Justice Gikonyo in James Wangalwa & another v Agnes Naliaka Cheseto Misc Application No 42 of 2011 [2012] eKLR, whereat he rendered himself as follows;** **“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.”** 1. **The last case, while 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.”** 1. Given the nonresistance by the respondent to this application, the inference that this court makes is that the respondent has acquiesced to this application as drawn and that if orders of stay are declined then the appellant stands the risk of suffering substantial loss. 2. Premised upon the foregoing reasons I do find that this application is well merited and I therefore allow it and I proceed to make the following orders; 3. An order of stay of execution is hereby granted in respect of the judgment delivered on 2nd July 2026 in Milimani SCCCOM/E7439/2024; **Moldplast Kenya Limited Versus Irrico International Limited**, until the appeal herein is heard and determined on the following conditions; 4. The appellant shall deposit in court within 45 days from the date hereof, the entire decretal sum of Ksh 743,670. 5. In the event of default in compliance with order 1(a) hereinabove, the stay order shall automatically lapse and the respondent shall be at liberty to execute. 6. Given that this application is unopposed, the Appellant shall bear it’s own costs. IT IS HERBY SO ORDERED Delivered, Dated and Signed at Milimani this 28th day of July 2026. M. S. Shariff Judge