https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9202

Lemerketo v Ecobank Kenya Ltd & 2 others (Commercial Case E324 of 2022) [2026] KEHC 9202 (KLR) (Commercial and Tax) (25 June 2026) (Ruling) Neutral citation: [2026] KEHC 9202 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Commercial Courts) Commercial and Tax Commercial Case E324 of 2022 PM Mulwa, J June 25, 2026 Between Robert Lemerketo Plaintiff and Ecobank Kenya Limited 1st Defendant Kiwipay Kenya Limited 2nd Defendant and Central Bank Of Kenya Interested Party Ruling 1.This ruling determines the 1st Defendant’s application dated 19th August 2025 brought under Articles 48, 50, and 159 of the constitution, Sections 1A,1B, 3A and 63(e) of the Civil Procedure Act and Order 42 Rule 6 of the Civil Procedure Rules. The applicant seeks an order for stay of execution of the judgment and Decree delivered on 31st July 2025 pending the hearing of the Appeal. 2.The application is premised on the grounds on the face of the record and supported by the annexed affidavit of John Wambugu sworn on 19th August 2025. He depones that the 1st Defendant is dissatisfied with the judgment of this Court delivered on 31st July 2025, in which the Court found it liable in negligence for reputational and political injury allegedly suffered by the Plaintiff arising from the opening and operation of bank accounts numbers 668xxx3058, 668xxx3059 and 668xxx3078 in the name of the 2nd Defendant. 3.He avers that there is an imminent risk of execution and contends that unless a stay is granted, the Applicant will suffer substantial and irreparable loss. It is further deponed that the Plaintiff’s assets and financial means are unknown and that, should the decretal sum be paid out, recovery thereof may prove impossible in the event the appeal succeeds, thereby rendering the intended appeal nugatory. The Applicant maintains that its appeal is arguable and enjoys high prospects of success. 4.The application is opposed by the Plaintiff through a Replying Affidavit sworn on 1st September 2025. The Plaintiff contends that the Applicant has failed to demonstrate the substantial loss contemplated under Order 42 Rule 6 of the Civil Procedure Rules. He argues that the apprehension expressed by the Applicant is speculative and unsupported by evidence. 5.To rebut the Applicant’s fears, the Plaintiff deposes that he possesses sufficient means to refund the decretal sum in the event the intended appeal succeeds. In that regard, he discloses ownership of residential and commercial properties in Ongata Rongai, substantial livestock holdings in Samburu County, and an interest in the Sereolipi Conservancy. 6.The Plaintiff further gives an undertaking to refund the decretal sum together with any accrued interest should the appeal ultimately succeed. The Plaintiff also contends that the intended appeal lacks merit, maintaining that this Court properly found the Applicant negligent for opening and operating the impugned accounts without undertaking the requisite verification and due diligence. 7.The Plaintiff further avers that the Applicant is a well-capitalized commercial bank with assets exceeding Kshs. 100 billion and cannot therefore credibly contend that payment of the decretal sum of Kshs. 20,000,000/= would occasion substantial loss. According to the Plaintiff, the decretal sum represents only a negligible fraction of the Applicant’s asset base and the grant of a stay would merely serve to delay his enjoyment of the fruits of a lawful judgment 8.The application was heard by way of written submissions. The 1st Defendant’s filed undated submissions while the Plaintiff filed submissions dated 4th September 2025. Analysis and determination 9.I have considered the application, the affidavits on record, and the rival submissions filed by the parties. The sole issue for determination is whether the Applicant has satisfied the conditions for the grant of stay of execution pending appeal under Order 42 Rule 6 of the Civil Procedure Rules. 10.Order 42 Rule 6(2) of the Civil Procedure Rules provides that:“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; 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.” 11.The court has the discretionary power to grant an order for a stay of execution of a decree or order pending appeal and which discretion ought to be exercised judicially (see Butt v Rent Restriction Tribunal [1982] KLR 417). 12.Similarly, in Kenya Shell Ltd v Kibiru & Another [1986] KLR 410, the Court emphasized that substantial loss is the cornerstone of an application for stay of execution. Platt Ag. JA stated that:“Substantial loss in its various forms is the cornerstone of both jurisdictions for granting stay.” 13.There is no dispute that the impugned judgment was delivered on 31st July 2025 and the present application was filed on 19th August 2025. In the circumstances, I am satisfied that the application was brought timeously and without unreasonable delay. 14.The second consideration is whether the Applicant has demonstrated that it stands to suffer substantial loss if the stay is not granted. The Applicant's case is that the Plaintiff's assets and financial means are unknown and that, should the decretal sum of Kshs. 20,000,000/= be paid out, recovery thereof may be impossible if the intended appeal succeeds. 15.The law is that where an applicant expresses a reasonable apprehension that a respondent may not be able to refund the decretal sum, the evidential burden shifts to the respondent to demonstrate his means. (See National Industrial Credit Bank Ltd v Aquinas Francis Wasike & Another [2006] eKLR). 16.In the present case, the Plaintiff, however, has responded by setting out his assets, including residential and commercial properties, livestock holdings and interests in community conservancies. He has further expressly undertaken to refund the decretal sum together with accrued interest should the appeal succeed. 17.However, while the Plaintiff has disclosed the existence of the said assets, no documentary evidence has been exhibited to demonstrate ownership, value, or liquidity thereof. The Court is therefore unable, on the material before it, to conclusively determine the Respondent's financial ability to refund the entire decretal sum of Kshs. 20,000,000/= should the appeal ultimately succeed. 18.At the same time, the Court takes judicial notice that the Applicant is a licensed commercial bank with substantial financial resources. The decretal sum is unlikely to jeopardise its operations or financial stability. The Applicant's contention that it will suffer irreparable financial harm if compelled to satisfy the decree is therefore not entirely persuasive. 19.Nevertheless, the Court must also bear in mind that the purpose of an order for stay is to preserve the rights of both parties pending appeal and to ensure that no party suffers undue prejudice. 20.Having considered the competing interests of the parties, I am persuaded that this is an appropriate case for the grant of a conditional stay. Such an order would safeguard the Applicant's right of appeal while securing the Plaintiff's judgment. 21.As regards the arguability of the intended appeal, this Court need not determine whether the appeal will ultimately succeed. It is sufficient that the Applicant has filed a Notice of Appeal and expressed dissatisfaction with the judgment. The merits of the appeal are for the appellate court to determine. 22.In the exercise of my discretion, I find that the interests of justice would be best served by granting a stay on conditional terms. 23.Consequently, the Notice of Motion dated 19th August 2025 is allowed on the following terms:i.There shall be a stay of execution of the Judgment and Decree delivered on 31st July 2025 in HCCOMM E324 OF 2022 pending the hearing and determination of the intended appeal.ii.The Applicant shall, within forty-five (45) days from the date hereof, deposit the entire decretal sum of Kshs. 20,000,000/= in an interest-earning joint account in the names of the advocates for the parties in a reputable financial institution.iii.In default of compliance with order (ii) the stay order shall automatically lapse.iv.Costs of the application shall abide the outcome of the appeal.It is so ordered. RULING DELIVERED VIRTUALLY, DATED AND SIGNED AT NAIROBI THIS 25TH DAY OF JUNE 2026.PETER MULWAJUDGEIn the presence of:Ms. Ndegwa for Plaintiff/RespondentMr. Munene h/b for Mr. Mwangi for 1st Defendant/ApplicantCourt Assistant: Lispa