[2025] KEHC 4330 (KLR)
The court found that the applicant had demonstrated a likelihood of suffering substantial loss if stay was not granted, as the respondent is a minor with no independent means and the next friend failed to provide evidence of her ability to refund the decretal sum. The application was made within a reasonable time,...
Source-derived case information.
- Citation
- [2025] KEHC 4330 (KLR)
- Parties
- Appellant: Steve Sumbi Kamuya; Respondent: EM (Minor suing thro' mother & next friend Eunice Ngina Nzioka)
- Court
- High Court
- Court Station
- High Court at Machakos
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal E022 of 2025
- Procedural Posture
- Civil Appeal / Stay Application Ruling
- Outcome
- application_allowed
- Judges
- EN Maina
- Legal Topics
- Stay of Execution, Substantial Loss, Security for Decretal Sum, Personal Injury Award
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Steve Sumbi Kamuya
Appellant
EM (Minor suing thro' mother & next friend Eunice Ngina Nzioka)
Respondent
Procedural Posture
Civil Appeal / Stay Application Ruling
Legal Issues
- 1 Whether the applicant has demonstrated likelihood of suffering substantial loss if stay is not granted pending appeal.
- 2 Whether the application for stay of execution was made without unreasonable delay.
- 3 Whether the applicant is willing to provide security for the due performance of the decree.
Ratio Decidendi
The court found that the applicant had demonstrated a likelihood of suffering substantial loss if stay was not granted, as the respondent is a minor with no independent means and the next friend failed to provide evidence of her ability to refund the decretal sum. The application was made within a reasonable time, and the applicant expressed willingness to provide security. The court held that the appeal was arguable, particularly on the issue of the Small Claims Court's jurisdiction. Consequently, the court exercised its discretion to grant a conditional stay of execution, requiring the entire decretal sum to be deposited in court or in a joint interest-earning account within thirty days.
Court Disposition
application_allowed
Orders
- Stay of execution of the decree in SCCC No. E530 of 2024 pending appeal is granted, conditional upon the entire decretal sum being deposited in court or in a joint interest-earning account within thirty days.
- The appellant/applicant shall bear the costs of this application.
Full Case Text
Judgment text and source record
25 paragraphs
Kamuya v EM (Minor suing thro' mother & next friend Eunice Ngina Nzioka) (Civil Appeal E022 of 2025) [2025] KEHC 4330 (KLR) (3 April 2025) (Ruling)
Neutral citation: [2025] KEHC 4330 (KLR)
Republic of Kenya
In the High Court at Machakos
Civil Appeal E022 of 2025
EN Maina, J
April 3, 2025
Between
Steve Sumbi Kamuya
Appellant
and
EM (Minor suing thro' mother & next friend Eunice Ngina Nzioka)
Respondent
Ruling
1. This ruling relates to the Appellant/Applicant’s Notice of Motion dated 10th February, 2025. The motion seeks a stay of execution of the decree of the Small Claims Court arising from the Judgment delivered on 9th January, 2024 in SCCC No. E530 of 2024 pending hearing and determination of this appeal.
2. The application was opposed through a replying affidavit sworn by the Respondent on 18th February, 2025 where she deposes that the Appellant/Applicant is unlikely to suffer substantial loss as she is capable of refunding the money should she be paid and the appeal succeeds. She also deposes that the Appellant/Applicant was indolent in bringing the appeal as he only did so after the stay granted by the lower court expired.
3. Learned Counsel for the parties agreed to canvass the application by way of written submissions and the same were duly received.
Disposition 4. Stay of execution is governed by Order 42 Rule 6(1) & (2) of the Civil Procedure Rules. The main considerations are whether the Appellant/Applciant is likely to suffer substantial loss should the application be disallowed and the appeal succeeds; whether the application has been made timeously and whether the Applicant is willing to deposit such security as would be ordered by the court.
5. The Applicant seeks to stay execution of the decree of the Small Claims Court in E530 of 2024 pending appeal. The decree arises from a personal injury claim where a sum of Kshs.175,550/- was awarded to the Respondent.
6. I have carefully considered the application, the grounds on its face, the affidavits of the parties, the rival submissions and the law and I am satisfied that the applicant has prima facie demonstrated that he is likely to suffer substantial loss in that the Respondent is a minor who has no income and hence not in a position to refund the decretal sum were the appeal to succeed. Whereas the next friend deposes that she is a woman of means and hence capable of refunding the decretal sum she has not provided any evidence to demonstrate her means of income and moreover the fact that this is a money decree cannot per se disentitle the Applicant of a stay of execution. The Applicant has its memorandum of appeal raised the issue of the jurisdiction of the Small Claims Court to determine the claim and hence the appeal is arguable. It would therefore be remiss of this court to decline to grant the stay sought.
7. The Appellant/Applicant has also expressed willingness to abide by any conditions as to security as may be imposed by this court.
8. Accordingly, the application is allowed and a stay of execution pending appeal is granted on condition that the entire decretal sum shall within thirty (30) days of this ruling be deposited either in court or an interest earning account in the joint names of Counsel for the parties.
9. The Appellant/Applicant shall bear the costs of this application.
Orders accordingly.
RULING SIGNED, DATED AND DELIVERED VIRTUALLY ON THIS 3RDDAY OF APRIL, 2025. E. N. MAINAJUDGEIn the presence of:Mr. Muthoka for Thoronjo for the RespondentMr. Kuria for the Appellant/ApplicantC/A: Geoffrey