https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9862

Matungulu Girls Secondary School & another v Ndunda (Civil Appeal E238 of 2024) [2026] KEHC 9862 (KLR) (25 June 2026) (Ruling) Neutral citation: [2026] KEHC 9862 (KLR) Republic of Kenya In the High Court at Machakos Civil Appeal E238 of 2024 AN Ongeri, J June 25, 2026 Between Matungulu Girls Secondary School 1st Appellant Philip Kilonzo Kinyowe 2nd Appellant and Alice Kelekye Ndunda Respondent Ruling 1.The Appellants, Matungulu Girls’ Secondary School and Philip Kilonzo Kinyowe filed an application dated 26/11/2024 at the High Court in Machakos. 2.The application is brought under Sections 1A, 1B, 3A, and 63(e) of the Civil Procedure Act, Cap 21, as well as Order 22 Rule 22, Order 42 Rule 8, and Order 51 Rules 1 and 3 of the Civil Procedure Rules, together with all other enabling provisions of the law. 3.The Appellants were seeking the following orders;i.That the application be certified as urgent in the first instance(SPENT).ii.That the court grants a stay of execution of the judgment delivered on 29th October 2024 the Principal Magistrate at Kang’undo Law Courts in CMCC No. 232 of 2010.iii.That pending the hearing and determination of the application inter-parties, and ultimately the hearing and determination of their appeal, the court grants them a stay of execution. 4.The application is based on the ground that the trial court awarded the Respondent general damages of Ksh. 1,500,000 and special damages of Ksh. 31,000, and granted a 30‑day stay of execution. 5.Being dissatisfied with the judgment on quantum, the Appellants have lodged an appeal through a Memorandum of Appeal dated 12th November 2024. 6.They fear that unless a stay is granted, the Respondent will commence execution proceedings, which will render their appeal nugatory and cause them irreparable loss and damage. 7.Further, that their appeal is merited and has an overwhelming chance of success. 8.The applicant prayed that the costs of the application be in the cause. 9.The application is supported by an affidavit sworn by Juliannah Nduni, the current Principal of Matungulu Girls’ Secondary School and Secretary to the Board of Management. 10.She confirms that the Respondent filed the suit on 6th December 2010, that judgment was delivered on 29th October 2024 awarding the said amounts. 11.Further, that they have instructed the State Counsel to lodge an appeal. 12.She attaches a copy of the Memorandum of Appeal and a letter requesting certified proceedings and judgment from the lower court. 13.She reiterates that the appeal is merited and has good chances of success, and that unless a stay is granted, the Respondent will execute the judgment, causing the Appellants irreparable loss and damage and rendering the appeal nugatory. 14.She also deposed that it is in the interest of justice that the application be allowed. 15.The respondent opposed the application through filing of grounds of opposition in which she stated that the applicant’s application should be dismissed because it is frivolous, incompetent, vexatious, bad in law, incurably defective, and an abuse of the court process. 16.The respondent also contends that the application is an afterthought brought in bad faith and after an inordinate delay, without any good reasons provided by the applicant to justify granting it. 17.Furthermore, the respondent claims that the applicant has not offered meaningful security for costs as required by law. 18.On the other hand, the respondent asserts that she is a person of means, specifically a farmer, who would be able to refund any costs if the appeal were successful. 19.Finally, the respondent maintains that the application is misconceived and improperly before the court, and therefore prays for its dismissal with costs. 20.The appellant/applicant submitted that they are seeking a stay of execution of a judgment delivered on 29th October 2024 by the Chief Magistrate’s Court at Kang’undo. 21.The judgment requires the appellants to pay a decretal sum of Kshs. 765,500 to the respondent, Alice Kalkeye Ndunda. 22.The appellants argue that unless the stay is granted, they will suffer substantial loss because the respondent’s source of income is unknown, and there is a real risk that she would be unable to refund the money if the appeal succeeds. 23.The appellants note that the respondent has not filed an affidavit of means to demonstrate her ability to repay the decretal sum. 24.Relying on case law, the appellants submit that once they express a genuine fear about the respondent’s ability to repay, the evidential burden shifts to the respondent to prove her financial resources. 25.On the issue of security for costs, the appellants submit that they are unable to deposit the decretal sum because the first appellant is a public school dependent on government capitation, which is already strained. 26.The appellants urge the court to exercise its discretion, noting that any payment ultimately due would be made by the government, against whom execution can only issue with court authorization. 27.The appellants cite a previous decision involving a public school where the court waived security due to similar special circumstances. 28.The application was filed less than thirty days after the judgment, and the appellants argue there has been no undue delay, relying on a case where a two-month delay was still considered reasonable. 29.The appellants conclude by asking the court to allow the application and permit them to proceed with the appeal, with costs to be in the cause. 30.The Plaintiff/Respondent opposes the Applicant’s motion dated 26th November 2024 seeking a stay of execution pending appeal. 31.The Respondent relies entirely on the grounds of opposition filed on 17th December 2024. 32.The Respondent argues that the Applicant has given no good or convincing reasons to warrant the grant of a stay. 33.The Applicant has not offered any security for costs as required by law. 34.If the court is inclined to grant the stay, the Respondent requests that the Applicant be ordered to release half of the decretal sum (Kshs. 765,500) to the Respondent. 35.The remaining half of the decretal sum (Kshs. 765,500) should be deposited into a court account within thirty days from the date of the ruling. 36.This condition would demonstrate the Applicant’s seriousness and protect the interests of both parties. 37.The Respondent cites several authorities in support including Benjamin Muisyo Kimailie v. Everlyn Nduongwa Muthama, Ainushamsi Multiple Hauliers Agencies Limited v. Francis Ndengwa, Victor Mwania Robert v. Agnes Wambui Koigi, and Peter Kioko v. Elizabeth Wanza Musyoki. 38.The Respondent prays that the application dated 26th November 2024 be dismissed with costs to the Respondent for lacking merit. 39.The issues for determination in this application are as follows;i.Whether the applicants have demonstrated that they will suffer substantial loss unless a stay of execution is granted,ii.Whether the application was brought without inordinate delay, andiii.Whether the applicants have provided or should be required to provide security for the due performance of the decree as a condition for the stay. 40.Under Order 42 Rule 6 of the Civil Procedure Rules, the court’s power to grant a stay of execution is discretionary but must be exercised upon the satisfaction of specific criteria. 41.The first hurdle is the demonstration of substantial loss. 42.The essence of a stay of execution is to ensure that the appeal, if successful, is not rendered nugatory. 43.The applicants express a genuine apprehension that the respondent, whose financial status is described vaguely as a farmer without a supporting affidavit of means, may not be able to refund the decretal sum of Kshs. 1,500,000 plus costs if the appeal succeeds. 44.Substantial loss does not necessarily mean the applicant is insolvent, but rather that the "fruit of the appeal" would be irrecoverable. 45.Given the respondent's failure to demonstrate a concrete ability to restitute the funds, I find that the risk of substantial loss is real and well-founded. 46.Regarding the timing of the application, the judgment was delivered on October 29, 2024, and the application for stay was filed on November 26, 2024. 47.This is well within a reasonable timeframe and does not constitute inordinate delay. 48.The promptness of an application is a key factor in exercising judicial discretion in favor of a stay. 49.The most contentious issue is the provision of security for the due performance of the decree. 50.Generally, Order 42 Rule 6(2)(b) requires that security as the court orders be given. However, this is not an inflexible rule where special circumstances exist. 51.The first applicant is a public secondary school, an entity funded by the government through capitation, which is intended for the education of students rather than the settlement of litigation debts. 52.To compel a public school to deposit a large decretal sum could paralyze its core educational functions. 53.Where the judgment debtor is a public or government-funded body, the assurance of payment by the state acts as sufficient security in itself. 54.Furthermore, it is in the interest of justice that the courts waive the requirement for security for public schools to protect the public interest and the right to education. 55.Consequently, while the respondent argues for a deposit of the decretal sum or a partial release of funds, the unique status of the school as a capitation-dependent public institution constitutes a special circumstance that warrants a departure from the standard requirement of security. 56.The interest of justice is best served by allowing the appeal to be heard on its merits while preserving the school’s operational funds, especially since the government is ultimately the guarantor of such liabilities. 57.Accordingly, the application dated November 26, 2024, is hereby allowed. A stay of execution of the judgment and decree in CMCC No. 232 of 2010 is granted pending the hearing and determination of the appeal. 58.In view of the special circumstances surrounding the first applicant's status as a public school, the requirement for security for the due performance of the decree is hereby waived. 59.The applicants are directed to prosecute the appeal expeditiously to ensure the respondent is not unduly prejudiced by the delay. 60.Costs of this application shall abide the outcome of the appeal. 61.Orders to issue accordingly. DATED, SIGNED AND DELIVERED AT NAIROBI THIS 25TH DAY OF JUNE 2026.ASENATH N. ONGERI.JUDGEIn the presence ofNo appearance for AppellantMiss Omari holding brief Mutunga for the RespondentChrispine - Court Assistant