https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9788

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT KISUMU** **CIVIL APPEAL NO. E042 OF 2025** **JOB NYAMWAKA…………………………………………………………..APPELLANT** **VERSUS** **JAYENDRAKUMAR DAHYABHAI PATEL &** **DIPAKKUMAR JAYENDRAKUMAR PATEL T/A** **SHASHANK HARDWARE & GENERAL STORES………….1ST RESPONDENT** **KEVIN ONDARI………………………………………………………2ND RESPONDENT** **RULING** 1. The Appellant’s notice of motion dated 17th February, 2025 is expressed to be brought under *Order 42 Rule 6* and *Order 51 Rule 1* of the *Civil Procedure Rules* and all other enabling provisions of the law and seeks the following orders: 2. **[Spent].** 1. **[Spent].** 2. **The Honourable Court be pleased to stay the execution of the consent judgement and decree of the trial court in *Kisumu MCCC/E292/2023* as against the Appellant pending the hearing and determination of the appeal herein.** 3. **Costs of this application be in the cause.** 4. The grounds upon which the motion is premised are that a consent judgement was recorded in *Kisumu MCCC/E292/2023* on 6th March, 2024, in which the Appellant was held jointly liable with the 2nd Respondent for the decretal sum of Ksh.1,687,705/-. The Applicant contends that he was merely an employee of the 2nd Respondent, the proprietor of Gesa Interiors, a business that had been supplied with goods by the 1st Respondent, and that he ought not to have been held personally liable. 1. The Appellant avers that he had instructed his advocates to seek the striking out of his name from the proceedings, resulting in the filing of an application dated 30th November, 2023. He maintains that, without his knowledge or authority, his advocates abandoned the said application and proceeded to record the consent judgement that imposed liability upon him. 2. The Appellant further states that when he subsequently challenged the consent judgement through an application dated 27th August, 2024, the advocates who recorded the consent did not file any response disputing his allegation that they lacked instructions to bind him. 3. The Appellant’s application seeking to set aside the consent judgment was dismissed by the trial court in a ruling delivered on 28th January, 2025, prompting him to lodge the present appeal. He contends that the appeal raises serious and arguable issues of law which warrant consideration by this Court. 4. The Appellant further states that the 1st Respondent has commenced execution proceedings and has extracted warrants for his arrest in execution of the consent judgement. He fears that unless an order of stay of execution is granted, he is liable to be arrested at any time, thereby rendering the pending appeal nugatory. 5. The Appellant expresses his willingness to furnish security for the due performance of the decree, including providing a title deed belonging to his parents or such other security as the Court may direct. He contends that the application has been brought in good faith, without undue delay, and that it is in the interests of justice that the orders sought be granted so as to avert an apparent miscarriage of justice. 6. The application is supported by the Appellant’s affidavit sworn on 17th February, 2025. He deposes in his affidavit that a consent judgement was recorded in *Kisumu MCCC/E292/2023* on 6th March, 2024, condemning him, as the 2nd Defendant, jointly with the 2nd Respondent (the 1st Defendant) to pay the decretal sum of Ksh.1,687,705/-. He avers that he was merely an employee of the 2nd Respondent, serving as a shop attendant at Gesa Interiors, a business owned by the 2nd Respondent and supplied with goods by the 1st Respondent. In support of this assertion, he has annexed a copy of the certificate of registration of the business marked “JN1”. 7. The Appellant further deposes that, being only an employee, he instructed his then advocates to apply for the striking out of his name from the proceedings. He states that an application dated 30th November, 2023 was consequently filed for that purpose and has annexed copies thereof together with an affidavit of service marked “JN2”. 8. He contends that, unbeknownst to him, his advocates abandoned the said application and proceeded to record the consent judgement on 6th March, 2024, thereby rendering him jointly liable for the decretal sum. He avers that he only became aware of the consent judgement when police officers sought to arrest him in execution thereof. 9. The Appellant further deposes that upon learning of the consent judgement, he instructed his current advocates to file an application dated 27th August, 2024 seeking to set aside the consent judgement. A copy of the said application is annexed and marked “JN3”. 10. He states that the firm of Ombiro Advocates, which allegedly recorded the consent on his behalf, was served with the application but did not file any response disputing his contention that they lacked instructions to bind him through the consent. 11. The Appellant further avers that the trial court dismissed his application vide a ruling delivered on 28th January, 2025, a copy of which is annexed and marked “JN4”. Being aggrieved by that decision, he has lodged the present appeal. 12. He deposes that, in the meantime, the Respondents have commenced execution proceedings and have extracted warrants for his arrest in execution of the consent judgment. He has annexed a copy of the warrant marked “JN5”. He states that unless an order of stay of execution is granted, he is liable to be arrested and committed to civil jail, notwithstanding that the decretal amount is beyond his financial means as a shop attendant. 13. The Appellant maintains that the appeal raises serious and arguable issues of law and that, unless stay is granted, the appeal will be rendered nugatory. He further expresses his willingness to furnish security for the due performance of the decree and states that his father is prepared to offer the family title deed as security. He concludes by asserting that the application has been brought in good faith and in the interests of justice to avert a miscarriage of justice. 14. The application is opposed and to that end the 1st Respondent filed a replying affidavit sworn on 4th March, 2025 by **Dipakkumar Jayendrakumar Patel.** 15. In his affidavit, the said deponent describes himself as one of the proprietors of Shashank Hardware & General Stores and states that he has also been authorized by his co-proprietor, **Jayendrakumar Dahyabhai Patel**, to swear the affidavit on his behalf. 16. The deponent avers that the present application is frivolous, mischievous and intended to delay the 1st Respondent from enjoying the fruits of a lawful judgement. He disputes the Appellant's assertion that he only became aware of the consent judgment upon reading the court proceedings, contending that after the consent was recorded on 6th March, 2024, the Appellant appeared in court on several occasions in the company of his advocate, **Mr. Ombiro,** including on 3rd June’ 2024, 31st July, 2024 and 5th August, 2024. 17. The deponent further avers that on 5th August 2024 the Appellant made part payment towards the decretal sum and agreed to liquidate the balance by monthly instalments of Ksh.100,000/-. According to the deponent, at no time during those appearances did the Appellant deny knowledge of the consent judgment. 18. The deponent further states that the Appellant was served with a notice to show cause on 25th April, 2024 but did not then raise any complaint regarding the consent judgement. In support of this assertion, he has annexed a copy of the notice to show cause, the affidavit of service and details of the recipient marked “DJP-1”. 19. The deponent disputes the Appellant’s contention that he was merely an employee of the 2nd Respondent. He avers that both the Appellant and the 2nd Respondent operated the business known as Gesa Interiors, which was not a limited liability company, and that the debt giving rise to the suit was incurred while both were running the business. 20. The deponent further states that the Appellant was in charge of the day-to-day operations of the business, received supplies on its behalf, signed for deliveries and provided his national identity card details in relation to the transactions. He refers to his replying affidavit filed in response to the Appellant's application dated 30th November, 2023, annexed and marked “DJP-3”. 21. Regarding the application dated 30th November, 2023 seeking to strike out the Appellant's name from the proceedings, the deponent acknowledges that the application was filed but states that it was subsequently abandoned when the Appellant and the 2nd Respondent, through their advocate, agreed to settle the matter by consent and to assume liability arising from the business. In support of that position, he has annexed copies of the submissions filed by the Appellant’s advocates, marked “DJP-2”. 22. The deponent further avers that the Appellant has all along been aware of the consent judgement and has actively participated in post-judgement proceedings, including appearances before the trial court and making payments towards settlement of the decretal sum. He contends that there is no evidence from the Appellant’s former advocates indicating that the consent was entered into without instructions, by mistake or through misrepresentation. He also points out that the said advocates remained on record and filed submissions in the proceedings relating to the application to set aside the consent judgement. 23. The deponent maintains that the trial court properly dismissed the Appellant’s application seeking to set aside the consent judgement and contends that the present appeal does not raise any arguable point of law. He further states that the Appellant was committed to civil jail after failing to honour the agreed payment arrangements and that the warrants of arrest were lawfully issued following his default. According to the deponent, the Appellant’s previous payments towards the decretal sum demonstrate both his awareness of the judgement and his ability to make payment. 24. Lastly, the deponent avers that the appeal and the present application are intended solely to delay satisfaction of the decree and prevent the 1st Respondent from enjoying the fruits of the judgment. He states that the continued non-payment of the decretal sum has occasioned hardship and financial loss to his business and urges the Court to dismiss the application with costs. 25. The 2nd Respondent also opposes the Appellant’s motion and, to that end, filed a replying affidavit sworn on 7th March, 2025 by **Ombiro Jacob Ogachi,** an advocate of the High Court of Kenya who previously acted for both the Appellant and the 2nd Respondent in *Kisumu CMCC No. E292 of 2023.* 26. In his affidavit, the deponent states that he was jointly instructed by the Appellant and the 2nd Respondent to defend the suit filed by the 1st Respondent. He avers that upon perusing the pleadings, he established that the Appellant and the 2nd Respondent had been sued as persons trading as Gesa Interiors. He further states that although the business registration certificate reflected the 2nd Respondent as the sole registered proprietor, both the Appellant and the 2nd Respondent informed him that they were operating the business together and acknowledged liability for the debt claimed by the 1st Respondent. 27. The deponent avers that, having assessed the claim, he advised the Appellant and the 2nd Respondent that it would not be prudent to contest what he considered to be an obvious debt and instead advised them to negotiate a settlement through instalment payments. He states that he nonetheless filed an application dated 30th November, 2023 seeking to strike out the Appellant from the proceedings, but that the strategy behind the application was primarily intended to manage and mitigate costs rather than absolve the Appellant of liability. 28. According to the deponent, shortly after the application was filed, the Appellant sought clarification on whether a successful application would completely remove him from the dispute. The deponent states that he explained to the Appellant that, while the application might technically achieve that result, both the Appellant and the 2nd Respondent would still be required to organize themselves and settle the debt. He further avers that he subsequently convened a meeting with both parties and engaged the 1st Respondent’s advocates regarding a possible settlement by instalments. 29. The deponent states that in or about February, 2024, the Appellant and the 2nd Respondent attended his office and, following discussions concerning the debt and the pending application, both expressly instructed him to execute a consent settling the suit. He maintains that the Appellant actively participated in those discussions and authorized the recording of the consent. It is therefore his position that the consent judgement was entered with the full knowledge and authority of both clients and that, by operation of the consent, the pending application seeking to strike out the Appellant’s name stood compromised. 30. The deponent further avers that all actions undertaken by him as Counsel were within his authority as advocate acting on behalf of both clients. He disputes the Appellant’s allegation that he lacked instructions to record the consent and describes that allegation as dishonest and an afterthought. He contends that the Appellant remained actively involved in the matter thereafter, participated in the implementation of the consent, appeared in court on several occasions and even made payments towards satisfaction of the decretal sum. 31. The deponent also takes issue with the Appellant’s assertion that no response was filed to the application seeking to set aside the consent judgement. He avers that he filed submissions together with authorities in opposition to that application and has annexed copies thereof marked “OJO-1”. 32. Further, the deponent states that the application dated 27th August, 2024, through which the Appellant sought to set aside the consent judgement, was misconceived since the matters complained of had already been compromised by the consent. He contends that the said application did not properly invoke any of the recognised grounds for setting aside a consent judgement, such as fraud, collusion or misrepresentation. 33. Finally, the deponent characterizes the present proceedings as an attempt by the Appellant to evade responsibility for a debt which he had previously acknowledged and agreed to settle. He maintains that the application lacks merit, does not satisfy the requirements for grant of stay and ought to be dismissed with costs. 34. The Appellant further swore a further affidavit on 9th September, 2025 in support of the application. He deposes that he is willing to furnish security for the due performance of the decree and proposes to tender a title deed in respect of land parcel No. Kajiado/Mailua/2500, registered in the name of his aunt. He has annexed a copy of the said title deed marked “JN6”. 35. The Appellant further avers that the proposed security has been valued at Ksh.4,000,000/- as evidenced by a valuation report annexed and marked “JN7” and contends that the same is sufficient security for the due performance of any decree that may ultimately be passed against him. 36. The 1st Respondent filed a supplementary affidavit sworn on 11th September, 2025 in response to the Appellant’s further affidavit. He deposes that upon perusal of the Appellant’s further affidavit, he is advised by his advocates that this being a money decree, the Appellant will not suffer substantial loss if stay of execution is not granted. 37. He further deposes that the security offered by the Appellant, being a title deed for land parcel No. Kajiado/Mailua/2500 registered in the name of a third party who is not a party to the proceedings, is not sufficient security for the due performance of the decree and cannot be relied upon to secure a judgement against the Appellant personally. 38. The deponent further avers that the decree arose from a consent judgement, and that granting stay would unjustly deprive the Respondents of the fruits of their judgment. He reiterates that the Appellant had previously undertaken to settle the decretal sum by instalments of Ksh.100,000/- per month pursuant to the consent. 39. He concludes by stating that the proposed security does not guarantee satisfaction of the decree as it is based on property registered in the name of a third party, and therefore urges that the application be dismissed. 40. The application was canvassed by way of brief oral submissions. The parties largely relied on their respective affidavits, while the 1st Respondent also filed a list of authorities and invited the Court to take the same into consideration, including the following: 41. ***Antoine Ndiaye v African Virtual University [2012] eKLR****,* where the High Court emphasized that in applications for stay of execution pending appeal, the court is not concerned with the merits of the appeal but with whether the applicant will suffer **substantial loss** if stay is not granted. The court further underscored that stay is a discretionary remedy meant to balance the competing rights of both parties – the Appellant’s right of appeal against the Respondent’s right to enjoy the fruits of judgement – and should only be granted where the statutory conditions under *Order 42 Rule 6* of the *Civil Procedure Rules* are satisfied, including demonstration of substantial loss and provision of security where appropriate. 1. ***Kenya Shell Limited v Benjamin Karuga Kibiru & Ruth Wairimu Karuga [1986] KLR 410,*** where the Court of Appeal held that the **key consideration in an application for stay of execution pending appeal is whether the applicant has demonstrated “substantial loss”**. The Court emphasized that substantial loss is the cornerstone of the jurisdiction to grant a stay, and that without evidence of such loss, it would be rare for a court to find that an appeal would be rendered nugatory if stay is not granted. The Court further stated that it is not enough for an Applicant to merely assert that a large sum of money is involved; the Applicant must show specific facts demonstrating why payment would cause real prejudice, such as inability to recover the money if the appeal succeeds. Where no evidence is presented to show that the Respondent would be unable to refund the decretal sum, the Court should not deprive a successful litigant of the fruits of judgement. In essence, the Court held that **unless substantial loss is shown, there is no justification for granting stay**, because the normal position is that a decree-holder is entitled to enjoy the fruits of judgement pending appeal. 1. ***Angela Mulwa t/a Mulwa & Partners Advocates v Martin Lemaiyan Mokoosio [2025] KECA 583 (KLR),*** where the Court of Appeal reiterated that an applicant for stay must satisfy the **two twin principles under *Rule 5(2)(b)* (which principles apply under *Order 46 Rule 6*)**: the appeal must be **arguable (not frivolous)** and it must be shown that the appeal would be **rendered nugatory if stay is not granted**. 2. The Court further restated that **mere hardship or inability to pay a money decree is not sufficient**, as monetary judgments are generally reversible unless exceptional circumstances are demonstrated. 3. ***Devji Meghji & Bros Ltd v National Irrigation Board [2008] eKLR,*** where the Court reiterated that an application for stay of execution is **discretionary** and must be justified by demonstrating **sufficient cause**, particularly that the Applicant will suffer **substantial loss** if stay is not granted. 4. The Court emphasized that the applicant must go beyond general assertions and place **concrete evidence** before the court, including addressing the issue of **security for the due performance of the decree**. It also reaffirmed that the court must balance the competing interests of both parties so as not to unjustly deprive a successful litigant of the fruits of judgement. 5. In addressing the authorities relied upon by the 1st Respondent, the Appellant urges that the appeal arises from the ruling delivered on 28th February, 2025, in which the trial court dismissed his application seeking to set aside a consent judgment. He contends that the primary issue of substantial loss in the present application is that he is at risk of being committed to civil jail in execution of the decree should stay not be granted. 6. The Appellant further submits that he has offered sufficient security for the due performance of the decree in the form of land parcel No. Kajiado/Mailua/2500, which he states is valued at Ksh.4,000,000/- and for which a valuation report and search have been filed on record. He therefore urges the Court to consider the overall interests of justice in determining the application. He argues that the fact that the proposed security is not registered in his name is not fatal to the application, as the same is nonetheless sufficient security for the due performance of the decree. 7. The Appellant maintains that the affidavit sworn by **Mr. Ombiro** does not effectively controvert his position, and thus does not displace the grounds advanced in support of the application. 8. Having considered the application, the affidavits in support and in opposition thereto, the submissions by the parties, the record and the applicable law, the issues that presented for adjudication are as follows: 9. The first issue for determination is whether the Appellant has satisfied the threshold for the grant of an order of stay of execution pending appeal under *Order 42 Rule 6* of the *Civil Procedure Rules.* 10. The second issue is whether the intended appeal raises arguable points with a reasonable probability of success, and whether, in the circumstances of this case, refusal to grant stay of execution would render the appeal nugatory. 11. The third issue is whether the conduct of the parties, including the alleged participation in post-judgement proceedings, settlement negotiations and partial satisfaction of the decree, as well as the adequacy and propriety of the security offered by the Appellant, tilts the discretion of the Court in favour of granting or declining the order of stay of execution. 12. I will proceed to address and determine the three issues for determination seriatim. 13. The first issue for this court to determine is whether the Appellant has satisfied the threshold for the grant of an order of stay of execution pending appeal under *Order 42 Rule 6* of the *Civil Procedure Rules.* 14. The jurisdiction of this Court to grant stay of execution pending appeal is derived from *Order 42 Rule 6(2)* of the *Civil Procedure Rules* which provides that no order for stay shall issue unless the Court is satisfied that: **“substantial loss may result to the applicant unless the order is made; the application has been made without unreasonable delay; and 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 three requirements are cumulative and not alternative. An Applicant must satisfy all of them before the discretion of the Court can be exercised in his favour. 2. The Court has considered the chronology of events. The ruling sought to be challenged was delivered on 28th January, 2025 and the present application was filed on 17th February, 2025. The Court is therefore satisfied that the application was brought without unreasonable delay. 3. The more critical question, however, is whether the Appellant has demonstrated that he stands to suffer substantial loss unless stay is granted. 4. The law is now settled that substantial loss is the cornerstone of the jurisdiction to grant stay. In ***Kenya Shell Limited v Benjamin Karuga Kibiru & Another [1986] eKLR,*** the Court of Appeal stated: ***“Substantial loss in its various forms, is the cornerstone of both jurisdictions for granting stay. That is what has to be prevented. Therefore without this evidence it is difficult to see why the respondents should be kept out of their money.”*** 1. Similarly, in ***James Wangalwa & Another v Agnes Naliaka Cheseto [2012] eKLR*,** the Court observed that: ***“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... 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.”*** 1. The Appellant’s principal argument is that he risks arrest and committal to civil jail pursuant to the warrants issued in execution of the decree. While the Court appreciates that the prospect of arrest is undoubtedly unpleasant, the mere fact that lawful execution has commenced cannot, without more, amount to substantial loss within the meaning of *Order 42 Rule 6.* Execution is the lawful consequence of a valid decree and cannot be transformed into substantial loss merely because the judgement debtor finds it inconvenient or burdensome. 2. Further, this is essentially a money decree arising from a consent judgement. The Appellant has not demonstrated that payment of the decretal amount would occasion any irreparable prejudice beyond the ordinary consequences attendant to satisfaction of a judgement debt. Neither has he shown that, if the appeal were ultimately successful, the 1st Respondent would be incapable of refunding any sums recovered in execution. A party seeking stay of a money decree must place before the Court specific evidence demonstrating real prejudice and not mere assertions. 3. The Court therefore finds that the Appellant has failed to establish substantial loss as contemplated under *Order 42 Rule 6.* 4. The Court must also proceed to consider the requirement of sufficient security for the due performance of the decree in the event that the appeal is not successful. 5. The Appellant initially proposed a title deed allegedly belonging to his parents and later produced a title deed for Land Parcel No. Kajiado/Mailua/2500 which, according to his own affidavit, is registered in the name of his aunt. No affidavit has been sworn by the registered proprietor of the land. No letter of consent, instrument, undertaking or other document has been produced demonstrating that the registered owner has agreed to have the property encumbered for purposes of securing the Appellant’s obligations in these proceedings. 6. The Court is unable to accept such security as sufficient security for the due performance of the decree. Security under *Order 42 Rule 6* must be real, available and capable of being realized without unnecessary litigation. Where the property offered belongs to a third party who is not before the Court and who has not formally submitted herself to the jurisdiction of the Court, serious practical and legal difficulties arise. 7. Indeed, should the appeal ultimately fail, it remains wholly unclear how the Respondents would realize the purported security. The decree is against the Appellant and not against the registered proprietor of the land. In the absence of any legally binding undertaking by the proprietor, the Respondents would be compelled to initiate separate proceedings to establish rights against the property. Such an arrangement defeats the very purpose of security, which is to assure and facilitate the due performance of the decree. 8. The Court therefore finds that the Appellant has also failed to satisfy the requirement relating to security. 9. Accordingly, although the application was filed without delay, the Appellant has failed to establish substantial loss and has failed to furnish adequate security as required by *Order 42 Rule 6.* 10. The second issue for determination is whether the intended appeal raises arguable points with a reasonable probability of success and whether refusal to grant stay would render the appeal nugatory. 11. The Court is alive to the principle that at the interlocutory stage it is not required to determine the appeal with finality. However, it is entitled to examine whether the appeal raises *bona fide* arguable issues and whether refusal of stay would render the appeal nugatory. 12. The intended appeal challenges the refusal by the trial court to set aside a consent judgement. The law relating to consent judgements is well settled. A consent judgement possesses contractual effect and can only be set aside on grounds that would justify setting aside a contract, such as fraud, collusion, illegality, misrepresentation, mistake or any other sufficient reason. 13. In the present matter, the Appellant contends that the consent was entered without his instructions. However, that contention is directly contradicted by the affidavit evidence of his former advocate, **Mr. Ombiro Jacob Ogachi,** who unequivocally depones that the Appellant personally participated in settlement discussions and expressly authorized the recording of the consent judgement. 14. That evidence is further reinforced by the conduct attributed to the Appellant after entry of the consent judgement. The material before the Court shows that he attended court on several occasions, participated in post-judgement proceedings and made payments towards liquidation of the decretal sum. Such conduct is *prima facie* consistent with acquiescence to and implementation of the consent judgement rather than repudiation of it. 15. The Court also notes that no affidavit has been presented from any person disputing the advocate’s account of the instructions received. To the contrary, the advocate who allegedly acted without authority has personally come forward and affirmed that he acted on express instructions. 16. Without prejudging the appeal, the Court is unable to discern any substantial basis upon which the appellate court may interfere with the exercise of discretion by the trial court. 17. More importantly, the Court is not persuaded that the appeal would be rendered nugatory if stay is declined. The decree in question is a money decree. The general rule is that monetary decrees are ordinarily reversible because any sums paid can be refunded should the appeal succeed. The Appellant has not demonstrated that the Respondents are persons of no means or that recovery would be impossible. 18. The Court therefore finds that the Appellant has failed to demonstrate that refusal to grant stay would render the appeal nugatory. 19. The third issue for determination is whether the conduct of the parties and the adequacy of the proposed security tilt the Court’s discretion in favour of granting or declining stay. 20. Stay of execution is an equitable and discretionary remedy. The conduct of the parties is therefore a relevant consideration. 21. The material before the Court demonstrates that after entry of the consent judgement, the Appellant participated in proceedings relating to settlement of the decree. The evidence tendered bythe 1st Respondent indicates that the Appellant made part payment of the decretal sum and agreed to liquidate the balance by monthly instalments. The Appellant is also alleged to have appeared before the trial court on several occasions without challenging the existence of the consent judgment. 22. Whether those matters ultimately amount to waiver, acquiescence or estoppel is a question for the appellate court. Nevertheless, for purposes of the present application, they constitute relevant factors militating against the exercise of discretion in favour of stay. 23. The Court must also balance the competing rights of the parties. As was observed in ***Antoine Ndiaye v African Virtual University [2012] eKLR*,** the Court must strike a balance between the right of appeal and the right of a successful litigant to enjoy the fruits of judgement. 24. In the present case, the decree arises from a consent judgement recorded over a year ago. The Respondents have been kept out of the fruits of that judgement for a considerable period. Granting stay in circumstances where substantial loss has not been demonstrated and where no adequate security has been furnished would occasion undue prejudice to the Respondents. 25. The inadequacy of the proposed security further weighs heavily against the exercise of discretion in favour of the Appellant. As already observed, the property offered belongs to a third party who has neither sworn an affidavit nor expressed any legally enforceable commitment to secure the decree. The Court cannot compel an uninvolved third party to answer for the Appellant’s liabilities. The proposed security is therefore illusory and incapable of providing meaningful protection to the Respondents. 26. Taking into account the conduct of the parties, the nature of the decree, the absence of demonstrated substantial loss, the failure to provide acceptable security and the Respondents’ right to enjoy the fruits of their judgement, the Court finds no basis upon which its discretion ought to be exercised in favour of the Appellant. 27. The Court finds that the Appellant has failed to satisfy the requirements set out under *Order 42 Rule 6* of the *Civil Procedure Rules.* He has failed to demonstrate substantial loss, has failed to establish that the appeal would be rendered nugatory absent stay, and has failed to furnish adequate security for the due performance of the decree. The proposed security consists of property registered in the name of a third party who is not before the Court and whose willingness to be bound has not been demonstrated, rendering the security unsuitable and incapable of guaranteeing satisfaction of the decree. 28. Accordingly, the notice of motion dated 17th February, 2025 lacks merit and is hereby dismissed with costs to the Respondents. 29. The appeal to be mentioned for directions on 17th September, 20262. DELIVERED, DATED & SIGNED this 11th day of June, 2026. **JOE M. OMIDO** **JUDGE** FOR APPELLANT: **Mr. Nyamweya.** FOR 1ST RESPONDENT: **Mr. Onyango.** FOR 2ND RESPONDENT: **Mr. Ombiro.** COURT ASSISTANTS: **Mr. Ngoge & Mr. Juma.**