https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11715

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT NAIROBI** **MILIMANI LAW COURTS** **CIVIL APPELLATE DIVISION** **CIVIL APPEAL NO. E783 OF 2025** **JIMMY WAFULA SIMIYU....................................APPELLANT** **-VERSUS-** **MARTIN KIOKO CHENGO................................RESPONDENT** *(Being an Application for stay of execution of the judgment in Milimani CMCC 1331 OF 2013 delivered on 25th July, 2025 by Hon. Thomas Nzioki pending hearing and determination of the Appeal)* **RULING** 1. Before this Court is the Appellant's Notice of Motion dated **8th August 2025** brought under the provisions of **Order 42 Rule 6 of the Civil Procedure Rules**, **Sections 1A, 1B, 3A and 63(e) of the Civil Procedure Act**, **Rule 3 of the High Court (Practice and Procedure) Rules** and all other enabling provisions of the law. 2. Through the application, the Appellant seeks principally: 3. ***An order of stay of execution of the judgment delivered on 25th July 2025 in Milimani CMCC No. 1331 of 2013 pending the hearing and determination of the appeal.*** 4. ***That the stay be granted on condition that the Appellant deposits Kshs.500,000 in an interest earning joint account in the names of the parties' advocates within forty-five (45) days.*** 5. ***That costs of the application abide the outcome of the appeal.*** 6. The application is premised on the grounds appearing on its face and is supported by the affidavit of **Jimmy Wafula Simiyu**, sworn on **8th August 2025**. 1. The Appellant depones that judgment in the subordinate court was delivered on **25th July 2025** in favour of the Respondent. Being dissatisfied with the whole of the said judgment, he lodged the present appeal being **High Court Civil Appeal No. E783 of 2025** and requested certified typed proceedings for purposes of preparing and filing the Record of Appeal. 2. The Appellant further avers that immediately after delivery of judgment, he sought interim stay before the trial court. The subordinate court directed that a formal application be filed, following which the Appellant lodged an application dated **1st August 2025**. In a ruling delivered on **4th August 2025**, the trial court granted interim orders pending inter partes hearing on condition that the Appellant deposits the entire award for special damages amounting to **Kshs.1,506,499.87**. 1. The Appellant contends that the said condition is onerous, unreasonable and effectively impedes his constitutional right of appeal. He maintains that unless this Court intervenes, the Respondent is likely to proceed with execution before the appeal is heard, thereby rendering the appeal nugatory. 2. It is further deponed that should execution issue and the decretal sum be paid over to the Respondent, there is a real apprehension that the Respondent may not be in a position to refund the decretal amount if the appeal ultimately succeeds. Consequently, the Appellant asserts that he stands to suffer substantial loss unless an order of stay is granted. 1. The Appellant nevertheless expresses his willingness to furnish security for the due performance of the decree and proposes to deposit **Kshs.500,000** in an interest earning joint account within **forty-five (45) days** as security pending determination of the appeal. 1. The Respondent opposed the application through a Replying Affidavit and written submissions. The Respondent's position is that the Appellant has failed to satisfy the mandatory conditions for grant of stay under **Order 42 Rule 6 of the Civil Procedure Rules**, particularly the requirement of demonstrating substantial loss. The Respondent further contends that the Appellant merely speculates that the Respondent would be unable to refund the decretal sum and has placed no evidence before the Court to support that allegation. The Respondent therefore urges the Court to dismiss the application, or alternatively, should stay be granted, to order deposit of the entire decretal sum as security. 2. Both parties filed comprehensive written submissions together with authorities in support of their respective positions, which this Court has carefully considered alongside the pleadings, affidavits and the applicable law. 1. Having considered the application, the affidavits on record, the rival submissions and the authorities cited by counsel, the Court is of the considered view that the following issues arise for determination: * 1. ***Whether the Application was filed without unreasonable delay*** 2. ***Whether the Appellant has demonstrated substantial loss*** 3. ***Whether the Security Ordered by the Subordinate Court Should be Interfered With*** **Analysis and Determination** 1. The principles governing the grant of stay of execution pending appeal are well settled. The jurisdiction of this Court is donated by **Order 42 Rule 6(2) of the Civil Procedure Rules**, which provides that: ***"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. It follows that an applicant must satisfy three mandatory conditions before the Court can exercise its discretion in his favour, namely: 2. ***The application must have been filed without unreasonable delay;*** 3. ***The applicant must demonstrate that he is likely to suffer substantial loss unless stay is granted; and*** 4. ***The applicant must furnish such security as the Court may order for the due performance of the decree.*** 5. Although the jurisdiction to grant stay is discretionary, that discretion is not exercised arbitrarily. It must be exercised judicially, on sound legal principles and in a manner that balances the competing rights of both parties. On the one hand is the Appellant's constitutional and statutory right to pursue an appeal; on the other is the Respondent's equally important right to enjoy the fruits of a judgment lawfully obtained. 6. The Court of Appeal in ***Butt v Rent Restriction Tribunal*** **[1982] KLR 417** laid down the guiding principles governing applications for stay pending appeal. The Court held that the discretion should be exercised in a manner that does not render an appeal nugatory, while at the same time ensuring that a successful litigant is not unnecessarily deprived of the fruits of his judgment. The Court further emphasized that each case must be determined on its own peculiar circumstances. 7. Similarly, the Supreme Court in ***Board of Governors, Moi High School Kabarak & Another v Malcolm Bell*** **[2013] eKLR** underscored that the grant of interim relief is an equitable remedy intended to preserve the subject matter of litigation pending the determination of the substantive dispute. Such relief should therefore be granted only where the interests of justice so demand and after balancing the competing rights of the parties. 8. The Court will therefore examine the present application against the statutory requirements under **Order 42 Rule 6**. **Whether the Application was filed without unreasonable delay** 1. The impugned judgment was delivered on **25th July 2025**. The Appellant initially moved the subordinate court by an application dated **1st August 2025** seeking stay of execution. Following the ruling delivered on **4th August 2025**, the present application was filed before this Court on **8th August 2025**. 1. In the Court's view, the Appellant acted with reasonable promptitude. There is no evidence of indolence or inordinate delay. Indeed, the chronology of events demonstrates that immediately after delivery of judgment, the Appellant took steps both before the subordinate court and subsequently before this Court in pursuit of interim relief. 2. Consequently, this Court is satisfied that the first requirement under **Order 42 Rule 6** has been met. **Whether the Appellant has demonstrated substantial loss** 1. The cornerstone of an application for stay pending appeal is proof of substantial loss. This has consistently been emphasized by superior courts. 2. In the cited decision of ***Kenya Shell Limited v Benjamin Karuga Kibiru & Another*** **[1986] KLR 410**, the Court of Appeal held that substantial loss is the cornerstone of the jurisdiction under **Order 42 Rule 6**, and that without evidence of substantial loss, it would be difficult to justify depriving a successful litigant of the fruits of his judgment. 3. The Appellant contends that if execution proceeds and the decretal amount is paid over to the Respondent, he may not recover the money in the event that the appeal succeeds because the Respondent's financial ability to refund the decretal sum is unknown. 1. The Respondent, on the other hand, argues that these assertions are speculative and unsupported by any evidence. The Respondent further maintains that he had previously raised over Kshs.1.5 million to redeem the motor vehicle from the financier, thereby demonstrating financial capability. 2. The Appellant contends that unless stay is granted, he is apprehensive that the Respondent may not be able to refund the decretal sum should the appeal ultimately succeed. However, save for that bare assertion, no material has been placed before this Court demonstrating the Respondent's alleged inability to make such a refund. 3. The Court of Appeal in ***National Industrial Credit Bank Ltd v Aquinas Francis Wasike & Another* [2006] eKLR** held that although the evidential burden may shift to the respondent once a reasonable apprehension is expressed, the applicant must first lay a factual basis for such apprehension. Mere speculation or generalized allegations are insufficient. 4. Likewise, in ***Kenya Shell Ltd v Benjamin Karuga Kibiru & Another* [1986] KLR 410**, **Platt, Ag. JA** emphasized that substantial loss is the cornerstone of an application for stay pending appeal and that an applicant must demonstrate, by evidence, the loss that is likely to be suffered if execution proceeds. 5. In the present case, the Appellant has not placed before this Court any evidence to demonstrate that the Respondent lacks the financial ability to refund the decretal sum. The supporting affidavit merely expresses apprehension without disclosing any factual basis upon which the Court can conclude that the Respondent would be incapable of making restitution should the appeal succeed. 6. Nevertheless, this Court is mindful that the Appellant has exercised his undoubted right of appeal and that the Court retains discretion to preserve the substratum of the appeal where the interests of justice so require. The question that therefore remains is whether the conditions imposed by the subordinate court sufficiently balance the competing rights of the parties or whether this Court ought to interfere with the exercise of that discretion. **Whether the Security Ordered by the Subordinate Court Should be Interfered With** 1. The remaining issue for determination is whether this Court should interfere with the condition imposed by the subordinate court requiring the Appellant to deposit the entire amount of the special damages awarded as security pending the hearing of the application for stay. 1. It is common ground that in its ruling delivered on **4th August 2025**, the subordinate court granted the Appellant interim stay of execution on condition that he deposits the full amount awarded as special damages, being **Kshs. 1,506,499.80**, pending the inter partes hearing of the application. The Appellant now urges this Court to substitute that condition with an order requiring the deposit of **Kshs. 500,000** only. 1. The Court has carefully considered that invitation. In my respectful view, the issue is not whether this Court would have imposed a different condition had it been sitting as the court of first instance. Rather, the issue is whether the condition imposed by the learned trial magistrate was so manifestly excessive, unreasonable, or based on wrong principles as to warrant interference by this Court. 2. It is a settled principle that an appellate court ought to exercise restraint before interfering with the exercise of judicial discretion by a lower court. In ***Mbogo & Another v Shah* [1968] EA 93**, the former Court of Appeal for East Africa held that an appellate court will not interfere with the exercise of discretion unless it is satisfied that the court below misdirected itself in law, took into account irrelevant considerations, failed to take into account relevant considerations, or that the decision is plainly wrong. That principle has consistently been applied by the Court of Appeal in Kenya. 3. Having examined the ruling of the subordinate court alongside the material placed before this Court, I find no indication that the learned trial magistrate acted on wrong principles or exercised discretion unreasonably. On the contrary, the learned magistrate appreciated that stay of execution is an equitable remedy and imposed a condition intended to secure the due performance of the decree while preserving the Appellant's right to pursue an appeal. 4. The Court is unable to agree with the Appellant's contention that the condition requiring the deposit of the full amount of the special damages was oppressive merely because it exceeds the amount the Appellant is willing to provide. The adequacy of security is not determined by what an applicant proposes to deposit, but by what the Court considers sufficient to safeguard the interests of the successful litigant. 5. Indeed, **Order 42 Rule 6(2)(b)** expressly provides that the applicant must furnish "such security as the court orders" for the due performance of the decree. The language of the Rule leaves the determination of appropriate security to the Court and not to the judgment debtor. 6. In ***Arun C. Sharma v Ashana Raikundalia t/a Raikundalia & Co. Advocates & 2 Others* [2014] eKLR**, the Court stated that, ***“The purpose of the security needed under Order 42 is to guarantee the due performance of such decree or order as may ultimately be binding on the applicant. It is not to punish the judgment debtor………. Civil process is quite different because in civil process the judgment is like a debt hence the applicants become and are judgment debtors in relation to the respondent. That is why any security given under Order 42 rule 6 of the Civil Procedure Rules acts as security for due performance of such decree or order as may ultimately be binding on the applicants. I presume the security must be one which can serve that purpose.”*** 1. Similarly, in ***Mwaura Karuga t/a Limit Enterprises v Kenya Bus Services Ltd & 4 Others* [2015] eKLR**, the High Court held that the security contemplated under **Order 42 Rule 6** should be sufficient to secure the entire decree that may ultimately become binding upon the applicant, including interest and costs where appropriate. The Court observed that the expression "such decree as may ultimately be binding" refers to the decree as it will stand upon determination of the appeal. 2. This Court respectfully agrees with those principles. The object of security is not merely symbolic compliance with **Order 42 Rule 6**. It must constitute real and adequate assurance that should the appeal fail, the decree-holder will not be driven to another prolonged process of execution after already having successfully litigated his claim. 3. The present dispute has been in the courts since **2013**. Judgment was only delivered on **25th July 2025**, after approximately twelve years of litigation. The Respondent has therefore waited a considerable period before obtaining the fruits of his judgment. That is a relevant consideration which this Court cannot ignore. 4. The Court is alive to the principle that litigation must, at some point, come to an end. As observed by the Court of Appeal in ***Machira t/a Machira & Co. Advocates v East African Standard* (No. 2) [2002] KLR 63**, the ordinary principle is that a successful litigant should not be deprived of the fruits of his judgment except for good cause demonstrated in accordance with the law. 5. In the instant case, the Appellant has not demonstrated exceptional circumstances to justify a departure from the condition imposed by the subordinate court. Apart from expressing dissatisfaction with the amount ordered, no evidence has been presented to show that compliance with the condition is impossible or that the learned magistrate exercised discretion injudiciously. 1. The Court also notes that the subordinate court did not require the Appellant to satisfy the entire decree. Rather, it ordered the deposit of the amount awarded under the head of special damages, which represents a specific and ascertainable sum proved during trial. In the circumstances of this case, such a condition cannot be said to have been arbitrary or punitive. 1. In my view, reducing the security to **Kshs. 500,000** would inadequately protect the Respondent's interests and would effectively substitute this Court's discretion for that of the subordinate court without any legal basis for doing so. Such an approach would undermine the very purpose of security under **Order 42 Rule 6,** which is to strike a fair balance between the Appellant's right of appeal and the Respondent's right to enjoy the fruits of a lawful judgment. 2. Accordingly, I find no sufficient basis upon which this Court can interfere with the condition imposed by the subordinate court. On the contrary, I am satisfied that the condition requiring the deposit of the full amount of the special damages was reasonable, proportionate, and consistent with the objectives of **Order 42 Rule 6 of the Civil Procedure Rules.** **Disposition** 1. Having carefully considered the Notice of Motion dated **8th August 2025**, the affidavits filed by the parties, the rival submissions, the authorities cited and the applicable law, this Court is now called upon to determine whether the Appellant has established sufficient grounds to warrant the grant of an order of stay of execution pending appeal and, if so, upon what terms. 2. As already observed, the jurisdiction donated by **Order 42 Rule 6 of the Civil Procedure Rules** is discretionary. That discretion, however, must be exercised judiciously and upon settled legal principles. The Court must strike a balance between two competing rights; on the one hand, the Appellant's undoubted right to pursue an appeal, and on the other hand, the Respondent's equally legitimate right to enjoy the fruits of a judgment lawfully obtained. 3. This Court has found that the application was filed without unreasonable delay. The Court has also considered the Appellant's apprehension that, should execution proceed, the Respondent may not be able to refund the decretal sum if the appeal ultimately succeeds. However, that apprehension has not been supported by any tangible or cogent evidence. Mere allegations regarding a decree-holder's inability to refund a decretal sum cannot, without more, suffice to establish substantial loss. As was stated by the Court of Appeal in ***Kenya Shell Limited v Benjamin Karuga Kibiru & Another* [1986] KLR 410**, substantial loss remains the cornerstone upon which an application for stay is anchored. 4. Even so, this Court is mindful that the purpose of an order for stay is to preserve the subject matter of the appeal where the interests of justice so demand. The Court is equally guided by the principle enunciated in ***Butt v Rent Restriction Tribunal* [1982] KLR 417**, that a court should exercise its discretion in a manner that does not render an appeal nugatory while ensuring that a successful litigant is not unjustly deprived of the fruits of his judgment. 5. The principal issue in this application, however, concerns the adequacy of the security to be furnished. The Appellant urges this Court to reduce the security ordered by the subordinate court from **Kshs. 1,506,499.80** to **Kshs. 500,000**, contending that the former is onerous and effectively impedes his right of appeal. 6. With respect, I am unable to agree with that submission. 7. The learned trial magistrate considered the application for stay, appreciated the competing rights of the parties and exercised judicial discretion by granting interim stay on condition that the Appellant deposits the amount awarded as special damages. I have found nothing on the record to suggest that the learned magistrate misdirected himself on the law, considered irrelevant matters, failed to consider relevant factors, or arrived at a decision that was plainly wrong. 8. It bears repeating that this Court does not sit on appeal against the exercise of discretion merely because it might itself have reached a different conclusion. As stated in ***Mbogo & Another v Shah* [1968] EA 93**, an appellate court will only interfere with the exercise of judicial discretion where it is demonstrated that the lower court acted upon wrong principles or that the decision is plainly erroneous. No such circumstances have been demonstrated in the present case. 9. Moreover, the Court is persuaded that the condition imposed by the subordinate court cannot properly be described as punitive or oppressive. The amount ordered to be deposited represents the special damages awarded after trial, being a liquidated and ascertainable sum. Requiring its deposit as security preserves both parties' interests: it secures the Respondent against the risk of an unsatisfied decree while simultaneously preserving the Appellant's right to pursue the appeal without immediate execution. 10. The Court is further persuaded by the reasoning in ***Mwaura Karuga t/a Limit Enterprises v Kenya Bus Services Ltd & 4 Others* (supra)**, where it was held that the security contemplated under **Order 42 Rule 6** should adequately secure the decree that may ultimately become binding upon the applicant. Likewise, ***Arun C. Sharma v Ashana Raikundalia t/a Raikundalia & Co. Advocates & 2 Others* (supra)** underscores that the object of security is to guarantee due performance of the decree and not merely to provide a token deposit. 11. I also take into account that the dispute has remained in the judicial system for well over a decade before culminating in the judgment delivered on 25th July 2025. The Respondent has patiently litigated his claim to conclusion and should not be subjected to further uncertainty through conditions that inadequately safeguard the decree in his favour. 1. In my considered view, the Appellant has not demonstrated any sufficient reason to warrant this Court's interference with the condition imposed by the subordinate court. To reduce the security to **Kshs. 500,000** would, in the circumstances of this case, fail to achieve the objective of securing the due performance of the decree and would unjustifiably prejudice the Respondent. 2. Consequently, while this Court is prepared to preserve the Appellant's right of appeal by granting an order of stay of execution, it is only just that such stay be granted upon the same conditions imposed by the subordinate court. **Orders** 1. Accordingly, the Notice of Motion dated 8th August 2025 succeeds only to the extent that a stay of execution is granted on the following terms: 2. ***There shall be a stay of execution of the Judgment and Decree delivered on 25th July 2025 in Milimani CMCC No. 1331 of 2013, pending the hearing and determination of this appeal.*** 3. ***The stay is strictly conditional upon the Appellant depositing the sum of Kenya Shillings One Million Five Hundred and Six Thousand Four Hundred Ninety-Nine and Eighty Cents (Kshs. 1,506,499.80), being the amount awarded as special damages by the trial court, in an interest-earning joint account in the names of the advocates for the parties, or in Court, within fourteen (14) days from the date of this ruling.*** 4. ***For avoidance of doubt, the condition imposed by the subordinate court requiring the deposit of the said sum is hereby affirmed, this Court finding no basis upon which to interfere with the learned trial magistrate's proper exercise of discretion.*** 5. ***In default of compliance with Order (b) above within the stipulated period, the stay of execution shall automatically lapse without the necessity of any further order of this Court, whereupon the Respondent shall be at liberty to proceed with execution.*** 6. ***The Appellant shall take all necessary steps to facilitate the expeditious prosecution of the appeal, including filing and serving the Record of Appeal within sixty (60) days from the date hereof, subject to the availability of the typed proceedings.*** 7. ***The costs of the Notice of Motion dated 8th August 2025 shall abide the outcome of the appeal***. 8. It is so ordered. **DATED, SIGNED AND DELIVERED AT NAIROBI THIS 28TH DAY OF JULY 2026** **HON. L. P. KASSAN** **JUDGE**