https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/13034

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KEMNYA AT ISIOLO** **CIVIL APPEAL NO. E011 OF 2026** JESSE MUTIGA LAIBUNI…………………………………………. APPELLANT VS DAVID NJOROGE KURIA……………………………………………RESPONDENT **RULING** 1. The Appellant’s Notice of Motion dated 12.06.2026 seeks orders as follows: *1). (spent)* *2). (spent)* *3). That pending the hearing and determination of the Appeal, this honourable court be pleased to issue a temporary stay of execution of the Judgment delivered on 9th June in Isiolo MCCC/ E070/2025 and any consequential orders arising therefrom.* *4). That costs of this Application be provided for.* **The Applicant’s case.** 1. The Application is supported by the grounds appearing on the face of the Motion and the supporting Affidavit of the Applicant. 2. The Applicant states that the Appeal stands a high chance of success; That he intends to challenge, among others, the trial court’s interpretation of the “daily rate”; the dismissal of the contemporaneous worksheet; the shifting of the burden of proof to the Appellant and imputing a self- renewal term into the contract, when there was no such express provision. 3. The Applicant further states that there was no delay in filing the Application; that he will suffer substantial loss unless stay is granted, that the Appeal will be rendered nugatory, and that he is ready to abide by any order as to costs. 4. In his submissions the Applicant argues that the discretion to grant stay should be exercised so as not to prevent an Appeal and that save for evidence of an overwhelming hindrance, stay should be granted. The Applicant has relied on the decision in ***Butt vs Rent restrictions Tribunal (1982) KLR 417*** to buttress his submissions in this regard. 5. The Applicant further submits that the purpose of stay is to preserve the subject matter and to safeguard the Appellant’s right of appeal while balancing that right against the respondent’s right to the fruits of the judgment. It is argued that that balance in this case can be achieved through placement of security by the Appellant. 6. The Appellant also submits that the burden to demonstrate the ability to refund the decretal sum is on the respondent and that in the present case, the Applicant’s apprehension that the decretal sum may not be refunded in the event that the Appeal succeeds has not been allayed by the respondent. 7. The Applicant has urged the court to consider the consequences of not granting stay; that in ***James wangalwa & Ano vs Agnes Naliaka(2012) e KLR,*** substantial loss was described as the state of affairs that would irreparably affect or negate the essential core of a successful Appeal; that immediate enforcement of a contested contractual sum without any evidence of the respondent’s ability to repay precisely creates the risk that preservation by stay is intended to avert. **The Respondent’s case** 1. The Respondent opposes the Application through his Replying Affidavit sworn on 20th July 2026. 2. The Respondent argues that the trial court’s decision was made on sound findings of facts and the law; that the Appellant’s Application does not satisfy the conditions of Order 42 (6) (2) of the Civil procedure Rules. 3. The Respondent further states that there is no evidence that the Applicant will suffer any impairment of his business, if stay is not granted and no other particulars of substantial loss that the Applicant is likely to suffer have been demonstrated. 4. The Respondent states that he is the registered owner and commercial lessor of heavy construction machinery including Motor vehicle registration number KHMA 840QJCB, Backhoe loader, which forms the subject matter of the lower court suit and this Appeal. That he frequently hires out the said Loader, and therefore he is in good financial standing and capable of refunding the decretal sum in the event that the Appeal succeeds. 5. The Respondent further argues that the Applicant’s affidavit is argumentative and conclusionary and ought to be discarded by the court, and further that no offer of security has been made. 6. In his submissions, the respondent argues that the conditions set out under Order 42(6) (2) of the civil procedure rules are conjunctive not disjunctive; that “ *they share an inextricable bond such that the absence of one will affect the exercise of discretion by the court in granting stay”* (ref: ***James wangalwa & Ano vs Agnes Naliaka ( 2012) eKLR ).*** Thus, it is argued, the absence of delay in filing the present Application does not excuse the failure to satisfy the other conditions prerequisite to the granting of stay. 7. The respondent reiterates that the Applicant’s Affidavit has failed to demonstrate substantial loss; that substantial loss is the cornerstone of the jurisdiction to grant stay, and that in the absence of it, there is no reason to keep the decree- holder out of his money. The Respondent has cited the decision in ***Kenya shell ltd vs Kibiru & Ano (1986) KLR 410*** to buttress the aforesaid contention. 8. On the provision of security to secure due performance in the event that the Appeal fails, it is argued that, as a sign of good faith, the offer for security ought to have come directly from the Applicant, and that the Applicant’s offer that “ he *is willing to abide by any order as may be made by the court as to security for costs”* , is not sufficient. 9. It is the Respondent’s final submissions that a successful litigant should not lightly be deprived of the fruits of his judgment. **Analysis and determination** 1. I have considered the Notice of Motion dated 12th June 2026, the affidavits filed by the parties, their respective submissions and the authorities cited. The sole issue for determination is whether the Applicant has satisfied the conditions for the grant of stay of execution pending appeal. 2. The jurisdiction of this Court to grant stay of execution pending appeal is governed by Order 42 rule 6(1) and (2) of the Civil Procedure Rules. Under sub -rule (2), an applicant must satisfy the Court that: substantial loss may result unless the order of stay is granted; the application has been made without unreasonable delay; and such security as the Court may order for the due performance of the decree or order ultimately binding upon the applicant has been given. 3. The above conditions are cumulative. An applicant is required to satisfy all of them before the Court can exercise its discretion in his favour. Nevertheless, the discretion must be exercised judicially and in a manner that balances the appellant’s right of appeal against the respondent’s right to enjoy the fruits of the judgment. 4. In ***Butt v Rent Restriction Tribunal***(supra) cited by the Applicant, the Court of Appeal held that the power to grant or refuse stay is discretionary; that the discretion should be exercised so as not to prevent an appeal; and that, where appropriate, stay may be granted upon terms as to security. The existence of an appeal, however, does not create an automatic entitlement to stay. The Applicant must still bring himself within Order 42 rule 6(2) of the civil procedure Rules. 5. The Applicant has argued that his appeal has high chances of success and has identified the trial court’s interpretation of the expression “daily rate”, its rejection of a contemporaneous worksheet, its alleged shifting of the burden of proof and its implication of a self-renewal term into the parties’ contract as some of the intended grounds of appeal. 6. It is not for this court, at this interlocutory stage, to make a definitive findings on the merits of those grounds. More significantly however, whether an appeal is arguable or has high chances of success is not one of the express statutory conditions under Order 42 rule 6(2). That consideration is only relevant principally, to ensuring that the intended appeal is not rendered nugatory. It cannot replace the requirement that substantial loss be established. 7. Substantial loss is the cornerstone of the jurisdiction to grant stay of execution. In ***Kenya Shell Limited v Benjamin Karuga Kibiru***(supra) the Court of Appeal stated that, in the absence of evidence of substantial loss, it would be difficult to justify keeping a successful litigant out of the fruits of his judgment. The Court must balance the need to preserve an appeal against the equally important principle that a decree-holder should not be deprived of the fruits of his judgment without sufficient cause. 8. Similarly, in ***James Wangalwa & Another v Agnes Naliaka Cheseto*** (supra),the Court explained that the mere fact that execution has commenced or is likely to commence does not, by itself, amount to substantial loss, as execution is a lawful consequence of a judgment. Instead the applicant must demonstrate the particular state of affairs that would irreparably affect or negate the essential core of the appeal if stay is refused. 9. The decree in the present case is a money decree. Ordinarily, payment of a decretal sum does not render an appeal nugatory because the money can be repaid if the appeal succeeds. An applicant must therefore demonstrate either that payment would occasion him serious financial hardship or that there is a real risk that the respondent would be unable to refund the money. 10. The Applicant has not particularized any financial hardship that he would suffer upon satisfying the decree. He has not disclosed his financial position or demonstrated that payment of the decretal sum would cripple his business, or otherwise cause loss incapable of adequate restitution. The Applicant’s assertion that he will suffer substantial loss and that the appeal will be rendered nugatory is, without any factual basis. 11. The Applicant has also asserted that the Respondent may be unable to refund the decretal sum should the appeal succeed. The evidential burden concerning a decree-holder’s means must be approached in accordance with the principle stated in ***National Industrial Credit Bank Limited v Aquinas Francis Wasike & Another* [2006] eKLR.** An applicant cannot reasonably be expected to know every detail of the respondent’s financial affair. Consequently, once the applicant places before the Court a reasonable apprehension that the respondent may be unable to refund the decretal sum, the evidential burden shifts to the respondent, because information about his means is especially within his knowledge. 12. That principle does not, however, dispense with the Applicant’s initial legal burden. The apprehension expressed must have a reasonable factual basis. A bare statement that the decree-holder may not refund the decretal sum is not, without more, sufficient proof of substantial loss. In the present case, the Applicant has not placed before the Court any facts upon which his apprehension regarding the Respondent’s ability to refund is founded. 13. On the other hand, and contrary to the Applicant’s assertion that the Respondent has not made any effort to demonstrate his ability to refund the decretal sum, the Respondent has deposed that he is the registered owner and commercial lessor of heavy construction machinery, including motor vehicle registration number KHMA 840Q, a JCB backhoe loader, which he hires out commercially. He has consequently asserted that he is in good financial standing and is capable of refunding the decretal sum should the appeal succeed. 14. The Applicant did not place any further evidence before the Court to controvert that assertion or demonstrate that the disclosed asset and business are illusory or insufficient. In those circumstances, the Court has no proper evidential basis upon which to conclude that payment of the decretal sum would expose the Applicant to an irrecoverable loss. 15. Thus, based on the Respondent’s response, and the fact that the disputed award arise from the hiring out of the mentioned truck, am satisfied that the respondent has demonstrated that he has the financial capability to refund the decretal sum, if the Appeal succeeds. 16. The Court therefore finds that the Applicant has failed to established substantial loss within the meaning of Order 42 rule 6(2) of the civil procedure Rules. 17. On whether the Application was expeditiously filed, the impugned judgment was delivered on 9th June 2026, while the present application was filed on 16th June 2026. The court is satisfied that the application was made without unreasonable delay. 18. On security**, Order** 42 rule 6(2)(b) requires security for the due performance of the decree or order that may ultimately be binding upon the applicant. The security contemplated by the rule is not security for costs. Its purpose is to protect the decree-holder and assure the performance of the decree should the appeal fail. The Applicant has not made a specific proposal as to the nature or amount of security. Nonetheless, the absence of a specific proposal is not invariably fatal because the nature and amount of security remain matters for the Court to determine. 19. The Court could have imposed suitable conditions, including the deposit of the decretal sum or part thereof in a joint interest-earning account, if the Applicant established substantial loss. Security cannot, however, cure the failure to satisfy the foundational requirement of substantial loss. 20. Ultimately, the Applicant has failed to satisfy the conditions for granting stay pending Appeal. The Application lacks merit and it is hereby dismissed. Costs of the Application shall abide the outcome of the appeal. Dated, signed and delivered at Nairobi, via *Microsoft teams* this 20th day of August 2026. S. Chirchir Judge. In the presence of: Roba Katelo- Court Assistant Mr. Andati for the Respondent