Ngugi v Mwanzia & another (Civil Appeal E302 of 2025) [2026] KEHC 7272 (KLR) (26 May 2026) (Ruling)

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT ELDORET** **CIVIL APPEAL NO. E302 OF 2025** **JESSE WARAKI NGUGI………………………………………………….…..APPELLANT** **VERSUS** **DENNIS MWANZIA…………………………………………………...1ST RESPONDENT** **JOSEPH PETER NGUGI…………………………………………….2ND RESPONDENT** **Coram: Before Justice R. Nyakundi** **KRK Advocates LLP** **M/s Korir Lagat Advocates LLP** **RULING** 1. Before this Court is a notice of motion dated 30th day of January 2026, brought under Section 1A, 3A of the Civil Procedure Act, Cap 21 Laws of Kenya Order 42 Rule 6 Order 51 Rule 1 and Order 22 Rule 22 of the Civil Procedures Rules, Article 159 of the Constitution and any other enabling provisions of the Law. The Appellant seeks the following orders: 2. *Spent.* 3. *That this Honourable Court be pleased to re-certify as urgent, the Application dated 5th January, 2026 and proceed to grant an interim Order for stay of execution of the judgment delivered on 28th November, 2025 in Eldoret SCCC E723 of 2024- Dennis Mwanzia v Joseph Peter Ngugi & Jesse Waraki Ngugi pending the hearing and determination of the said Application dated 5th January, 2026 as outlined under prayer 3 of the said Application.* 4. *That the costs of this application be in the cause.* 5. The application is based on the following grounds: 6. *That judgment herein was delivered on 28th November, 2025 for Kshs. 673,000/-plus costs and interests the Applicant/Appellant being aggrieved with the decision of this Honourable Court has lodged the Appeal herein against the judgment of the Trial Magistrate.* 7. *That the Applicant being dissatisfied with the Judgment filed the Memorandum of Appeal dated 4th December, 2025 with the corresponding Application seeking stay of execution pending the Hearing and determination of the Appeal.* 8. *That the Honourable Judge seeing no danger as at that time, he did not grant any interim orders of stay and instead fixed the matter for inter-partes hearing on 16th December, 2024however, the Respondent have moved to execute the decretal* *amount thereby necessitating the filing of this Application.* 9. *That the subsequent attachment shall render the Appeal herein and the Application nugatory/moot thereby curtailing the Applicant's right of Appeal as they will be forced/compelled to meet the Judgment award, of which they are contesting the trial's Court holding on the issue of liability and quantum.* 10. *That the Respondent has already initiated execution proceedings and unless the Application dated 5th January,2026 is handled on priority basis, the Applicant stands to suffer irreparable loss and damages as the Appeal will be rendered nugatory.* 11. *That it is in the interests of justice that the Application dated 4th October, 2024 be placed, before the Court and/or interim orders granted to protect the substratum of the Appeal therein.* 12. *That this Application is made in good faith and without unreasonable delay and it will not occasion any prejudice to the Respondent* 13. In support of the application is the affidavit of one Ann Kirigo who deponed as follows: 14. *I am an Advocate of the Honourable Court practicing as an associate in the firm of KRK Advocates LLP who have conduct of this matter with instructions, duly authorized and competent to make this Affidavit on behalf of the Appellant/Applicant herein.* 15. *That judgment herein was delivered on 28th November, 2025 for Kshs, 673,000/- plus costs and interests, the Applicant/Appellant being aggrieved with the decision of this Honourable Court has lodged the Appeal herein against the judgment of the Trial Magistrate.* 16. *That the Applicant being dissatisfied with the Judgment filed the Memorandum of Appeal dated 4th December, 2025 with the corresponding Application seeking stay of execution pending the Hearing and determination of the Appeal.* 17. *That the Honourable Judge seeing no danger as at that time, he did not grant any interim orders of stay and instead fixed the matter for inter-partes hearing on 16th December, 2024.* 18. *That the Respondent has moved to execute the decretal amount thereby necessitating the filing of this Application.* 19. *That the subsequent attachment shall render the Appeal herein and the Application nugatory/moot thereby curtailing the Applicant's right of Appeal as they will be forced/compelled to meet the Judgment award, of which they are contesting the trial's Court holding on the issue of liability and quantum.* 20. *That the Respondent has already initiated execution proceedings and unless the Application dated 5th January, 2026 is handled on priority basis, the Applicant stands to suffer irreparable loss and damages as the Appeal will be rendered nugatory.* 21. *That it is in the interests of justice that the Application dated 5th January, 2026 be placed before the Court and/or interim orders granted to protect the substratum of the Appeal therein.* 22. *That this Application is made in good faith and without unreasonable delay and it will not occasion any prejudice to the Respondent.* 23. *That the Application has been brought without unreasonable or undue delay.* **Decision** 1. The remedy on stay of execution pending appeal has it focus on Order 42 Rule 6 of the CPR requiring applicants to prove substantial loss, timely filing and provision of security. The key cases already decided by the Courts emphasized that the Court must prevent the appeal from being rendered nugatory while ensuring the successful party isn’t deprived of judgment fruits. 2. The fundamental principles as alluded above and as applied are clear from the following authorities: In the case of **RWW V EKW [2019] eKLR** Affirmed that the core purpose of a stay is to preserve the subject matter of the appeal to ensure it is not rendered nugatory. On the other hand, **Halal & Another vs Thornton & Tupin Ltd** established the essential tripartite test: (1) substantial loss, (2) timely application, and (3) provision of security. The Court also in **Sonalux Limited & Another v Barclays Bank of Kenya Ltd & 2 Others [2008] eKLR** addressed the limitation of staying "negative orders," clarifying that orders requiring no action cannot be stayed. The Locus classicus case of **Butt v Rent Restriction Tribunal,** a foundational case emphasizing that the Court must exercise its discretion to ensure the appeal is not rendered nugatory. Finally, in **Kimondo & Another v Progressive Credit Ltd (Civil Appeal 49 of 2025)** highlights the dismissal of stay applications when the previous order is deemed negative and incapable of execution. 1. *The major principles upon which the Court can exercise its discretion to grant a stay of proceedings pending appeal are as follows:* 2. *There must be a pending appeal;* 3. *The appeal must be competent and arguable on its merits;* 4. *A stay of proceedings will be granted to preserve the res;* 5. *Where a stay of proceedings will cause greater hardship than when it is refused, the Court will not grant it;* 6. *Where a stay is likely to render the rights sought to be protected null and void, it will be refused;* 7. *Where an appeal raises issue of jurisdiction, it is a strong factor in support;* 8. Consequently, under Order 42 Rule 6 the application is granted as follows: 9. *An order be and is hereby made for a relief of stay of execution of the judgment and decree of Kshs 673,000/= in Eldoret CMCC E723 of 2024 pending the hearing and determination of the appeal filed in Civil Appeal No. 302 of 2025.* 10. *That in furtherance to the above the intended Appellant to file the record of appeal within 30 days from today’s ruling.* 11. *That the intended appellant appeal is conditioned on deposit to the Deputy Registrar of the High Court the decretal of Kshs 673,000 or in the alternative in the joint interests account of both legal Counsel/Advocates retained by each of the parties to this appeal within 30 days of the ruling of this Court.* 12. *That in default of clause (c) places the intended appellant the risk of lapsing the appeal or having it struck out for non-compliance.* 13. *That this matter be mentioned before the Deputy Registrar of the High Court for purposes of monitoring compliances on the 6th day of June 2026. The costs of this application to abide the outcome of this appeal.* **DELIVERED, DATED AND SIGNED AT ELDORET ON THIS 26TH DAY OF MAY, 2026** **…………………………………** **R. NYAKUNDI** **JUDGE**