https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10922

**REPUBLIC OF KENYA** **IN THE HIGH COURT AT VIHIGA** **CIVIL APPEAL NO. E024 OF 2026** **LUBANGA ALFRED KISUZA....................................APPELLANT/APPLICANT** **=VERSUS=** **NANCY VUKHANE & FRANCIS MANYANI** MARADI (Suing as the Legal Representatives of the Estate of **Elvis Maradi (Deceased) ... RESPONDENTS** **Coram: Before Justice R. Nyakundi** **M/S Chesoli & Co. Advocates** **M/S O.I Law Advocates LLP** **RULING** 1. Before this court is a Notice of Motion dated 6th July 2026, expressed to be brought under Order 42 Rule 6, Order 51 Rule 1 of the Civil Procedure Rules, Sections 1A, 1B, 3A and 79G of the Civil Procedure Act and all other enabling provisions of the law. The Appellant seeks the following orders: 2. *THAT Pending the hearing and determination of this Application, there be a stay of execution of the Judgment and Decree delivered on 11th June 2026 in Vihiga CMCC No. E227 of 2024 together with all consequential orders.* 3. *THAT Pending the hearing and determination of the Appeal, there be a stay of execution of the said Judgment and Decree.* 4. *THAT this Honourable Court be pleased to direct that the decretal sum or such reasonable portion thereof as the Court may determine be secured by such alternative security as the Court may deem just including a reduced deposit, bank guarantee or any other suitable condition in lieu of full cash deposit.* 5. *Costs of this Application be in the cause.* 6. The applicationis based on the following grounds: 7. *Judgment was delivered on 11th June 2026 in Vihiga CMCC No. E227 of 2024 in which the Respondents were awarded Kshs. 3,316,060/= together with costs and interest.* 8. *The trial court granted a temporary stay of execution for thirty (30) days which is due to lapse on 11th July 2026, rendering execution imminent.* 9. *The Appellant is dissatisfied with the whole Judgment and has lodged an appeal raising arguable issues on liability and quantum.* 10. *Unless stay is granted, the Respondents are likely to commence execution immediately upon lapse of the existing stay, thereby rendering the appeal nugatory.* 11. *At all material times, the subject motor vehicle was insured by Invesco Assurance Company Limited under a valid insurance policy.* 12. *The said insurer is currently under statutory management and is therefore unable to satisfy or settle decretal claims arising from insured risks.* 13. *As a result, the Appellant is exposed to imminent execution against his personal assets despite the existence of insurance cover, thereby occasioning substantial loss and injustice. The Appellant has an arguable appeal with high chances of success.* 14. *The Application has been made without unreasonable delay.* 15. *The Appellant is willing to comply with such reasonable terms of security as this Honourable Court may impose.* 16. *It is in the interests of justice that the orders sought be granted.* 17. In support of the application is the sworn affidavit of Lubanga Alfred Kisuza who deponed as follows: 18. *THAT I am the Appellant/Applicant herein.* 19. *THAT Judgment was delivered on 11th June 2026 in Vihiga CMCC No. E227 of 2024 in which the Respondents were awarded Kshs. 3,316,060/=* *together with costs and interest.* 1. *THAT being dissatisfied with the whole of the said Judgment and Decree, I have lodged an Appeal to this Honourable Court raising arguable grounds both on liability and quantum.* 2. *THAT I annex hereto and mark “LAK-1” a copy of the Judgment appealed against and “LAK-2” a copy of the Memorandum of Appeal.* 3. *THAT upon delivery of the Judgment, the trial court granted a temporary stay of execution for thirty (30) days only, which stay is due to lapse on 11th July 2026, making execution imminent.* 4. *THAT unless stay of execution is granted, the Respondents are likely to proceed with execution immediately upon expiry of the said stay, which will expose me to substantial loss and render my Appeal nugatory.* 5. *THAT at all material times, the motor vehicle registration number KAZ 256E was insured by Invesco Assurance Company Limited under a valid insurance policy.* 6. *THAT I am aware and verily believe that Invesco Assurance Company Limited is currently under Statutory Management and is therefore unable to promptly settle decretal claims arising from insured risks.* 7. *THAT as a result of the said statutory management, I am now exposed to personal execution for a liability that was ordinarily covered under insurance thereby suffering undue hardship and financial prejudice.* 8. *THAT I stand to suffer substantial loss unless this Honourable Court grants stay of execution pending the hearing and determination of the Appeal.* 9. *THAT I am ready and willing to comply with any reasonable conditions as to security that this Honourable Court may impose, including partial deposit, bank guarantee, or any other suitable alternative security.* 10. *THAT I believe my Appeal raises serious and arguable issues with high chances of success, particularly on liability, vicarious liability and quantum of damages.* 11. *THAT I have instructed my Advocates to make this Application without unreasonable delay and is brought in good faith.* 12. *THAT it is in the interests of justice that the orders sought be granted to preserve the subject matter of the Appeal.* 13. In response to the application to the replying affidavit by Nancy Vukhane who avers as follows: 14. *THAT I am one of the Respondents herein, fully conversant with the facts relevant to the Notice of Motion application before the Honourable Court and therefore competent and dully authorized to swear this Affidavit in opposition of the same on my behalf and on behalf of FRANCIS MANYANI MARADI, my co-respondent.* 15. *THAT the facts and matters deponed to herein are derived partly from my own knowledge, partly from information obtained from records and documents belonging to and in my possession and partly from information and advice received by me from our Advocates, Messrs. OI Law Advocates LLP (hereinafter referred to as “our Advocates”). To the extent that any statement made herein is based on information or belief, I have disclosed hereunder the source or ground (as the case may be) of such information or belief and I verily believe the same to be true.* 16. *THAT I have read and understood and had explained to me by my Advocates on record, the Appellant/Judgment Debtor’s (hereinafter the “Applicant”) Notice of Motion Application and the Supporting Affidavit therein sworn on the 6th July,2026 together with the annexures thereto and wish to respond to the same as hereunder.* 17. *THAT I have been advised by my Advocates, which advice I verily believe to be sound, that the instant application is, to say the least, a delaying tactic made in bad faith, misconceived, incompetent, devoid of merit and an abuse of the court process and ought to be dismissed with costs forthwith.* 18. *THAT I am advised by my advocates of record, which advise I verily believe to be true, that application has no footing upon which to stand, and that the Applicant has not satisfied the mandatory conditions under Order 42 rule 6 of the Civil Procedure Rules in that: a. That the stay orders issued by the lower court are yet to lapse, making the current application an abuse of the court process. b. There is no evidential proof of purported financial loss that the applicant alleges it will suffer. c. The Applicant is not keen on furnishing security for the said judgment, and is only keen on being granted stay. d. No evidence of purported execution has been initiated, and the application is merely anticipatory.* 19. *THAT the process of execution has not commenced, and even if the same was to commence, it is indeed a lawful process and merely pleading ‘irreparable financial loss’ does not warrant the stay of execution itself. Stay of execution is itself an equitable remedy and the Applicant has not sufficiently demonstrated how he stands to suffer if the stay is not granted.* 20. *THAT I am advised, and I verily believe the same to be true, that a party who is already protected by existing stay orders cannot simultaneously seek further stay orders from a superior court on the basis of the same anticipated execution. To allow such a practice would open the floodgates to abuse of court process and would enable judgment debtors to indefinitely delay the enforcement of valid court decrees by filing successive stay applications across multiple courts without meeting the prerequisites for such relief.* 21. *THAT I am advised by my advocates of record, which advise I verily believe to be true, that I am a successful litigant who should not be deprived of the fruits of the judgment.* 22. *The Appellant/Applicant has failed to demonstrate, with any particularity or specificity, what substantial loss they stand to suffer if the orders of stay are not granted by this Court. The Supporting Affidavit is replete with bare and unsubstantiated assertions and does not particularize the nature, extent or quantum of the alleged substantial loss. Unsubstantiated assertions do not constitute evidence.* 23. *I am advised, and I verily believe the same to be true, that the law requires an applicant for stay of execution pending appeal to demonstrate with specificity that they will suffer substantial loss if the stay is not granted. General and vague averments are insufficient. The Appellant/Applicant has not discharged this burden.* 24. *THAT I submit that the balance of convenience in this matter tilts heavily in favour of the Respondent. The Respondent holds a valid and subsisting decree which the Appellant/Applicant has taken no genuine steps to settle. To grant a further stay in these circumstances would be to reward dilatory and procedurally defective conduct by the Appellant/Applicant.* 25. *THAT I am advised by my advocates of record, which advise I verily believe to be true, that the orders sought herein are discretionary, and the court must perform a balancing act when confronted by such a situation.* 26. *THAT in the circumstances of this case, there is no compelling reasons why the orders sought should be granted, as the applicant has not furnished any evidence of an impending execution, neither have they furnished security upon the court.* 27. *THAT it is nearly three years from the time the claim was filed in the lower court, and any further delay in payment of the decretal sum means that I will not be able to enjoy the fruits of my judgment.* 28. *THAT indeed, my advocates of record further advise me that if this court exercises its discretion to balance the competing interests of the Applicant and those of the decree holder, then the following conditions should be met by the Applicant: a. The entire decretal sum should be deposited and held as security in an interest earning account jointly held in the names of the advocates representing the parties herein. b. The applicant should take the necessary steps to fast track the execution of the appeal currently pending in court without any further delay.* 29. *THAT I am advised by our advocates of record, which advise I verily believe to be true, that the Appellant/Applicant has not furnished any security whatsoever for the decretal sum or the due performance of the decree. The provision of adequate security is a mandatory requirement under Order 42 Rule 6 and is not a matter of discretion — it is a condition that must be satisfied before any order of stay can be made. The failure to furnish security is fatal to this Application.* 30. *THAT I swear this affidavit to assert the fact that the instant application is fatally defective, lacks merit as there is no security that was furnished, the intended appeal is a clear academic exercise and as a consequence, the same should be dismissed with costs* 31. The application was canvassed by way of written submissions by both counsels within the legal framework of Order 42 Rule 6 of the CPR. First Learned Counsel for the appellant contended and urged this court to grant the interim stay of execution for the factual and legal threshold has been met. In support of the case for the applicant/intended appellant learned counsel placed reliance in the following authorities; *Kango v Nthuli Civil Appeal No. 219 of 2023 [2024] KEHC 117 KLR, Westmont Holdings SDN BHD v Central Bank of Kenya & 2 Others Petition No. 16 E023 of 2021[2023] KESC 11 KLR, Butt v Rent Restriction Tribunal [1982] KLR 417 and National Industrial Credit Bank Ltd v Aquinas Francis Wasike & Another [2006] eKLR*. From the affidavit evidence the applicant has been able to demonstrate, that without stay of execution he would be ruined and that he has an appeal which has some prospect of success. The old rule that a stay of execution would be only be granted where the appellant satisfied the court that if the damages and costs were paid there would be no reasonable prospect of recovering them if the appeal succeeded is now too far to stringed a test which does not reflect the current jurisprudential dicta. 32. I also bear in mind that at the upper layer of the legal and regulatory framework is the binder constitutional provision that every litigant to a proceeding before an inferior court in which a ruling/ judgment as been delivered or a decision which does limit his/her rights together with fundamental freedoms and is aggrieved with that judicial discretion of the court, has a constitutional right to pursue his/her right of appeal to a superior court. Therefore, whether the court should exercise its discretion to grant a stay of execution under Order 42 Rule 6 of the CPR is underpinned on all the circumstance of the case but the essential question which should not be avoided by the court and the same must be answered firmly is whether there would be a risk of injustice to any of the parties or both if stay is refused. The interest of justice requires another consideration namely whether the applicant has some prospects of succeeding in the appeal. 33. In answer to this narratology by the learned counsel for the applicant/appellant, it was the respondent contention that the provisions of Section 42 Rule 6 of the CPR have not been met by the appellant. It was learned counsel’s submissions that this court be convinced to rely on the following authorities to decline exercise of discretion to grant stay of execution; *Butt v Rent Restriction Tribunal [1982] KLR 417, Kagwimi Kangethe Co. Adv. V Mits Electrical Co. [2008] KEHC 2367 KLR, Vishram Ravji Halai v Thorton & Turpin (1963) Ltd [1990] KLR 365, Njenga v Kimuyu Civil appeal E163 of 2022 [2023] KEHC 23078, and Kalume v Mnjala & 6 Others civil appeal E164 of 2025 [2026] KEHC 4356 KLR*. According to learned counsel’s submission the intended appellant/applicant has not demonstrated that substantial loss may result if stay is not granted and therefore no such discretion should be exercised in his favor at all. 34. This brings to the two cannons or concepts referenced as real and realistic prospect of the appeal succeeding as opposed to fanciful prospect of success in appeals of this nature can be drawn from the memorandum of appeal. This forms the basic structure upon which the court can opine whether the criteria has been met for the formulation of stay of execution pending appeal as stipulated under Order 42 Rule 6 of the CPR. Thus at an opportune time this is what the intended appellant is proposing an appeal’s court to direct its mind to establish as to whether there is merit at the interparty forum on the merits of the appeal: 35. *THAT the learned trial magistrate erred in law in the application of the doctrine of vicarious liability by* *holding the Appellant liable for the actions of a third party who took and drove the motor vehicle without the Appellant's authority, knowledge, consent or permission while the Appellant was away from home.* 36. *THAT the learned trial magistrate erred in law and fact by failing to properly consider the evidence relating to the criminal proceedings arising from the accident, which proceedings identified and charged another person as the driver of the motor vehicle at the material time.* 37. *THAT the learned trial magistrate erred in law and fact by failing to find that the deceased substantially contributed to the occurrence of the accident by operating a motorcycle without a valid driving license and by failing to apportion liability accordingly.,* 38. *THAT the learned trial magistrate erred in law and fact by finding that the Appellant's son was the driver of the motor vehicle at the material time contrary to the evidence of the investigating officer who testified that one Nixon Kariuki was the driver.* 39. *THAT the learned trial magistrate erred in law and fact by relying on speculation and conjecture rather than evidence in arriving at findings on liability.* 40. *THAT the learned trial magistrate erred in law and fact by adopting a multiplicand of Kshs.15,646/= based on the Minimum Wages Gazette Notice despite finding that no documentary evidence had been produced to establish the deceased's earnings.,* 41. *THAT the learned trial magistrate erred in law and fact by applying an excessive multiplier and dependency ratio not supported by the evidence on record.* 42. *THAT the learned trial magistrate erred in law and fact by awarding special damages in the sum of Kshs.612,700/= without strict proof thereof and without adequately addressing the authenticity and evidential value of the receipts produced.,* 43. *THAT the learned trial magistrate erred in law and fact by awarding damages that were excessive, inordinately high and unsupported by the evidence and applicable legal principles.* 44. *THAT the learned trial magistrate's findings on liability and quantum were against the weight of the evidence on record.* 45. *REASONS WHEREFORE the Appellant prays that this Honourable Court be pleased to:* 1. *Allow the appeal.* 2. *Set aside the judgment and decree of the trial court delivered on 11th June 2026.,* 3. *Dismiss the Respondents' suit with costs; or in the alternative reassess liability and quantum as this Honourable Court may deem fit.* 4. *Award the costs of this appeal and of the proceedings in the trial court to the Appellant* 46. I have cumulatively and entirely evaluated the affidavit evidence, the memorandum of appeal, and the principles in the cited authorities by both counsel under instruction of this notice of motion. One of the key factors I must consider is the constitutional imperative on the right to appeal within the hierarchy of courts in our legal system. It is also incumbent upon this court to consider the likely prejudice to the parties if the application is granted as against if it is not. This weighing exercise must be done within the context of the overriding objective under Section 1(A), 1(B) of the CPA as construed with Order 42 Rule 6 of the CPR which is to do justice to the parties. The applicant’s evidence is that he would suffer significant prejudice if the impugned judgment is not subjected to an appeals process. This is in line with the principle that the court would generally grant a stay if refusal means the appeal even if successful would be render nugatory. 47. In light of the foregoing discussion and conclusions, it is my opinion that the applicant’s appeal has a real prospect of succeeding on the appeal and on arrival at this finding it is an appropriate matter for stay to be granted pending the outcome of the appeal. *Traditionally, there have been two principles which must be borne in mind at all times, when considering a stay of execution. The primary one is that a successful litigant should not be deprived of the fruits of his judgment (The Annot Lyle (1886) 11 P. 141 at p. 146). The second is that the court ought to see that a party exercising his right to appeal does not have his appeal, if successful, rendered nugatory. (See Wilson v Church (No 2) (1879) 12 Ch. D 454 at p.458- 9)* 48. Accordingly, it is my ruling. That: 1. *The applicant intended appellant is granted leave to appeal.* 2. *The proceeding in execution of the judgment delivered by the court below dated 11th June 2026 be stayed pending the outcome of the appeal.* 3. *The record of appeal together with submission by the appellant be filed within 21 days from today’s ruling and served upon the respondent with expediency of timeline.* 4. *The appeal be deemed as duly admitted for hearing under Article 50 of the constitution as read with Order 42 of the Civil Procedure Rules.* 5. *The respondent on being served be at liberty to file her written submission on the interlocking issues premised on the memorandum of appeal.* 6. *The judgment of this appeal be and hereby scheduled on 16th of September 2026 with a status conference scheduled on 25th August before the Deputy Registrar for compliance.* 7. *Orders accordingly.* **DATED, SIGNED AND DELIVERED THIS 20TH DAY OF JULY 2026.** **…………………………..………** **R. NYAKUNDI** **JUDGE**