https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4449

Mason Services Limited v Kengen Staff Retirement Benefits Scheme (Environment and Land Appeal E278 of 2025) [2026] KEELC 4449 (KLR) (13 July 2026) (Ruling) Neutral citation: [2026] KEELC 4449 (KLR) Republic of Kenya In the Environment and Land Court at Nairobi Environment and Land Appeal E278 of 2025 MN Kullow, J July 13, 2026 Between Mason Services Limited Appellant and Kengen Staff Retirement Benefits Scheme Respondent Ruling Introduction 1.The matter is coming up for determination of the Applicant’s Notice of motion application dated 24th February 2026 seeking the following ordersa.Spentb.Spentc.That, the Honourable Court be pleased to review its orders of 9th February 2026 by substituting the order for the deposit of the decretal sum, Kshs. 2,018,809.45/= in Court with an order for deposit of the original log book for motor vehicle KCB 355F, Range Rover Sport belonging to the Applicant in Court.d.That, the Honourable Court to grant any other order that the Honourable Court may deem fit and appropriate in the circumstances and in the interest of justicee.That the costs of the application be provided for. 2.The application was premised on grounds as in the supporting affidavit of Stephen Njoroge. He deponed that the court on the 9th February 2026 had granted the Appellant/Applicant stay orders on condition that they deposit Kshs. 2,018,809.45/= in Court or in a joint interest account in the names of the advocates within 15 days. That the applicant has been unable to raise the said amount within the 15 days however seeks to offer alternative security over and above the entire decretal sum in the form of a motor vehicle KCB 355F, Range Rover Sport in the name of the applicant whose valuation is in the sum of Ksh 7,000,000 and is willing to deposit the log book in court. 3.The Respondent opposed the application in a replying affidavit sworn on the 13th April 2026 by one Anthony Mangeli. He deponed that the court was functus officio having given its directions on the 9th February 2026 and cannot sit to review its orders. 4.He further deponed that the applicant had not produced any evidence to demonstrate efforts to acquire the security money and failed and hence unable to furnish the same and that further a motor vehicle is a depreciating asset and not suitable as a security. 5.The application was canvassed through written submissions with the applicant filing submissions dated 21st April 2026 whereas the Respondent filed submissions dated 6th May 2026. 6.Counsel for the applicant submitted that the right to seek for review was anchored on Order 45 Rule 1 of the Civil Procedure Rules, 2010 and that the said orders provided that an applicant must establish (a)discovery of a new and important matter which after the exercise of due diligence, was not within the knowledge of the applicant at the time the decree was passed or the order was made; or (b) there is a mistake or error apparent on the face of the record; or (c) for other sufficient reason; and (d) the application must be made without undue delay. Counsel argued that the applicant had demonstrated sufficient cause. The applicant submitted that having indicated its incapacity to offer security as money, the court should consider that as form of security as No prejudice is to be suffered by the Respondent as the alternative security is not of a lesser value but more than the value of the decretal sum. That further to counter the argument that the motor vehicle is not a proper form of security due to its depreciating nature counsel argued that the value being over three times the decretal amount, the depreciation of it cannot go any lower than the decretal amount at the time the appeal is heard placing reliance in the case ofJohn Mbaya Mucheke -Vs- Kaberia E Limuki, Felix Mutua Mailu, Equity Bank Limited E W Mwangi t/a Excellence A & Integrity Auctioners) [2020] KEHC 3084 (KLR and further the case of Sana Industries Limited v Violet [2025] KEELRC 2799 (KLR) 7.The Respondent in rebuttal submissions discredited the authorities relied on by the applicant pointing out that in both cases the issues were different being that the applicant had already deposited monies and sought to exchange the same. Counsel argued that no sufficient cause had been established by the applicant as it had not proved its incapacity to obtain the security in monetary terms. Analysis and determination 8.Having looked at the application, the responses thereto, the submissions and cited authorities, the issue for determination will be whether the application is merited 9.The law governing the grant of orders for a stay of execution pending appeal is codified under Order 42 Rule 6 (1) and 2 of the Civil Procedure Rules.Sub rule 2 reads;No order for a 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. 10.In this instant the court had already gone through the application for stay and granted the same conditional on the depositing of the security for due performance of the decree as in Order 42 rule 6(2) above. The court ordered the applicant to deposit the sum of Ksh 2,018,809.45/= within 15 days of the order and the applicant in filing the application is seeking to substitute the same with a log book of vehicle registration no KCB 355F, Range Rover Sport registered in the applicant’s name indicating they have been unable to raise the decretal sum. The Respondent had opposed the application on grounds that the averments have not been substantiated on lack on the part of the applicant and secondly a motor vehicle cannot be used to substitute security for rental arrears as the motor vehicle is a depreciating asset and further it can easily be moved as it will not be in the custody of the court . 11.The court is not functus officio as it has not made a final determination on the appeal and as such can entertain the application before it 12.The question before this court is whether the issue raised of financial constraints raised by the applicant can be considered to be ‘sufficient reasons.’ I will agree with the Respondent that the applicant has not substantiated their claim that they are is unable to pay the entire decretal sum through documentary evidence, books of accounts, bank statements or any other evidence. The burden of proof lies on the applicant to show the financial constraints which they have failed to discharge. 13.It is trite law that the purpose of an application for stay of execution is to preserve the subject matter but it should not be at the costs of the successful party who is being deprived from enjoying the fruits of its judgment as was held in the case of RWW -Vs- EKW [2019] eKLR, where the court held:“ The purpose of an application for stay of execution pending an appeal is to preserve the subject matter in dispute so that the rights of the appellant who is exercising the undoubted right of appeal are safeguarded and the appeal if successful, is not rendered nugatory. However, in doing so, the court should weigh this right against the success of a litigant who should not be deprived of the fruits of his/her judgment. The court is also called upon to ensure that no party suffers prejudice that cannot be compensated by an award of costs.The Respondent has relied in the case of Machira T/A Machira & Co Advocates -Vs- East African Standard (No. 2) [2002] KLR 63 which holding I do associate myself with. The court pronounced itself and indicated that a successful litigant must be allowed to enjoy the fruits of his judgement and be careful when addressing applications for stay of execution so as not to disregard the overriding objective of the rules of procedure for handling civil cases in courts, which is to do justice and to prevent abuse of the process of the court. 14.It is the court’s view as correctly stated by the Respondent that a motor vehicle cannot be used as a reliable form of security in a money decree. I do hold that even if the court was to admit the original logbook as security by the time the appeal is heard and determined if may not be of the same value, the vehicle which is in possession of the Applicants may be wasted, it can get into an accident and be completely damaged and in case of any of the scenarios arise and the appeal fails, it will not have any security to fall back to. Consequently, in absence of substantive proof of the financial constraints the court is inclined to dismiss the Applicants’ prayer for substitution. Final disposition 15.The upshot of the above is that I order as follows;i.The Notice of motion application dated 24th February 2026 lacks merit and is hereby dismissed.ii.Costs to the Respondent which shall be in the cause. It is so ordered. DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI ON THIS 13TH DAY OF JULY 2026. MOHAMMED N. KULLOWJUDGERuling delivered in the presence of: -Muigai for the Appellant/ApplicantMr. Abuga for the RespondentMs. Mwangi Court Assistant