https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7784

Kim & another v Mugo (Suing as the Administrator and Legal Representative of the Late Joseph Mugo Murage - Deceased) (Miscellaneous Application E126 of 2025) [2026] KEHC 7784 (KLR) (5 June 2026) (Ruling) Neutral citation: [2026] KEHC 7784 (KLR) Republic of Kenya In the High Court at Machakos Miscellaneous Application E126 of 2025 BM Musyoki, J June 5, 2026 Between Abdul Kim 1st Applicant Masa Transporters Limited 2nd Applicant and Ann Wanjiku Mugo (Suing as the Administrator and Legal Representative of the Late Joseph Mugo Murage - Deceased) Respondent Ruling 1.By a notice of motion dated 14th April 2025 and supported by affidavit of Esther Ndung’u sworn on the same date, the applicants have prayed this court to grant an order for stay of execution of the decree in Mavoko Chief Magistrate’s Court civil case number E184 of 2024 delivered on 11-02-2025 pending hearing and determination of their intended appeal. The applicants have also prayed for leave of this court to file appeal against the said judgement and decree out of time. 2.Esther Ndung’u depones that she is working as a legal officer with Fidelity Insurance company who was the applicants’ insurer. She states further that the applicants’ insurer instructed the firm of G & G Advocates LLP to appeal the trial court’s judgement when the statutory period for appealing had lapsed. She pleads that the delay was occasioned by circumstances beyond the applicants’ control and that the applicants stand to suffer irreparable loss and prejudice if they are denied the opportunity to ventilate their grievances through an appeal which she claims to be arguable. 3.The deponent has added that the appeal will be rendered nugatory if execution of the decree proceeds. The applicants have exhibited a draft memorandum of appeal, email dated 10-04-2025 from the insurance company to the advocates advising them to file the application and a letter from the respondent’s advocates dated 8-04-2025 calling for the decretal sum. 4.The respondent opposed the application through grounds of opposition dated 24th September 2025 in which she avers that the application is fatally defective, misconceived, vexatious, frivolous and an abuse of the court process. She avers further that the application does not meet the threshold of Order 42 Rule 6 of the Civil Procedure Rules. Unfortunately, the details of the case before the trial court have not been supplied and this court can only make assumption that the cause of action was a fatal road accident involving an undisclosed motor vehicle in which Joseph Mugo Murage died. I gather this from pieces of the averments and parties’ submissions. 5.I have read and considered the application, the supporting affidavit and the grounds of opposition. I have also read submissions of the applicants dated 10th November 2025 and those of the respondent dated 24th September 2025. The applicant insists in their submissions that the delay in filing an appeal is excusable and has been explained and that they stand to suffer substantial loss if the application is not allowed since the respondent has not shown that she is able to refund the decretal sum if the appeal succeeds. 6.On her part, the respondent has repeated what she averred in her grounds of opposition submitted and adds that after delivery of the judgement, the applicant applied and were granted an order of for stay of execution for thirty days to enable them pay the decretal sum but went silent and that the application is meant to deny her the benefits of her judgment. She adds that the deceased had a wife and three children who need the money to cater for their basic needs. She prays that the applicant be ordered to pay half of the decretal sum to her and the other half be deposited in court within seven days. 7.I find the application casually drawn and prosecuted especially when it comes to explanation of the delay in filing the appeal. First, the court was denied the benefit of knowing the contents of the trial court’s judgment as no copy was exhibited. Secondly, the applicants have not explained when the insurance company was informed of the judgment and why it took time for the insurance company to give instructions to appeal. This is so especially noting that the deponent of the supporting affidavit is the legal officer of the insurance company who is expected to have the details. I will however not dwell on this because the respondent has not expressed opposition to the prayer for leave to appeal out of time. The only prayer she makes in her submissions is that she be paid half of the decretal sum and the balance be deposited in court. 8.For reasons that the application was filed timeously and the fact that the respondent is seemingly not opposed to prayer for leave, I will despite the failure to satisfactorily explain the short delay allow the applicants to file their intended appeal out of time. 9.I now turn to the prayer for stay of execution pending hearing and determination of the intended appeal. The conditions which an applicant must satisfy for the court to grant stay of execution pending appeal have been settled. They are; the applicant must satisfy the court that they will suffer substantial loss if the execution proceeds, that the application was filed without undue delay and that they must provide security for due performance of the decree. This position was restated in JMM v PM [2018] KEHC 2171 (KLR) thus;The principles upon which the court may stay the execution of orders appealed from are settled. The Applicant must approach the court timeously and demonstrate the likelihood that he will suffer substantial loss if the order is denied. He must also furnish security for the performance of the decree in the event the appeal does not succeed. These are the requirements stipulated in Order 42 r 6(2) of the Civil Procedure Rules.’ 10.Of the three conditions, only the one for substantial loss is calling for evaluation in this matter. Substantial loss is the situation where execution of the decree would leave the applicant in a disadvantageous position that they may not recover from after the appeal is determined in their favour. This may take many faces. It may be a situation which leaves the applicant in a position where their means of survival or livelihood is compromised such that the success of the appeal would be of no help to them. In money decree, it manifest where the applicant may not be in a position to recover the decretal sum if the same is released to the respondent once they succeed in the appeal. 11.In considering the application, the court must balance the interests of both parties to ensure that none of them is prejudiced by whatever would be the outcome of the appeal. In Ena Investment Limited v Benard Ochau Mose & 2 others [2022] KEHC 760 (KLR), it was held that;The purpose of stay of execution is to preserve the subject matter in dispute while balancing the interests of the parties and considering the circumstances of the case.’ 12.In the matter before me, the applicant has argued that the respondent has not shown that she will be capable of refunding the decretal sum in the event the intended appeal succeeds. The respondent has not answered to this argument. It is not expected that an applicant would know the financial status or liquidity of the opposing party unless they were engaged in commercial, business or close relationship and that is the reason a party who is confronted with allegation of their lack of liquidity have a burden to prove that they have the means. The respondent in this matter has done the opposite by stating in her submissions that she and her three children need the decretal amount for their upkeep which is suggestive that they do not have any other means of survival. In that case, it is my opinion that it is safe to assume that she does not have means to refund the decretal sum once it is paid to her and the intended appeal succeeds. 13.Having considered all the factors and the circumstances of the case as discussed above, I am inclined to granting the application on specific conditions. I proceed to give the following orders;1.The applicants are hereby granted leave to file appeal against judgement and decree in the Chief Magistrate’s Court at Mavoko civil case number E184 of 2024 on the following conditions;a.The appeal shall be filed within fourteen (14) days from the date of this ruling.b.The applicants shall within fourteen (14) days from the date of this ruling deposit as security for due performance of the decree the full decretal sum in Mavoko CMCC number E184 of 2024 in an interest earning account held in a reputable bank and operated jointly by the advocates for the parties herein.2.In the event the applicants shall fail to comply with conditions given in orders 1(a) and (b) above within the stipulated period, the application shall be deemed as dismissed and orders for leave and stay of execution shall automatically lapse.3.The respondents shall have the costs of this application. DATED, SIGNED AND DELIVERED AT NAIROBI THIS 5TH DAY OF JUNE 2026.B.M. MUSYOKIJUDGE OF THE HIGH COURT.Ruling delivered in absence of the parties.