Kanyi v Makau & 4 others (Miscellaneous Civil Application E587 of 2024) [2026] KEHC 10534 (KLR) (Civ) (14 July 2026) (Ruling)

Kanyi v Makau & 4 others (Miscellaneous Civil Application E587 of 2024) [2026] KEHC 10534 (KLR) (Civ) (14 July 2026) (Ruling) Neutral citation: [2026] KEHC 10534 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Law Courts) Civil Miscellaneous Civil Application E587 of 2024 LP Kassan, J July 14, 2026 Between Alice Wambui Kanyi Appellant and Stephen Musembi Makau 1st Respondent Lucy Wangui Wanyoike 2nd Respondent David Njuguna Waweru 3rd Respondent Zen Trading Company 4th Respondent Daniel M Njogu 5th Respondent Ruling Introduction 1.Before this Court is the Notice of Motion dated 20th January, 2025 by which the Appellant/Applicant seeks the review and variation of the conditional stay orders issued by this Court on 19th December, 2024. The application is expressed to be brought under Order 42 Rule 6 of the Civil Procedure Rules, Sections 1A, 1B, 3A and 63(e) of the Civil Procedure Act, Articles 48 and 159 of the Constitution and all other enabling provisions of the law. 2.By its ruling delivered on 19th December, 2024, this Court granted the Applicant leave to file an appeal out of time and further granted an order of stay of execution pending appeal on condition that the Applicant deposit the decretal sum of Kshs.1,507,420 in a joint interest earning account in the names of the advocates for the parties within thirty (30) days. The Court further ordered that, in default of compliance within the stipulated period, the stay of execution would automatically lapse. 3.The Applicant did not comply with the condition requiring the deposit of the decretal sum within the prescribed period. Instead, she has now returned to Court seeking a variation of those orders by proposing to deposit the original title deed relating to Land Parcel No. Ruiru East/Juja East Block 2/26106 as security in place of the monetary deposit ordered by the Court. 4.The application is opposed by the 1st Respondent, who contends that the Applicant has failed to establish any legal basis for varying the Court's earlier orders and that the present application is yet another attempt to delay the conclusion of litigation that has been pending for close to two decades. The Application 5.The Applicant seeks the following substantive orders;a.That this Honourable Court be pleased to review and/or vary the orders issued on 19th December, 2024 by directing that the Applicant deposits in Court the original title documents relating to Land Parcel No. Ruiru East/Juja East Block 2/26106 as security in place of the decretal sum ordered by the Court.b.That the stay of execution granted on 19th December, 2024 be extended pending the hearing and determination of the appeal.c.That the Court grants such further or other orders as may be just.d.That the costs of the application abide the outcome of the appeal. The Applicant's Case 6.The application is supported by the affidavit of Alice Wambui Kanyi sworn on 20th January, 2025 together with a supplementary affidavit sworn on 31st January, 2025. 7.The Applicant depones that she has substantially complied with the ruling delivered on 19th December, 2024 by filing the intended appeal but has been unable to comply with the condition requiring the deposit of the decretal sum owing to financial hardship. 8.It is her case that the inability to raise the decretal amount should not deny her the opportunity to prosecute her appeal. She avers that she is the registered proprietor of Land Parcel No. Ruiru East/Juja East Block 2/26106 and is willing to surrender the original title deed to the Court as security for the due performance of any decree that may ultimately become binding upon her. 9.According to the Applicant, the proposed security is sufficient to safeguard the Respondents' interests while at the same time preserving her constitutional right of appeal. She contends that insisting on a monetary deposit, despite her financial circumstances, would effectively deny her access to justice and render her appeal nugatory. 10.The Applicant further avers that no prejudice will be occasioned to the Respondents because the property offered as security is registered in her name and would remain available to satisfy the decree should the appeal ultimately fail. 11.She therefore urges the Court to exercise its discretion in her favour by substituting the cash deposit with the proposed title deed and extending the stay of execution pending the hearing and determination of the appeal. The 1st Respondent's Response 12.The application is opposed through the Replying Affidavit sworn by the 1st Respondent on 27th January, 2025. 14.The Respondent depones that the Applicant has consistently employed delaying tactics since the institution of the primary suit in 2007 and that the present application forms part of a continuing effort to postpone the satisfaction of a lawful decree while denying the successful litigant the fruits of judgment. 15.The Respondent contends that the Applicant has not demonstrated any sufficient cause to warrant the review or variation of the Court's orders. In particular, he argues that the alleged financial hardship has not been supported by any documentary evidence such as bank statements, financial records or other material capable of demonstrating an inability to comply with the Court's earlier orders. 16.The Respondent further contends that although the Applicant proposes to substitute the decretal sum with a title deed, she has failed to produce an official search confirming the current status of the property or a valuation report demonstrating its market value or forced sale value. Consequently, the Court is unable to determine whether the proposed security is sufficient to secure the decretal amount, which continues to accrue interest. 17.It is further the Respondent's case that a title deed, without evidence of its current value or confirmation that the property is free from encumbrances, cannot adequately secure the due performance of the decree as contemplated under Order 42 Rule 6 of the Civil Procedure Rules. 18.The Respondent therefore urges the Court to dismiss the application with costs and allow the decree-holder to enjoy the fruits of a judgment obtained after litigation that has remained pending since 2007. The Applicant's Submissions 19.The Applicant filed written submissions dated 4th February, 2025 in support of the Notice of Motion. 20.Counsel submitted that the Court possesses wide discretionary powers under Order 42 Rule 6 of the Civil Procedure Rules, Sections 1A, 1B, 3A and 63(e) of the Civil Procedure Act and Articles 48 and 159 of the Constitution to vary the conditions attached to an order of stay where the circumstances of the case so warrant. 21.Counsel argued that the Applicant has not refused to comply with the orders of this Court but has merely sought leave to furnish an alternative form of security owing to her inability to raise the decretal sum. It was submitted that the Applicant has demonstrated good faith by expressing her willingness to deposit the original title deed relating to Land Parcel No. Ruiru East/Juja East Block 2/26106 as security pending the determination of the appeal. 22.Counsel further submitted that the Court should take into account the Applicant's financial circumstances and avoid imposing conditions that would effectively deny her access to the appellate process. Reliance was placed on the decision of the Supreme Court in Westmont Holdings SDN BHD v Central Bank of Kenya & 2 Others [2023] KESC 11 (KLR), where the Court emphasized that, in considering applications involving security, courts ought to remain guided by the constitutional guarantee of access to justice and ensure that financial hardship does not become an absolute bar to litigation. 23.It was further submitted that security under Order 42 Rule 6 is not confined to the deposit of money and that courts have accepted various forms of security, including immovable property, provided that the interests of the successful litigant are adequately protected. 24.In support of that proposition, Counsel relied on Elijah Njagi & Another v Yvonne Ndunge [2021] eKLR, which cited the Court of Appeal decision in Nduhiu Gitahi v Warugongo [1988] KLR 621 for the proposition that security may assume different forms provided it sufficiently protects the successful party. 25.Counsel also relied on Alice Gathiga Karuku v Maisha Flour Mills Ltd [2013] eKLR, where the High Court observed that the nature of security to be furnished is a matter within the discretion of the Court and may include land, a bank guarantee or any other suitable form of security. 26.Counsel therefore urged the Court to exercise its discretion in favour of the Applicant by varying the orders issued on 19th December, 2024 and permitting the deposit of the title deed in place of the monetary security previously ordered. The 1st Respondent's Submissions 27.The 1st Respondent filed written submissions dated 11th February, 2025 opposing the application. 28.Counsel submitted that the application discloses no lawful basis for the review or variation of the conditional stay orders issued on 19th December, 2024. It was argued that the Applicant has merely alleged financial hardship without placing before the Court any documentary evidence demonstrating an inability to comply with the orders previously issued. 29.Counsel further submitted that the Applicant has consistently engaged in conduct intended to delay the conclusion of litigation that has remained pending since 2007, thereby denying the Respondent the enjoyment of the fruits of a valid judgment. 30.It was submitted that Order 42 Rule 6(2)(b) of the Civil Procedure Rules requires an applicant seeking stay of execution to furnish security for the due performance of the decree and that such security must be adequate to guarantee satisfaction of the decree should the appeal ultimately fail. 31.Counsel argued that although the Court retains discretion to determine the nature of the security to be furnished, that discretion must be exercised judicially and on the basis of cogent evidence demonstrating that the proposed security is sufficient. 32.Reliance was placed on Simba Coach Limited v Kiriyu Merchants Auctioneers [2019] eKLR, where the Court declined to vary conditions of stay after finding that the applicant had merely asserted an inability to raise the decretal sum without furnishing satisfactory evidence in support of that assertion. 33.The Respondent further relied on John Kinuthia Njoroge v Marjorie Murigu Saidi [2021] eKLR, which adopted the reasoning in Arun C. Sharma v Ashana Raikundalia t/a Raikundalia & Co. Advocates & 2 Others [2014] eKLR, that security under Order 42 Rule 6 is intended to guarantee the due performance of such decree as may ultimately become binding upon the applicant and must therefore be adequate for that purpose. 34.Counsel submitted that the Applicant has failed to discharge that burden. In particular, no valuation report has been produced to establish the current market value or forced sale value of the property proposed as security. Similarly, no official search has been exhibited to demonstrate that the property is free from encumbrances or otherwise capable of securing the decretal amount. 35.Counsel argued that the decretal sum continues to accrue interest and that a bare title deed, without evidence of the property's value or legal status, does not provide the Respondent with adequate protection. Consequently, the Court cannot properly assess whether the proposed security is commensurate with the decree. 36.Counsel therefore urged the Court to dismiss the application with costs and permit the Respondent to proceed with execution in accordance with the law. Issues for Determination 377.I have carefully considered the Notice of Motion, the affidavits sworn in support thereof and in opposition thereto, the rival submissions by learned counsel and the authorities relied upon. 38.In my respectful view, the following issues arise for determination;a.Whether this Court has jurisdiction to review or vary the conditional stay orders issued on 19th December, 2024.b.Whether the Applicant has established sufficient cause to warrant variation of those orders.c.Whether the Applicant has demonstrated that the proposed title deed constitutes adequate security for the due performance of the decree within the meaning of Order 42 Rule 6(2)(b) of the Civil Procedure Rules.d.Whether the Applicant is entitled to the orders sought. 39.I shall now proceed to consider each of the foregoing issues in turn. Analysis and Determination Whether this Court has jurisdiction to vary the conditional stay orders 40.I have carefully considered the Notice of Motion dated 20th January, 2025, the affidavits filed by the parties, the rival submissions of learned counsel and the authorities cited. The application invites this Court to exercise its discretion by varying the conditions attached to the stay of execution granted on 19th December, 2024. The Applicant does not seek to be relieved of the obligation to furnish security altogether but rather seeks to substitute the monetary security ordered by the Court with the title deed relating to Land Parcel No. Ruiru East/Juja East Block 2/26106. 41.Although the application is expressed as one seeking review and variation of this Court's earlier orders, the substance of the application is a request for the Court to revisit the conditions attached to the stay of execution granted under Order 42 Rule 6 of the Civil Procedure Rules. 42.It is settled that a court retains jurisdiction to vary or modify conditions attached to an order of stay where sufficient cause has been demonstrated. Such jurisdiction flows from Order 42 Rule 6 of the Civil Procedure Rules as read together with Sections 1A, 1B and 3A of the Civil Procedure Act. However, that discretion is not exercised as a matter of course. It must be exercised judicially, upon sufficient material being placed before the Court and in a manner that safeguards the rights of all the parties. 43.I am therefore satisfied that this Court has jurisdiction to entertain the present application. The issue, however, is whether the Applicant has placed before the Court sufficient material to justify the exercise of that discretion in her favour. Whether the Applicant has demonstrated sufficient cause for variation of the orders 44.The Applicant's principal ground is that she has been unable to raise the decretal sum of Kshs.1,507,420 due to financial hardship and therefore wishes to deposit a title deed as alternative security. 45.The Respondent has challenged that explanation, submitting that no documentary evidence whatsoever has been produced to demonstrate the alleged financial hardship. Indeed, apart from the bare deposition contained in the supporting affidavit, the Applicant has not exhibited bank statements, financial records or any other material capable of demonstrating that compliance with the Court's earlier orders was impossible. 46.While this Court appreciates that litigants may experience financial difficulties, an allegation of impecuniosity cannot, without more, constitute sufficient reason for varying judicial orders. A party seeking the exercise of the Court's discretion bears the burden of placing before the Court credible evidence upon which that discretion may properly be exercised. 47.I have considered the Supreme Court's decision in Westmont Holdings SDN BHD v Central Bank of Kenya & 2 Others [2023] KESC 11 (KLR), relied upon by the Applicant. That decision underscores the constitutional importance of access to justice and cautions courts against imposing conditions that unnecessarily impede deserving litigants from pursuing their claims. However, that principle does not relieve an applicant of the obligation to satisfy the legal requirements governing the exercise of judicial discretion. The right of appeal, though important, must be balanced against the equally legitimate right of a successful litigant to enjoy the fruits of a lawful judgment. 48.In the present case, I am not persuaded that the Applicant has demonstrated sufficient cause to warrant interference with the conditions imposed by this Court on 19th December, 2024. Whether the proposed title deed constitutes adequate security 49.The central issue is whether the title deed offered by the Applicant constitutes adequate security within the meaning of Order 42 Rule 6(2)(b) of the Civil Procedure Rules. 50.The law on security pending appeal is well settled. In Arun C. Sharma v Ashana Raikundalia t/a Raikundalia & Co. Advocates & 2 Others [2014] eKLR, as adopted in John Kinuthia Njoroge v Marjorie Murigu Saidi [2021] eKLR, the Court held that security is intended to guarantee the due performance of such decree as may ultimately become binding upon the applicant. The purpose of security is therefore to protect the successful litigant and not merely to demonstrate an applicant's willingness to comply with the orders of the Court. 51.I also agree with the Applicant that the law does not limit security to a monetary deposit. Courts have accepted various forms of security, including immovable property, bank guarantees and insurance bonds, provided that such security adequately protects the decree-holder. 52.However, the mere fact that land is capable of constituting security does not mean that every title deed tendered before the Court automatically satisfies the requirements of Order 42 Rule 6. The Court must be satisfied, on the basis of evidence, that the proposed security is sufficient, available and capable of securing the due performance of the decree. 53.In the present application, the Applicant merely annexed a copy of the title deed. No official search has been produced to confirm the current proprietorship of the property or to establish whether the title is free from encumbrances. Equally, no valuation report has been annexed to demonstrate either the market value or the forced sale value of the property. 54.These omissions are significant. Without an official search, the Court cannot ascertain the current legal status of the property. Without a valuation report, the Court cannot determine whether the property is capable of securing the decretal amount. 55.Judicial discretion cannot be exercised on speculation. It would be unsafe for the Court to assume that because the Applicant holds a title deed, the property is necessarily of sufficient value or is available to satisfy the decree should the appeal ultimately fail. 56.Moreover, the decretal sum does not remain static. It continues to attract interest until payment in full. Money deposited in a joint interest earning account appreciates through the accrual of interest, thereby preserving the value of the security for both parties. A title deed, on the other hand, does not secure the accruing interest on the decretal sum. In the absence of evidence demonstrating that the value of the property is sufficient to cover both the principal decretal amount and the interest that continues to accrue, the Court cannot conclude that the Respondent's interests would be adequately protected. 57.Consequently, I find that the Applicant has failed to demonstrate that the proposed title deed constitutes adequate security within the meaning of Order 42 Rule 6(2)(b) of the Civil Procedure Rules. Balancing the competing rights of the parties 58.In determining applications of this nature, the Court is required to strike a balance between the Applicant's right to pursue an appeal and the Respondent's right to enjoy the fruits of a judgment lawfully obtained. Neither right should be exercised in a manner that unjustly prejudices the other. 59.In Butt v Rent Restriction Tribunal [1982] KLR 417, the Court of Appeal observed that the discretion to grant or refuse stay of execution 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 deprived of the fruits of his judgment without just cause. 60.The present dispute has its origins in the year 2007. Nearly two decades have elapsed since the commencement of the litigation. The Court cannot ignore the importance of the principle of finality in litigation. Public policy demands that litigation must come to an end and that successful litigants should not be kept away indefinitely from enjoying the fruits of judgments obtained after due process. 611.The Applicant has already been afforded the benefit of a conditional stay of execution. The conditions imposed by this Court were neither unreasonable nor oppressive. They were intended to strike a fair balance between preserving the appeal and safeguarding the Respondent's decree. Having failed to comply with those conditions, the Applicant now seeks a further indulgence without placing before the Court the material necessary to justify the exercise of its discretion. 62.To grant the orders sought in the absence of evidence demonstrating the adequacy of the proposed security would occasion prejudice to the Respondent and undermine the purpose for which security is required under Order 42 Rule 6 of the Civil Procedure Rules. 63.In the circumstances, I find that the Applicant has failed to establish any proper basis upon which this Court should vary the conditional stay orders issued on 19th December, 2024. Determination 64.Having carefully considered the Notice of Motion dated 20th January, 2025, the affidavits on record, the rival submissions by counsel and the applicable law, I am not persuaded that the Applicant has established sufficient cause to warrant the exercise of this Court's discretion in her favour. 65.Although this Court has jurisdiction to vary the conditions attached to a stay of execution where sufficient cause is shown, such discretion must be exercised judiciously and on the basis of cogent evidence. The Applicant has failed to place before the Court the material necessary to justify a departure from the orders made on 19th December, 2024. 66.While the Applicant has proposed to substitute the monetary security with a title deed, she has failed to annex a current official search confirming the legal status of the property or a valuation report establishing its market value and forced sale value. In the absence of such evidence, the Court cannot determine whether the proposed security is sufficient to guarantee the due performance of the decree as required under Order 42 Rule 6(2)(b) of the Civil Procedure Rules. 67.The Court further notes that the decretal sum continues to attract interest until payment in full. Unlike money deposited in a joint interest earning account, a title deed does not preserve or secure the accruing interest on the decretal sum. Consequently, without evidence demonstrating that the value of the property is sufficient to cover both the principal decretal amount and the interest that continues to accrue, the Court cannot conclude that the Respondent's interests would be adequately protected. 68.Equally significant is the age of this litigation. The record shows that the dispute giving rise to these proceedings was instituted in 2007. Nearly two decades have elapsed without the successful litigant enjoying the fruits of the judgment. It is a fundamental principle of our legal system that litigation must come to an end. While courts are enjoined to safeguard the constitutional right of appeal, that right must be balanced against the equally important right of a successful litigant to enjoy the fruits of a lawfully obtained judgment within a reasonable time. 69.The conditional stay granted on 19th December, 2024 afforded the Applicant an opportunity to preserve the subject matter of the appeal upon compliance with conditions that this Court considered fair and proportionate. Those conditions were neither punitive nor oppressive. Having failed to comply with them, the Applicant cannot invite the Court to exercise its discretion afresh without placing before it sufficient evidence to justify such indulgence. 70.In the final analysis, I find that the Applicant has failed to satisfy the threshold for the review or variation of the conditional stay orders issued on 19th December, 2024. The Notice of Motion dated 20th January, 2025 is therefore devoid of merit. Orders 71.Accordingly, the Notice of Motion dated 20th January, 2025 is hereby dismissed with costs to the 1st Respondent. 72.For the avoidance of doubt, the conditional stay of execution granted by this Court on 19th December, 2024 lapsed upon the Applicant's failure to comply with the conditions attached thereto. The Respondents shall therefore be at liberty to execute the decree in accordance with the law. It is so ordered. DATED, SIGNED AND DELIVERED AT NAIROBI THIS 14TH DAY OF, JULY 2026.L. P. KASSANJUDGE