https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6639

**REPUBLIC OF KENYA** **IN THE HIGH OF KENYA AT MERU** **MISC. CIVIL APPLICATION NO. E177 OF 2025** **KENYA WILDLIFE SERVICE……………INTENDED APPELLANT/APPLICANT** **VERSUS** **BARNABAS NTHURIMA M’MWATHI………..………………...RESPONDENT** **RULING** 1. For determination is the Notice of Motion dated 21/11/2025 under**Sections 1A, 1B, 3A and 79G of the Civil Procedure Act, Order 42 Rule 6, Order 50 Rule 6 and Order 51 Rule 1 of the Civil Procedure Rules**, seeking that: 1. **Spent** 2. **Spent** 3. **This Honourable Court grant a Stay of Execution of the Judgment and Decree of Honourable Habrovinah Nyamweya (Adjudicator/Resident Magistrate) delivered on the 14th August, 2025 in MERU SCCC NO. E340 OF 2025: BARNABAS NTHURIMA M’MWATHI vs KENYA WILDLIFE SERVICE pending hearing and determination of the intended appeal.** 4. **This Honourable Court be pleased to grant the Applicant leave to appeal out of time against the whole judgment of Honourable Habrovinah Nyamweya (Adjudicator/Resident Magistrate) delivered on the 14th August, 2025 in MERU SCCC NO. E340 OF 2025: BARNABAS NTHURIMA M’MWATHI vs KENYA WILDLIFE SERVICE.** 5. **Costs of this Application be in the cause.** 2. The grounds upon which the application is premised are set out in the body of it and supporting affidavit of Benta Musima, the Applicant’s Acting Corporation Secretary sworn on even date. Aggrieved by the trial court’s judgment, the Applicant is desirous of appealing against it, and unless the orders sought are granted, execution shall proceed, thus occasioning the Applicant substantial and irreparable loss. The delay in filing the appeal, which is arguable, within time was occasioned by lack of filing fees. 3. The Respondent swore a replying affidavit on 17/3/2026 in opposition to the application. He averred that the Applicant had neither demonstrated what substantial loss it will suffer nor furnished security for the performance of the decree to warrant grant of the orders sought. According to him, no reasonable explanation had been proffered why the appeal was not filed within time, and he prayed for the dismissal of the application with costs. 1. Gideon K. Mutai, the Applicant’s Advocate swore a supplementary affidavit on 17/3/2026 in support of the application. 2. The application was canvassed by way of written submissions, which were duly filed by Counsel. **Determination** 1. Before delving into the merits of the application, a preliminary issue has been raised whether this matter is sub judice and/or res judicata owing to the determination of Misc. Civil Application No. E128/2025. It is imperative to note that Misc. E128/2025 is a distinct case between the Applicant herein and Terethina Mwengwa, and therefore, the issues of res judicata and/or sub judice does not arise. 2. On stay, **Order 42 Rule 6 (2) of the Civil Procedure Rules** provides as follows; **“No order for stay of execution shall be made under subrule (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.”** 3. The application was filed on 25/11/2025, while the impugning judgment was delivered on 14/8/2025. That delay is not so inordinate as to be deemed unreasonable. 4. The cornerstone consideration in every application for stay is substantial loss, and the burden of proof lies on the Applicant, as was held by the Court of Appeal in **Kenya Shell Limited v Benjamin Karuga Kibiru & another [1986] KECA 94 (KLR)**that; **“It is usually a good rule to see if order XLI rule 4 of the Civil Procedure Rules can be substantiated. If there is no evidence of substantial loss to the Applicant, it would be a** **rare case when an appeal would be rendered nugatory by some other event. Substantial loss in its various forms, is the corner stone of both jurisdictions for granting a 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. A money decree is not, by itself, a sufficient ground for stay of execution. The Applicant must demonstrate that:- 1. **Substantial loss may result if stay is not granted, such as the inability to recover the money if the appeal succeeds.** 2. **The Respondent may be unable to refund the decretal sum; commonly referred to as the Respondent being a “man of straw.”** 3. **Security for the due performance of the decree is provided**. 2. The Applicant contends that it stands to suffer substantial loss if the decretal sum is paid to the Respondent, whose ability to refund, in the event the appeal succeeds, is unknown. On his part, the Respondent insists on the dismissal of the application, without rebutting the assertion of his inability to refund the decretal sum, if the appeal is successful. That apprehension constitutes substantial loss. 1. I thus find that the Applicant has established that it will suffer substantial loss if the sought stay of execution is denied. 2. On leave to appeal out of time, I find that while the delay of less than 3 months cannot be termed as inordinate, the reason thereof is implausible and inexcusable. 3. Nonetheless, in the interest of justice and the overriding objectives under **Sections 1 and 3 of the Civil Procedure Act**, I will grant the leave sought. 4. I have consciously refrained from addressing the issue of jurisdiction, at this interlocutory stage, so as to avoid prejudicing the Applicant and ultimately rendering the intended appeal nugatory. 5. Accordingly, the application dated 21/11/2025 is merited and it is allowed in the following terms: 1. *Leave to appeal out of time is hereby granted.* 2. *Stay of execution of the judgment and decree in Meru SCCC No. E340/2025 is hereby granted, pending the hearing and determination of the appeal herein, on condition that;* 1. **The Applicant shall deposit the entire decretal sum of Ksh. 758,180 in a joint Advocates’ interest earning account within 40 days from the date hereof.** 2. **The Applicant to compile, file and serve the Record of Appeal within 45 days from the date hereof.** 3. **In default of any of the aforementioned conditions, the stay hereinabove granted shall lapse, and the Respondent shall be at liberty to execute.** **DATED AND DELIVERED AT MERU THIS 19TH DAY OF MAY, 2026.** **S.M. GITHINJI –JUDGE** **19/5/2026** **In the presence of:-** Mr. Mutai for the Applicant Ms. Aketch for the Respondent (absent)