https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6907

Langat v Ruto & another (Civil Suit 3A of 2017) [2026] KEHC 6907 (KLR) (20 May 2026) (Ruling) Neutral citation: [2026] KEHC 6907 (KLR) Republic of Kenya In the High Court at Bomet Civil Suit 3A of 2017 JK Ng'arng'ar, J May 20, 2026 Between Elizabeth C. Langat Plaintiff and Isaac Ruto 1st Defendant The Standard Group Ltd 2nd Defendant Ruling 1.Through the Notice of Motion Application dated 18th March 2026, the Applicant sought the following orders: -I.Spent.II.Spent.III.That this Honourable Court be pleased to grant an order for payment of the Applicant’s portion of the decretal sum owing to the Respondent by way of equal monthly instalments of one hundred thousand Kenya Shillings only (Kshs 100,000/=) until payment in full.IV.That pending the full settlement of the decretal sum hereinabove, there be a stay of execution of the decree issued on 10th August 2020.V.That costs of this Application be provided for.VI.Any other order this Honourable Court deems fit to grant in the circumstances. 2.The Application was brought under Order 22 rule 22, Order 51 Rule 1, Order 21 Rule 12 of the Civil Procedure Rules and section 1 and 3A of the Civil Procedure Act. The Application was premised on the grounds on the face of the Application and further by the Supporting Affidavit sworn by Isaac Ruto on 18th March 2026. The Applicant’s/1st Defendant’s case. 3.The Applicant stated through the Judgement dated 1st July 2020, this court found the Defendants () jointly and severally liable for libel against the Plaintiff and awarded the Plaintiff general damages of Kshs 5,000,000/=. The Applicant further stated through Nakuru Court of Appeal Civil Appeal Number 51 of 2020, the Court of Appeal substituted liability and held that the 1st and 2nd Defendant were liable in the ratio of 70:30 respectively. 4.It was the Applicant’s case that he had already paid the Plaintiff Kshs 1,000,000/= via the consent dated 9th December 2021. That his balance was now Kshs 2,500,000/=. It was the Applicant’s further case that the balance was colossal and he faced imminent execution thereby exposing him to severe financial loss and irreparable prejudice. 5.The Applicant stated that he was ready and willing to deposit security and his proposal was to pay the balance in monthly instalments of Kshs 100,000/= until payment in full. The Applicant further stated that he had brought the Application timeously and in good faith. 6.Through his written submissions dated 16th April 2026, the Applicant submitted that he had satisfied the conditions for stay of execution as envisioned by Order 42 Rule 6 of the Civil Procedure Rules. That the amount was colossal and immediate execution would paralyse the Applicant thereby suffering substantial loss. He relied on Beuttah Anselimo Maali vs Ethiopian Airline Enterprises (2013) eKLR. 7.It was the Applicant’s submission that he had brought the Application without undue delay. That the Court of Appeal rendered its Judgement on 11th July 2025 and the present Application was filed on 18th March 2026. He relied on Wanjohi & another vs Njeri & another [2022] KEHC 3053 (KLR). It was the Applicant’s further submission that he was willing to deposit security as the court may order. 8.The Applicant submitted that he had demonstrated sufficient and good faith to be allowed to pay the decretal sum by way of instalments. He relied on Order 21 Rule 12(2) of the Civil Procedure Rules and Nicholas Gitonga Murongi vs Susan Wairimu & 4 others [2021] KEHC 8469 (KLR). The Applicant further submitted that the debt arose from a tortious claim for defamation and not a commercial transaction. That the award was a solatium for reputation and its settlement by way of instalments would not cause the Plaintiff irreparable loss. 9.It was the Applicant’s submission that he demonstrated good faith by paying the Plaintiff Kshs 1,000,000/= in partial satisfaction of the Decree and has made a commitment to settle the Decree through monthly instalments of Kshs 100,000/= until payment in full. 10.I have noted from the record that counsel for the Plaintiff/Respondent had made reference to the existence of a Replying Affidavit dated 9th April 2026. I have carefully gone through the record and the Case Tracking System (CTS) and as at the date of writing this Ruling, there was no Replying Affidavit on record. The Application as it were, was unopposed. 11.I have gone through and considered the Notice of Motion Application dated 18th March 2026 and the Applicant’s written submissions dated 16th April 2026. The sole issue for my determination was whether the Application had merit. 12.The Application was twofold; firstly, to determine whether the Applicant should be allowed to satisfy the decretal sum in instalments and secondly to determine whether the Applicant merited a stay order. Order 21 Rule 12 of the Civil Procedure Rules provided: -1.Where and in so far as a decree is for the payment of money, the court may for any sufficient reason at the time of passing the decree order that payment of the amount decreed shall be postponed or shall be made by instalments, with or without interest, notwithstanding anything contained in the contract under which the money is payable.(2)After passing of any such judgment or decree, the court may on the application of the judgment-debtor and with the consent of the decree-holder or without the consent of the decree-holder for sufficient cause shown, order that the payment of the amount decreed be postponed or be made by instalments on such terms as to the payment of interest, the attachment of the property of the judgment-debtor or the taking of security from him, or otherwise, as it thinks fit. 13.Order 22 Rule 22 of the Civil Procedure Rules provides: -(1)The court to which a decree has been sent for execution shall, upon sufficient cause being shown, stay the execution of such decree for a reasonable time to enable the judgment-debtor to apply to the court by which the decree was passed, or to any court having appellate jurisdiction in respect of the decree or the execution thereof, for an order to stay the execution, or for any other order relating to the decree or execution which might have been made by the court of first instance, or appellate court if execution has been issued thereby, or if application for execution has been made thereto.(2)Where the property or person of the judgment-debtor has been seized under an execution, the court which issued the execution may order the restitution of such property or the discharge of such person pending the results of the application.(3)Before making an order to stay execution or for the restitution of property or the discharge of the judgment-debtor the court may require such security from, or impose such conditions upon, the judgment-debtor as it thinks fit. 14.From the above provisions of the law, the Applicant/Judgement Debtor had to demonstrate sufficient cause as to why he merited the instalment orders. In Nicholas Gitonga Murongi v Susan Wairimu & 4 others [2021] KEHC 8469 (KLR), the court held: -“……….the case of Rajabali Alidina Vs Remtulla Alidina & Another [1961] EA 565 which the provides that in considering an application seeking to settle the decretal sum via installments the court should be guided by the following tests: -a.The circumstances under which the debt was contracted.b.The conduct of the debtorc.His financial position, andd.His bona-fides in offering to pay a fair proportion of the debt at once. 15.The Applicant stated that the balance of Kshs 2,500,000/= was a colossal amount to be paid at once and that he was under the imminent threat of execution. He further stated that he had demonstrated that he had good faith as he had partially satisfied the Decree to the tune of Kshs 1,000,000/=. He attached a Consent as “IC 2b” as proof of payment. I have looked at the Consent and I am satisfied that the amount was paid to the Plaintiff/Decree holder and further that he had demonstrated good faith in intending to satisfy the Decree. I also agree with the Applicant’s submission that the Decree was a solatium for reputation and that the Plaintiff would not suffer prejudice if the instalment order was given. Suffice to say, there was no objection from the Plaintiff. 16.On the issue of stay, the principles that relate to stay of execution orders are well settled. Order 42 Rule 6 of the Civil Procedure Rules stipulates: -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 orders 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 applicant unless the order is made and that the application has been made without unreasonable delay; andb)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. 17.Thus, under Order 42 Rule 6(2) of the Civil Procedure Rules, the Applicant should satisfy the court that: -i.Substantial loss may result to him unless the order of stay is granted.ii.That the Application has been made without unreasonable delay.iii.The Applicant gives such security as the court orders for the due performance of such Decree or order as may ultimately be binding to them. 18.Regarding the issue of substantial loss, the court in Jason Ngumba Kagu & 2 others v Intra Africa Assurance Co. Limited [2014] KEHC 2183 (KLR) held that: -“The possibility that substantial loss will occur if an order of stay of execution is not granted is the cornerstone of the jurisdiction of court in granting stay of execution pending appeal under Order 42 rule 6 of the Civil Procedure Rules. The Court arrives at a decision that substantial loss is likely to occur if stay is not made by performing a delicate balancing act between the right of the Respondent to the fruits of his judgment and the right of the Applicant on the prospects of his appeal. Even though many say that the test in the High court is not that of “the appeal will be rendered nugatory’’, the prospects of the Appellant to his appeal invariably entails that his appeal should not be rendered nugatory. The substantial loss, therefore, will occur if there is a possibility the appeal will be rendered nugatory. Here, it is not really a question of measuring the prospects of the appeal itself, but rather, whether by asking the Applicant to do what the judgment requires, he will become a pious explorer in the judicial process.” 19.The Applicant stated that he would suffer substantial loss unless execution was stayed. That the decretal amount was colossal and he was under imminent threat of execution. In my view, execution is a lawful process as aptly guided by the Court of Appeal in Machira t/a Machira & Co. Advocates vs East African Standard (No 2) (2002) KLR 63 where it held: -“No doubt, in law, 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 CPR. This is so because execution is a lawful process. The 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 ... the issue of substantial loss is the cornerstone of both jurisdictions. Substantial loss is what has to be prevented by preserving the status quo because such loss would render the appeal nugatory.” 20.The Applicant did not adduce any evidence or set out factual circumstances to demonstrate that they would suffer substantial loss if the execution was not stayed. He failed to discharge their burden of proof. 21.On the issue of unreasonable delay, the Court of Appeal delivered its Judgement on 11th July 2025 and the Applicant filed the present Application on 18th March 2026 which was an approximate period of eight months. In my view, there was a delay in filing the present Application and the delay has not been explained by the Applicant. It is therefore my finding that there was inordinate delay in filing the present Application. 22.Regarding security for the performance of the Decree, Gikonyo J in the persuasive case of Arun C Sharma v Ashana Raikundalia t/a A Raikundalia & Co Advocates & 2 others [2014] KEHC 2430 (KLR) 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.” 23.Under this head, the Applicant has indicated willingness to deposit security. 24.The three elements as envisaged in Order 42 Rule 6 of the Civil Procedure Rules that have to be satisfied before stay can be granted have to be proved conjunctively and not disjunctively. As shown above, the Applicants did not prove how they would suffer substantial loss and further failed to file the present Application timeously. 25.However, in the exercise of my discretion, it is my duty to balance the interest of both parties. Flowing from the above and in the interests of justice, I make the following orders: -i.The 1st Defendant/Applicant shall pay the Plaintiff/Respondent a sum of Kshs 300,000/= within 30 days of this Ruling.ii.There shall be a stay of execution of the Decree dated 10th August 2020 upon satisfaction of (i) above.iii.The Applicant is ordered to satisfy the remainder of the Decree through monthly instalments of Kshs 100,000/= until payment in full.iv.Failure by the Applicant to satisfy (i) and (iii) above shall void the stay order and the Plaintiff would be at liberty to execute.v.There are no orders as to costs. RULING DELIVERED, DATED AND SIGNED AT BOMET THIS 20TH DAY OF MAY, 2026..................................HON. JULIUS K. NG’ARNG’ARJUDGERuling delivered in the presence of:Mukundi for Kipkoech for the Plaintiff/RespondentMugumya for the Defendant/ApplicantSiele/Susan (Court Assistants)