https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11332

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT NAKURU** **CIVIL APPEAL NO. HCCSCA E229 OF 2025** **LIZZIE NJOKI MACHARIA………….............................................1ST APPELLANT** **DOUGHLAS MWANGI......................................................................2ND APPELLANT** **VERSUS** **MARGARETE AKUTA EWOI.......................................................1ST RESPONDENT** **NATIONAL INDUSTRIAL** **CREDIT BANK LIMITED...............................................................2ND RESPONDENT** **METRO LOGISTICS LIMITED ......................................................3RD RESPONDENT** **RULING** 1. The Appellants/ Applicants moved this Court by an Application, Notice of motion dated 5th February, 2026, and expressed under Sections 1, 1A & 3A of the Civil Procedure Act (CAP 21) Order 22 Rule 22, Order 22, Order 42 Rule 4, 6 and 7, Order 50 Rule6 and Order 51 Rules 1 and 3 of of the Civil Procedure Rules 2010 seeking Orders;- 2. ***Spent.*** 3. ***Spent.*** 4. ***That this Honourable Court be pleased to issue orders of stay of execution of the Judgment and/or Decree delivered on 07/08/2025 and all consequential orders arising therefrom pending hearing and determination of the Appeal herein.*** 5. ***That this Honourable Court be pleased to order a stay of the proceedings in NAKURUCMC 774 of 2018 slated for 11th February 2026 pending hearing and determination of this application.*** 6. ***That this Honourable Court be pleased to order a stay of the proceedings in NAKURUCMC 774 of 2018 slated for 11th February 2026 pending hearing and determination of this Appeal.*** 7. ***That this Honourable Court be pleased to order that the entire decretal sum awarded by the trial court of Kshs. 725,300/= plus costs and interest be deposited in a joint interest-earning account in the name of both advocates pending hearing and determination of the Appeal herein.*** 8. ***The costs of this application be in the cause.*** 9. The application is based on the grounds on the face of the Notice of Motion and supported by the Affidavit sworn on the same date by the 1st Appellant, **Lizzie Njoki Macharia**. 10. She deposed that judgment was entered by the trial court in Nakuru CMCC No. 773 of 2018 as follows:- 11. ***Liability 100% against the Appellants;*** 12. ***General damages Kshs. 700,000/=;*** 13. ***Special damages of Kshs. 25,300/=;*** 14. ***Costs of the suit and interest at court rates together with a stay of execution of 30 days***. 15. The Appellants are apprehensive that the 1st Respondent will commence execution to the detriment of the Appellants. The Appellants further stated that their appeal has good chances of success and therefore, they will suffer substantial loss if the stay is not granted. They urge the Court to grant the orders sought to pave the way for the appeal. 16. In response, the 1st Respondent filed a Relying Affidavit which she wore on 27th April, 2026. She opposed the Application on the grounds that the application is incompetent as it has not met the threshold for granting a stay of execution and that there is no tenable appeal; hence, the application should be struck out with costs. 17. She stated that as a successful litigant who should be enjoying the fruits of her judgment, she will suffer great prejudice if the orders sought are granted. That conversely, the Appellants have not demonstrated that they will suffer any prejudice if the orders sought are not granted. 18. Arguing that she is a person of means and able to reimburse the Appellants should they succeed, she prayed that if the order is granted, it be on condition that the Applicants pay the Respondent 1/2 of the decretal sum plus costs and interest, and deposit the remaining 1/2 in an interest-earning account in both counsels' names and a reputable Bank within Nakuru. Otherwise, she prayed that the application be dismissed with costs to her. 19. In response to the Application, Mr Kisila Daniel Gor swore a Replying Affidavit on 20th July 2026, having been in conduct of the matter before the trial Court on behalf of the 2ndand 3rd Respondents in the primary suit and to the extent that it relates to the proceedings herein. 20. He deposed that the trial court held the Appellants 100% liable. That since it was the Appellants who dragged them into the matter as 3rd Parties, the trial court ordered that the Appellants pay the 2nd and 3rd Respondents' costs of the suit. 21. He further stated that upon that determination, they caused the costs due to the 2nd and 3rd Respondents herein to be certified by the court. That was done on 31st October, 2025 at Kshs. 131,295. 22. He therefore prayed that, in the event this Court grants a stay of execution, the 2nd and 3rd Respondents' certified costs be deposited alongside the decretal sum in an interest-earning account in the joint names of all parties. **Applicants’ submissions** 1. Regarding stay of proceedings, the Applicants submitted that the prayer has been overtaken by events as the judgment has already been delivered. 2. On substantial loss, the Applicants submitted that, in their Replying Affidavit, the Respondents have not disclosed or furnished evidence to prove their financial standing, yet the Applicants have clearly stated their apprehension that the Respondent may not be in a position to refund should the appeal succeed. 3. They argued that if a stay of execution is not granted pending appeal, their appeal will be rendered nugatory. In support, reliance was placed on the decision by F. Gikonyo, J in ***Omwerema & another v Namunyak Nkurrunah Advocate (Civil Appeal E002 of 2022) [2023] KEHC 22364 (KLR) (18 September 2023) (Ruling).*** 4. On delay, they submitted that the judgment was delivered on 7th August 2025 and they promptly moved this court vide this application; hence no delay. 5. On security for costs, they offered to have the entire decretal sum deposited in an interest-bearing joint earning account in the joint names of advocates for both parties. **1st Respondents submissions** 1. On delay, the Respondents submitted that the Applicant has not explained the delay in filing this appeal and therefore, they were indolent and should not enjoy discretion from this Court. 2. On substantial loss, reliance was placed on ***Joseph Gachie t/a Joska Metal Works vs Simon Ndeti Muema [2012] eKLR*** to submit that the Applicants have not demonstrated that the Respondents would not be in a position to refund the decretal sum should the appeal succeed. 3. They only alleged in their Affidavit and without supporting evidence and the source of information, that the Respondent is not a person of means to refund the said sum. 4. Further, it was submitted that this being a money decree, the Applicants have failed to demonstrate how they will suffer loss. 5. On security for due performance of the decree, it was submitted that the exhibited bank guarantee is valid for only 12 months and therefore not sufficient as it is unlikely that the appeal will have been determined before then. 6. In conclusion, it was submitted that the Applicants have failed to satisfy the conditions for stay. 7. That application is merely meant to delay the matter, thus denying the Respondent enjoyment of the fruits of her judgment, and therefore, the application should be dismissed with costs. However, if the Court be inclined to grant a stay, then it be on condition that the Applicants pay the Respondent 1/2 of the decretal sum plus costs and interest, and deposit the remaining 1/2 in an interest-earning account in both counsels' names and a reputable Bank in Nakuru. **Analysis and Determination** 1. Having considered the application, Affidavits in support and in opposition thereto, submissions and the case law cited herein, the only issue for determination is whether the prayer for stay of execution pending Appeal should issue. Order 42 Rule 6 (2) of the Civil Procedure Rules, 2010 provides that:- ***“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 order 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; 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.”*** 1. It therefore follows that no appeal or second appeal will operate as a stay. A party must show sufficient reasons why stay orders should be granted as held in ***Vishram Ravji Halai vs. Thornton & Turpin Civil Application No. Nairobi 15 of 1990 [1990] KLR 365.*** 2. An application for a stay of execution aims to preserve the subject matter, ensuring a successful appellant’s victory is not rendered meaningless. In exercising this discretion, the Court must balance the appellants’ rights against the Respondent’s entitlement to the benefits of her judgment. The applicants must therefore satisfy the conditions for the grant of a stay ending the appeal. 3. On delay, the judgment in the trial court was delivered on 7th August, 2025. A 30-day stay was granted by the trial court. This Application was filed on 6th April 2026, which is about seven months later. There is no explanation whatsoever as to the reason for that delay, which is actually inordinate. 4. On substantial loss, this is a money decree. Loss in a money decree is generally only established if the Respondent is shown to be unable to repay the sum or if the payment would cause extreme financial hardship to the Applicant. 5. The Applicants have made mere assertions of loss without providing evidence of financial prejudice. It is not sufficient for the Applicants to merely state that they would suffer, as the Respondent may not be in a position to refund the money. It has not been stated why they believe that the 1st Respondent is a person of straw. 6. Consequently, this Court finds that with the Applicant’s failure to satisfy the two conditions above, the issue of security for due performance is not necessary, even if offered by the Applicants herein. 7. In conclusion, the Application dated 5th February 2026 lacks merit and is therefore dismissed with costs. **Dated and signed at Nairobi this 16th Day of July, 2026.** **PATRICIA GICHOHI** **JUDGE** **Delivered at Nakuru this 27th Day of July, 2026.** **……………………….......................** **DR. JOSEPH SERGON** **JUDGE**