Khaemba v Mboya (Civil Appeal E252 of 2025) [2026] KEHC 8521 (KLR) (12 June 2026) (Ruling)

Khaemba v Mboya (Civil Appeal E252 of 2025) [2026] KEHC 8521 (KLR) (12 June 2026) (Ruling) Neutral citation: [2026] KEHC 8521 (KLR) Republic of Kenya In the High Court at Nakuru Civil Appeal E252 of 2025 JM Nang'ea, J June 12, 2026 Between Joan Ndubi Khaemba Appellant and Okoth Nashon Mboya Respondent Ruling 1.For determination are two Applications dated 16/10/2025 and 5/11/2025 the Appellant has filed. By Notice of Motion dated 16/10/2025 the Appellant seeks these reliefs:1.Spent2.Spent3.That there be stay of execution of Decree arising from Judgment delivered on 18th September, 2025 in Nakuru SCCCOMM E113 of 2025 pending hearing and determination of this Appeal.4.That the court be at liberty to impose such conditions for grant of stay of execution as it deems just.5.That the costs of this Application be in the Cause. Supporting Affidavit by the Applicant 2.The Applicant avers that the lower court entered judgement for the Respondent in the sum of Kshs. 525,000/= and Kshs. 2,500/= being bank charges. He was dissatisfied with the decision and brought this Appeal. 3.The Appeal is said to be arguable and merits an order stay pursuant to Order 42 Rule 6( 2) of the Civil Procedure Rules 2010. 4.The Respondent’s means of making refund of the decretal sum if paid out are alleged to be unknown. On her part, the Applicant laments that she has no means to honour the decree, being saddled with many expenses including those related to education of her children. 5.The Applicant further argues that the Application was brought timeously and that she is ready to abide by reasonable conditions this court may impose in allowing stay of execution pending appeal. Notice of Motion dated 5/11/2025 6.The Applicant prays for these orders in the Application;1.Spent.2.Spent.3.That upon interpartes hearing, this Honourable Court be pleased to issue an order or stay of execution of the Judgement, Decree and Notice to Show Cause issued by the lower court pending hearing and determination of this Appeal.4.That the Respondent, his agents, or servants be restrained from executing arresting, detaining, in any way committing the Applicant to civil jail in execution of the said decree pending appeal. (Sic)5.That the costs of the Application be in the cause. Supporting Affidavit of the Applicant 7.The Applicant briefly states that she has been served with a Notice to Show Cause dated 31/10/2025 requiring her to show cause why she should not be committed to civil jail for failing to liquidate the decretal sum. Loss of her liberty is therefore imminent if stay not granted. Replying Affidavit to Both Applications Dated 16/10/2025 & 5/11/2025 8.The Respondent contends that Appeal does not raise triable issues warranting stay, and the balance of convenience therefore tilts in his favour. 9.It is contended that the Applicant has not demonstrated irreparable or substantial loss she would otherwise suffer if the valid decree is executed. 10.Regarding the legal requirement of deposit of the decretal sum, the Respondent faults the Applicant for failing to express willingness and readiness to deposit the necessary security for costs were the court to grant stay pending appeal. 11.Both Applications are therefore claimed to be intended to merely delay the Respondent’s enjoyment of the fruits of litigation. 12.Counsel for the parties filed Written Submissions which I have perused and considered against the rival affidavit evidence and the record. 13.Order 42 rule 6 (1) (2) of the Civil Procedure Rules 2010 governs disposal of an application such as before me for stay of execution pending appeal. The legal provisions stipulate that such order may not be granted;-“a.unless 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; andb.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.” 14.The Appellant asserts that she has brought the Applications without unreasonable delay. It is should, however, be noted that even delay of one day, if unexplained, is bad enough. She has not explained the long delay of about one month to bring the first Application . The second Application was also brought late, around 5 days after issuance of the notice to show cause, with no explanation for the delay. 15.In the circumstances, the delay is found to be unreasonable and inexcusable, no explanation having been given. This condition for grant of stay of execution pending Appeal is not therefore satisfied. 16.Provision of security for costs is a crucial condition precedent to grant of an order of stay of execution pending hearing and determination of an Appeal.This is a mandatory legal requirement that has to be complied with. The court has power to determine the appropriate security for costs but the Applicant must first express willingness and readiness to offer security. 17.In John Odungo vs Joyce Irungu Muhatia [2014] eKLR the court observed that an Applicant does not have to actually make a deposit of security to earn an order of stay of execution. It suffices if he shows “preparedness as well as readiness to provide security should one be called upon to do so”. 18.The Appellant has not also quite satisfied the requirement for offer security for costs, having failed to clearly express willingness and readiness to comply in his affidavit in support of the Motion. She only generally conveys her willingness to abide by any conditions the court may impose. 19.Determination of the application would turn on the question of substantial loss, if any, the Appellant might suffer if stay of execution is not ordered. The case of Nyatera vs Nyakundi (Civil Appeal E033 of 2022) [2023]KEHC 3086 KLR) (16 March 2023) (Ruling) is relevant for the proposition that the Applicant ought to show the manner in which his appeal would be rendered nugatory if stay of execution is not ordered.. The court opined in the case that it is not enough to say that because the Respondent intends to proceed with execution, he should be stopped because of the appeal. The court is therefore required to tread a delicate balance of the parties’ interests. As it is now trite, this is the cornerstone of the court’s discretion to grant or refuse stay of execution pending appeal. The onus is on the Appellant to show on a balance of probability that the Respondent would not be able to refund the decretal sum if paid out and the appeal eventually succeeds. 20.In RWW vs EKW [2019] eKLR and Re Global Tours & Travel Ltd HCWC No. 43 of 2000 in Milimani HCMCA No. 1561 of 2007, Century Oil Trading Company Ltd vs Kenya Shell Ltd, this court again explained that;-“Where execution of a money decree is sought to be stayed, in considering whether the applicant will suffer substantial loss, the financial position of the applicant and that of the respondent becomes an issue. The court cannot shut its eyes when, it appears the possibility is doubtful of the respondent refunding the decretal sum in the event that the applicant is successful in his appeal. The court has to balance the interest of the applicant who is seeking to preserve the status quo pending the hearing of the appeal so that his appeal is not rendered nugatory, and the interest of the respondent who is seeking to enjoy the fruits of his judgement.” 21.In Shell Ltd vs Kibiru & Another (1986) KLR 410 it was famously postulated that:-“substantial loss in its various forms is the cornerstone of the court’s jurisdiction to grant stay pending appeal. 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.’’ 22.Regarding the burden of proof, the Court of Appeal held in National Industry Credit Limited vs Aquinas Francis Wasike & Another [2006] eKLR that;-“once an applicant expresses a reasonable fact that a respondent would be unable to pay back the decretal sum, the evidential burden must then shift to the respondent to show whatever resources he has since that is a matter which is peculiarly within his knowledge.” 23.The legal position elucidated in the cited Case Law has been reiterated in several recent cases including Matata & Another vs Rono & Another (Civil Appeal No. E034 of 2024) [2024] KEHC 2799 (KLR) (19 March 2024) (Ruling) and Muinde Mulatya & Another ( 2021) eKLR and Kenya Commercial Bank Limited vs Sun City Properties Limited 7 & 5 Others ( 2012) eKLR. 24.Based on the affidavit evidence of the parties neither of them has given their detailed financial position. The Appellant who shoulders the burden of proof has in particular not made out a prima facie case of the Respondent’s inability to pay back any decretal sum to warrant the latter to debunk the claim. Determination 25.The decree in issue herein is a money decree. There is evidence that a Notice to Show Cause dated 31/10/2025 has been issued against the Applicant, prompting the Application dated 5/11/2025. She thus risks deprivation of liberty if jailed. This is loss that may not be compensated by damages and, therefore, substantial loss is very likely. 26.In the particular circumstances of this case, however, the Appellant, has not substantially complied with the provisions of Order 42 Rule (2) of the Civil Procedure Rules as shown. She has not therefore earned exercise the court’s discretion in her favour and will not get unconditional stay. 27.Considering that her liberty is at stake, I allow the Applications as follows;a.Stay of execution pending hearing and determination of this Appeal including by committal of the Applicant to civil jail, is granted on condition that she deposits half of the decretal sum into court within 21 days from the date hereof.b.In default, the Respondent shall be at liberty to execute the decree in any lawful manner desired.c.The costs of these Applications shall abide the Appeal. 28.Ruling accordingly. J. M. NANG’EA, JUDGE.RULING DATED, SIGNED AND DELIVERED VIRTUALLY AT NAKURU THIS 12TH DAY OF JUNE, 2026.In the presence of:Mr. Mwangi Advocate for Mr. Wambugu Advocate for the Appellant/Applicant.Mr. Wanjir Advocate for the Respondent.Court Assistant (Jeniffer).J. M. NANG’EA, JUDGE