https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7747

Kinyua v Gitonga (Civil Appeal E045 of 2025) [2026] KEHC 7747 (KLR) (4 June 2026) (Ruling) Neutral citation: [2026] KEHC 7747 (KLR) Republic of Kenya In the High Court at Murang'a Civil Appeal E045 of 2025 TW Ouya, J June 4, 2026 Between Walter Kinyua Appellant and Newton Mutuma Gitonga Respondent Ruling Introduction: 1.Before this Court is an Amended Notice of Motion dated 13th May 2025 brought pursuant to Sections 1A,3,3A and 89 of the Civil Procedure Act Cap 21, Order 8 Rule 1, Order 42 Rule 6, Order 51 Rule 1 and 3 of the Civil Procedure Rules 2010 seeking the following orders:i.Spent.ii.That upon hearing Ex-parte, this Honourable Court be pleased to issue an interim order of stay of execution of the Judgement, Decree and all consequential orders made in Civil Case No. E456 of 2023 on 15th April 2025.iii.That upon hearing inter-parties, this Honourable Court be pleased to issue an order of stay of execution of Judgment and Decree and all consequential orders given by the subordinate Court in Civil Case No. E456 of 2023 on 15th April 2025 pending the hearing and determination of the Appellant/ Applicant’s Appeal.iv.That the costs of this application abide the outcome of the appeal. 2.The application is premised on the grounds inter alia that judgement was delivered on 15th April 2025 in favour of the Respondent and the applicant is seeking stay of execution of the orders issued on the said date. 3.The application is supported by an affidavit sworn by the Appellant on 24th April 2025. The Appellant/applicant deposed that judgment was delivered on 15th April 2025 in favour of the Respondent for a sum of Kshs. 2,200,000 plus costs and interests of which he was condemned to pay. That he sought 30 days’ stay of execution and is apprehensive that the Respondent could undertake execution of the Decree of 15th April 2023 before the pending appeal is heard and/or determined. 4.The Appellant further avers that unless the application is heard and an order for stay is granted pending hearing and determination of the appeal, the Respondent will proceed to execute the said judgement and decree and the appeal will be defeated and rendered nugatory, subjecting the Appellant to suffer irreparable loss and damage incapable of being compensated. 5.The Respondent opposed the said application in its entirety. Averring inter alia that the Application is brought in bad faith and is an abuse of the court process, the Applicant the has not demonstrated substantial loss, has failed to satisfy the decretal sum and has not offered any security for due performance. The court was urged to dismiss the application and allow the Respondent to enjoy the fruits of his judgement. 6.The application was canvased by way of written submissions. 7.The Appellant raises three issues for determination in his submissions dated 23rd August 2025 namely:i.Whether the Applicant has demonstrated that he has an arguable appeal with a high probability of success and which appeal will be rendered nugatory if an order for stay of execution is not granted.ii.Whether the Applicant has demonstrated that he will suffer irreparable loss and damage if an order for stay of execution is not granted.iii.Whether the Appellant/Applicant should be condemned to pay security pending the hearing and determination of the Appeal. 8.The Appellant submits that the appeal has a high probability of success and which will be rendered nugatory if an order for stay of execution is not granted. 9.The Appellant further submits that he will suffer irreparable loss and damage if an order for stay of execution is not granted. The Appellant submits that he is over 70 years old, retired with serious health challenges with no regular income. The Appellant submits that he was condemned to pay Kshs. 2,200,000 plus costs of the suit and interest, which sum the Appellant is not able to raise given his current health and income status. 10.The Appellant sites Order 42, rule 14 (1) of the Civil Procedure Rules:“At any time after the memorandum of appeal has been served the court, in its discretion may order the Appellant to give security for the whole or any part of the costs of such appeal.” 11.The Respondent submits on whether granting stay of execution pending appeal is merited. While the Respondent acknowledges that relief for stay of execution is discretionary, the discretion must be exercised judicially. The Respondent further submits that the Appellant has not provided any material evidence showing what specific loss he will suffer. The Respondent has relied on the case of Andrew Kuria Njuguna vs Rose Kuria (Nairobi Civil Case No. 224 of 2001 (unreported) as follows:“Coming to the substantial loss likely to be suffered by the applicant of the stay is not granted, she was bound to place before the court such material and information that should lead this court to conclude that surely she stood a risk of suffering substantial loss moneywise or other, and therefore grant the stay.” 12.I have analyzed the submissions by both counsel and considered the Application and the response thereto by the Respondent. It is my view the following issue arises for determination:i.Whether orders of stay of execution of judgment pending appeal should issue. 13.This court has to balance the interest of the applicant who is seeking to preserve the status quo pending the hearing of the intended appeal so that the appeal is not rendered nugatory and the interest of the Respondent who is seeking to enjoy the fruits of his judgment. In other words, this court should not only consider the interest of the applicant but has also to consider, in all fairness, the interest of the Respondent who has been denied the fruits of his judgment. 14.Order 42 Rule 6 of the Civil Procedure Rules gives provision on the law concerning stay of execution pending appeal which stipulates as follows:“(1)No appeal or second appeal shall operate as a stay of execution or proceedings under a decree or order appealed from except in so far as the court appealed from may order but, the court appealed from may for sufficient cause order stay of execution of such decree or order, and whether the application for such stay shall have been granted or refused by the court appealed from, the court to which such appeal is preferred shall be at liberty, on application being made, to consider such application and to make such order thereon as may to it seem just, and any person aggrieved by an order of stay made by the court from whose decision the appeal is preferred may apply to the appellate court to have such order set aside.(2)No order for stay of execution shall be made under sub rule (1) unless:(a)the court is satisfied that substantial loss may result to the 1st 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 1st Applicant.” 15.There are three conditions for granting of stay order pending Appeal pursuant to the above cited provision as follows:i.The Court is satisfied that substantial loss may result to the applicant unless stay of execution is ordered;ii.The application is brought without undue delay and;iii.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. 16.The purpose of stay of execution is to preserve the substratum of the case as was held in the case of Consolidated Marine. vs. Nampijja & Another, Nairobi Civil App.No.93 of 1989, where the court held that:“The purpose of the application for stay of execution pending appeal is to preserve the subject matter in dispute so that the right of the Appellant who is exercising his undoubted right of appeal are safeguarded and the appeal if successful is not rendered nugatory.” 17.On what amounts to substantial loss, the Court of Appeal in the case of Mukuma vs Abuoga (1988) KLR 645 stated that:“Substantial loss is what has to be prevented by preserving the status quo because such loss would render the Appeal nugatory.” 18.As to the mandatory provision of security, I find that Order 42 Rule 6 (2) (b) of the Civil Procedure Rules stipulates in mandatory terms that the third condition that a party needs to fulfil so as to be granted the stay order pending appeal is that (s)he must furnish security. In the case of Aron C. Sharma vs. Ashana Raikundalia T/A Rairundalia & Co. Advocates the court held that:“The purpose of the security needed under Order 42 is to guarantee the due performance of such decree or order as may ultimately be binding on the Applicant. It is not to punish the judgment debtor … Civil process is quite different because in civil process the judgment is like a debt hence the Applicants become and are judgment debtors in relation to the Respondent. That is why any security given under Order 42 rule 6 of the Civil Procedure Rules acts as security for due performance of such decree or order as may ultimately be binding on the Applicants. I presume the security must be one which can serve that purpose.” 19.The question now is whether the applicant has satisfactorily discharged the conditions warranting the grant of stay of execution of judgment pending appeal and what orders should the court make. 20.The contention by the Appellant/applicant is that the matter for determination is a subrogation claim and thus the decretal sum ought to be paid to Directline Assurance Limited. Given the Directline Assurance Limited operation instability, the Appellant is apprehensive that in the event the appeal succeeds, the Respondent will not be in a position to compensate the Appellant for the loss, damage and/ or restitution of the decretal sum if execution is allowed to proceed. 21.The judgement and decree in the instant application were issued on 15th April 2025. The Appellant filed a Notice of Motion dated 24th April 2025 and subsequently filed an Amended Notice of Motion dated 13th May 2025. In that front, the applicant has brought the application without undue delay. 22.As the applicant has stated that he is over 70 years old, retired with serious health challenges with no regular income I find that he stands to suffer substantial loss if stay of execution is not granted. 23.In the premises, the application dated 13th May 202 is allowed only to the extent that this court hereby grants the orders of stay of execution of judgement and decree in subordinate Court Civil Case No. E456 of 2023 on 15th April 2025 pending hearing and determination on the condition that the Appellant/Applicant deposits in court security for the due performance of the decree sum of Kshs. 500,000 in 45 days. In default on the part of the applicant, stay of the orders shall automatically lapse. 24.Final Orders:i.Stay of execution is granted pending appeal.ii.Applicant to deposit Kshs. 500,000 within 45 days.iii.Stay will lapse automatically upon default of no. ii above.iv.No order as to costs. DATED, SIGNED AND DELIVERED VIRTUALLY ON THIS 4TH DAY OF JUNE, 2026.HON. T. W. OUYA, OGWJUDGEIn the presence of:Ms. Gitau for Applicant/AppellantNo appearance for RespondentNyabuto – Court Assistant