https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/13091

Kyanzavi Farmers Company Ltd v Kigen & another (Civil Appeal E248 of 2025) [2026] KEHC 13091 (KLR) (20 August 2026) (Ruling) Neutral citation: [2026] KEHC 13091 (KLR) Republic of Kenya In the High Court at Machakos Civil Appeal E248 of 2025 EO Bitta, J August 20, 2026 Between Kyanzavi Farmers Company Ltd Appellant and Luka Kipkorir Kigen 1st Respondent Joseph Muli Kori 2nd Respondent Ruling 1.The Applicant, by a Notice of Motion dated 25th October 2025, sought the following orders from the Court:a)That the Court be pleased to order a stay of execution of the judgment delivered by the trial court herein on 30th September 2025, pending the hearing and determination of the appeal herein.b)That the costs of the application be provided for. 2.The Motion is premised, inter alia, on the fact that judgment in the matter was delivered on 30th September 2025; that the Applicant, being dissatisfied with the said judgment, lodged the appeal herein; and that the Applicant is genuinely apprehensive that, unless a stay of execution is granted, the Respondents may move swiftly to execute the judgment of the trial court, thereby rendering the appeal nugatory. 3.The Applicant further states that it is willing to provide security for the due performance of the decree. 4.In particular, the Applicant is willing to pay the Respondents part of the sum of Kshs. 700,000/-, which it had proposed in its pleadings and submissions before the lower court, as a condition for the grant of stay. 5.It is further contended that it is in the interests of justice that the application be allowed. 6.The Motion is supported by the factual averments contained in the Supporting Affidavit of Francis Mwikya Kalinzoya, sworn on 25th October 2025. The depositions therein are substantially along the same lines as the grounds in support of the Motion. 7.The Applicant subsequently filed a Further Affidavit on 26th November 2026, in response to the Respondents' Replying Affidavit. 8.In the Further Affidavit, Francis Kalinzoya deposed that the Respondents had proceeded to instruct auctioneers to execute the judgment and that the said auctioneers had proclaimed the Applicant's property. 9.The application is opposed by the Respondents, who filed a Replying Affidavit sworn by Luka Kipkorir Kigen on 26th November 2025. 10.Kigen deposed that the application is vexatious, frivolous and constitutes a blatant abuse of the process of the Court. 11.It was further deposed that the Applicant had already filed a parallel and substantially similar application for stay of execution before the Chief Magistrate's Court in CMCC E 89 of 2023 at Kangundo Law Courts, a fact which the Applicant failed to disclose to this Court. 12.The Respondents contend that the Applicant's failure to make that disclosure ought to disincline the Court from exercising its discretion in the Applicant's favour. 13.The Respondents further contend that the application does not satisfy the mandatory statutory requirements for the grant of a stay of execution, particularly the requirement that the Applicant demonstrate substantial loss. 14.It is their case that the Applicant's affidavit is bereft of any material particulars illustrating the nature or extent of the alleged substantial loss, which, according to the Respondents, is fatal to the application, substantial loss being the cornerstone upon which an application for stay of execution must be anchored. 15.The Respondents acknowledge that the Applicant has a right of appeal, but contend that they, in equal measure, have a right to enjoy the fruits of a lawfully obtained judgment. 16.They further contend that the judgment is for a liquidated monetary sum and that they should not be unjustly deprived of the fruits of the decree, thereby reducing the judgment to a pyrrhic victory. 17.The Respondents also contend that the appeal is devoid of arguable or meritorious grounds and does not disclose an overwhelming, or prima facie, prospect of success. 18.It is further contended that the Applicant has failed to tender any credible evidence of sufficient or realizable security for the due performance of the decree. 19.The Respondents point out that the decree stands at Kshs. 10,000,000/-, exclusive of costs, yet the Applicant has made no meaningful proposal that would safeguard the Respondents' interests in the event the appeal fails. 20.In particular, the Respondents contend that the Applicant's proposal to provide security of Kshs. 700,000/- against a judgment sum of Kshs. 10,000,000/- does not suffice as security for the due performance of the decree. 21.The Respondents further contend that the Applicant has not proved that they are men of straw or that they would be unable to refund the decretal amount; therefore, no substantial loss can occur merely by reason of execution. 22.The Respondents state that, should the Court be inclined to grant a conditional stay, such stay ought to be granted on the condition that half of the decretal amount be paid to the Respondents and the other half be deposited in a joint interest-earning account in the names of the advocates for both parties, pending the hearing and determination of the appeal. 23.Ultimately, the Respondents pray that the application be dismissed. 24.The application proceeded by way of written submissions, with both parties duly filing their respective submissions. 25.The Applicant submitted that its application before the lower court had already been dispensed with and that the lower court file had subsequently been forwarded to the High Court for purposes of the appeal. 26.The Applicant took the position that it had satisfied the conditions for grant of a stay of execution. 27.On substantial loss, the Applicant submitted that, if execution were to proceed, the appeal, which the Applicant contended had a high chance of success, would be rendered nugatory. 28.In support of that proposition, the Applicant relied on the decision of this Court in G.N. Muema P/A (sic) Mt. View Maternity and Nursing Home v Miriam Maalim Bishar and another (2018) KEHC 8780 (KLR), particularly paragraphs 16 and 17, where the Court held:“16. It was the considered view of this court that substantial loss does not have to be a lot of money; it was sufficient if an applicant seeking a stay of execution demonstrated that it would have to go through hardship such as instituting legal proceedings to recover the decretal sum if paid to a respondent in the event his or her appeal was successful, failure to recover such decretal sum would render his appeal nugatory if he or she was successful.17… in the absence of proof of their ability to pay back the said sum, this court was satisfied that the Appellant would suffer ‘substantial loss’; he had thus satisfied the first condition of being granted a stay of execution pending appeal.” 29.The Applicant submitted that, in the present case, the sum in issue is substantial, namely Kshs. 10,000,000/-, and that it is apprehensive that the Respondents may not have the means to refund the decretal amount if the same is paid to them and the appeal subsequently succeeds. 30.On the question of delay, the Applicant submitted that the application was filed less than one month after the decision of the lower court and therefore satisfied the requirement that an application for stay be made without unreasonable delay. 31.With respect to security, the Applicant submitted that it had offered security for costs in the sum of Kshs. 700,000/-. 32.In response, the Respondents submitted that the application falls short of the statutory requirements prescribed under Order 42 Rule 6(2) of the Civil Procedure Rules. 33.The Respondents relied on the decision in James Wangalwa and another v Agnes Naliaka Cheseto (2012) eKLR, where the Court held:“..the fact that the process of execution has been put in motion or is likely to be put in motion by itself does not amount to substantial loss even when execution has been levied and completed, that is to say, the attached properties have been sold, as is the case here, does not in itself amount to substantial loss under Order 42 Rule 6 of the Civil Procedure Rules. This is so because execution is a lawful process.” 34.The Respondents also relied on Elijah v Mangoli (Environment and Land Appeal E078 of 2024) (2025) KEELC 241 (KLR) (Ruling), where the Court held that failure to prove substantial loss merits the denial of an application for stay of execution. 35.The Respondents submitted that the Applicant had failed to demonstrate substantial loss and that the mere mention of the risk of loss, without an empirical demonstration thereof, does not satisfy the applicable legal threshold. 36.It was further submitted that the Supporting Affidavit contains no evidence of financial incapacity and no material demonstrating that execution would cause irreparable harm to the Applicant. 37.The Respondents relied on Machira t/a Machira and Company Advocates v East African Standard (No. 2) (2002) KLR 63, where the Court held that it is not sufficient for an applicant merely to state that substantial loss will result. 38.Rather, the applicant must prove specific details and particulars; and where no pecuniary or tangible loss is demonstrated to the satisfaction of the Court, the Court will not grant a stay. 39.The Respondents submitted that the Applicant had not tendered evidence demonstrating that, should a refund of the decretal amount become necessary, it would be impossible for the Respondents to refund the same. 40.On security, the Respondents submitted that the Applicant's offer of Kshs. 700,000/- against a decretal sum of Kshs. 10,000,000/- amounts to a mockery of the requirements of Order 42 Rule 6(2)(b) of the Civil Procedure Rules, which requires adequate security for the due performance of the decree. 41.The Respondents submitted that the proposed security does not adequately safeguard their interests. 42.They further submitted that they are entitled to enjoy the fruits of their judgment. 43.Finally, the Respondents submitted that, should the Court be inclined to grant a stay of execution, the same ought to be granted on terms that half of the decretal amount be paid to the Respondents, while the remaining half be deposited in a joint interest-earning account in the names of the advocates for both parties, pending the hearing and determination of the appeal. 44.I have considered the Notice of Motion dated 25th October 2025, the affidavit in support thereof, the further affidavit, the replying affidavit filed in opposition, the rival written submissions by counsel and the authorities relied upon. 45.In my view, the issue falling for determination is; Whether the Applicant has satisfied the conditions for the grant of an order of stay of execution pending appeal under Order 42 Rule 6 of the Civil Procedure Rules. 46.The principles governing the grant of an order of stay of execution pending appeal are settled. The jurisdiction of this Court is conferred by Order 42 Rule 6(2) of the Civil Procedure Rules, which provides:“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." 47.In Butt v Rent Restriction Tribunal [1982] KLR 417, the Court of Appeal held that the grant of a stay is a discretionary remedy to be exercised in a manner that does not render an appeal nugatory. 48.Likewise, in RWW v EKW [2019] eKLR, the Court observed that the purpose of a stay is to preserve the subject matter of the appeal while balancing the competing rights of the parties. 49.Further, in Kenya Shell Limited v Benjamin Karuga Kibiru & Another [1986] KLR 410, the Court emphasized that substantial loss is the cornerstone of an application for stay pending appeal. 50.In addition, the Court is enjoined to exercise its discretion judiciously to balance two competing rights. On the one hand is the successful litigant's right to enjoy the fruits of his judgment, and on the other is the unsuccessful party's undoubted right of appeal. The Court must therefore ensure that neither right is unjustifiably prejudiced. 51.I will now consider whether the Applicants have satisfied the requirements under Order 42 Rule 6(2) of the Civil Procedure Rules. The Applicant must therefore satisfy the Court that: the application was made without unreasonable delay; substantial loss may result unless stay is granted; and such security as the Court may order has been furnished for the due performance of the decree. 52.The application was made on 25th October 2025, 25 days from the date of judgment. I don’t believe that the application can be said to have been dilatory on that account. 53.The law is settled that substantial loss is the cornerstone of an application for stay of execution pending appeal. 54.An Applicant must establish other factors which show that the execution will create a state of affairs that will irreparably affect or negate the very essential core of the Applicant as the successful party in the appeal. This is what constitutes substantial loss, a question that was aptly discussed in the case of Silverstein N. Chesoni [2002] 1KLR 867. 55.The Applicant submitted that, in the present case, the sum in issue is substantial, namely Kshs. 10,000,000/-, and that it is apprehensive that the Respondents may not have the means to refund the decretal amount if the same is paid to them and the appeal subsequently succeeds. 56.The Respondent, on the other hand, has responded that execution of a decree is a lawful process and that the Applicant has not demonstrated that they are men of straw incapable of refunding the decretal amount if they are paid before the appeal is heard and determined. 57.That the execution process is in motion does not affect the determination of an application for stay of execution; it may only be a factor in determining the urgency with which such application may be determined. 58.I think the point the Applicant was making is that the sum of Kshs 10 million is substantial and that the Respondents need to show that they can refund the same. 59.The Applicant has relied on the decision of the court in G.N. Muema P/A (sic) Mt. View Maternity and Nursing Home v Miriam Maalim Bishar and another (2018) KEHC 8780 (KLR), where the court held that“16. It was the considered view of this court that substantial loss does not have to be a lot of money; it was sufficient if an applicant seeking a stay of execution demonstrated that it would have to go through hardship such as instituting legal proceedings to recover the decretal sum if paid to a respondent in the event his or her appeal was successful, failure to recover such decretal sum would render his appeal nugatory if he or she was successful.17… in the absence of proof of their ability to pay back the said sum, this court was satisfied that the Appellant would suffer ‘substantial loss’; he had thus satisfied the first condition of being granted a stay of execution pending appeal.” 60.I am aware that whereas some court’s have insisted that it was incumbent upon an applicant to demonstrate that the respondent may not have the means to refund the decretal sum if paid before the appeal is heard and determined others have held that the fact of the respondent’s ability or inability to pay is one within the peculiar knowledge of the respondent, therefore once an applicant raises such apprehension, it is upon the respondent to prove ability to refund. 61.I don’t perceive that there is a hard and fast rule on the issue; I believe that courts are to be guided by the peculiar facts and circumstances of each case, seeing that granting of a stay of execution is an exercise of discretion and substantial loss would vary on a case-by-case basis. 62.In the present case, the respondents were intermediaries who facilitated the Applicant's access to much-needed financial assistance; to expect the applicant to have evidence of the respondents' financial means in those circumstances would be placing an onerous burden on the applicant. 63.The Respondents, on the other hand, have not adduced any evidence that would make the court allay that concern. In the circumstances of this case, I find that the applicant has made out a case for substantial loss in the event stay of execution is not granted. 64.On the issue of security, I agree with the Respondent that the applicant’s offer to provide security for costs less than 10% of the decretal sum is unacceptable. 65.In any event, what is envisaged in the law is not security for costs but security for due performance of the decree, which in this case is KShs 10 million. 66.My reading of the provisions of Order 42 Rule 6(2) of the Civil Procedure Rules is that the Court possesses discretion to determine security to be provided. 67.I have taken into consideration that the applicant hasn’t denied that the Respondent is entitled to some payment for their engagement and has offered to pay kshs 700,000/, I have also considered the Respondent’s concession on the applicant’s right to appeal and proposal in the event I am inclined to grant a stay of execution. 68.The requirement under Order 42 Rule 6(2)(b) is mandatory. However, the Rule does not prescribe the nature of the security to be furnished. Rather, it leaves the nature and sufficiency of the security to the discretion of the Court, provided that it secures the due performance of the decree should the appeal ultimately fail. 69.In Focin Motorcycle Co. Limited v Ann Wambui Wangui & Another (supra), the Court observed that the purpose of security is not to punish a judgment debtor but to guarantee the due performance of the decree. 70.The Court further emphasized that it is ultimately for the Court, and not the parties, to determine the nature of the security that is appropriate in the circumstances of each case. 71.In the circumstances of this case, balancing the rights and interests of the parties herein, I am of the considered view that the interests of justice will be adequately safeguarded by directing that the applicant pays the respondents a portion of the decretal sum and provides a bank guarantee for the remainder of the decretal sum. 72.The upshot is that the application succeeds and I order as follows;A.There shall be a stay of execution of the judgment and decree delivered on 30th September 2025 in Machakos CMCC E 89 of 2023 pending the hearing and determination of the appeal.B.The stay granted in (a) above is conditional upon the Applicant paying the Respondents KShs 2,000,000/- (two million) and furnishing to the Court a bank guarantee for the remainder of the decretal sum within the next 45 days from the date of this order.C.In default of compliance with order (b) above within the stipulated period, the order of stay shall automatically lapse without the necessity of a further order of the Court.D.The costs of the application shall abide by the outcome of the appeal. DATED, SIGNED AND DELIVERED VIA MICROSOFT TEAMS AT MOMBASA THIS 20TH DAY OF AUGUST 2026EMMANUEL BITTAJUDGE OF THE HIGH COURTIn the presence of:Francis C/AKalinga for the Appellant/ ApplicantKipkemoi for the Respondent