https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8002

Mbukoni Services of Ltd v Munyao & another (Suing as the legal administrator of Estate of the Late Silas Mwanzia) (Civil Case E104 of 2025) [2026] KEHC 8002 (KLR) (5 June 2026) (Ruling) Neutral citation: [2026] KEHC 8002 (KLR) Republic of Kenya In the High Court at Makueni Civil Case E104 of 2025 JN Onyiego, J June 5, 2026 Between Mbukoni Services Of Ltd Appellant and James Nzoka Munyao and Dorcus Kutumani Makiti (Suing as the legal administrator of Estate of The Late Silas Mwanzia) Respondent Ruling 1.Through a Notice of Motion dated 19-11-2025, brought pursuant to Article 159 of the Constitution, Orders 42 rule 6 and 51 rule 1 and Section 1A,1B, 3A and 63(e) of the Civil Procedure Rules, the applicant sought for orders;a.Spent.b.Leave be granted to the firm of Kitindio Musembi and Co. Advocates to come on record for the applicant and appellant.c.That pending the hearing and determination of this application inter partes, there be an interim order for stay of execution of the judgment and decree delivered on 16-10-2025 in Makindu SPMCC No. E 111 of 2022.d.That this honourable court be pleased to grant and/or extend stay of execution of judgment delivered on 16-10-2025 in Makindu SPMCC case No.E111 of 2022.e.That this honourable court be pleased to grant and/or extend stay of execution of judgment delivered on 16-10-2025 in Makindu SPMCC Case No.E111 of 2022 pending hearing and determination of Civil Appeal No.E104 of 2025 Mbukoni Services Limited Lmt vs James Nzoka Munyao and Dorcus Kutumani Makiti (Suing as the legal administrator of the estate of the late Silas Mwanzia).f.Any other relief the Honourable Court may deem fit.g.That costs be in the cause. 2.The application is anchored on the particulars set on its face and further supported by the affidavit sworn by Bernard Ktindio Musembi Counsel for the applicant/appellant on 19-11-2026 who averred that; he intended to come on record; the trial court had granted 30 days stay of execution pending filing of the intended appeal which has since lapsed with the appeal in place. Counsel deposed that the appeal raises arguable issues and has high chances of success. That the applicant is likely to suffer substantial loss if the orders sought are not granted. 3.It was further averred that the application herein and the appeal have been filed timeously well within the requisite period. 4.In response, the respondent filed a replying affidavit sworn on 10-12-2025 by James Nzoka Katumani, the applicant herein deposing that the applicant has not demonstrated the nature of substantial loss it is likely to suffer if the orders sought are not granted. That an appeal does not automatically operate as a stay of execution. He deponed that he is likely to suffer loss as life of his child was lost. He averred that, the applicant had failed to demonstrate that the respondents are of no means and therefore cannot be able to refund the decretal sum incase the appeal succeeds. 5.During the hearing, parties basically adopted the content contained in their respective affidavits. The applicant urged the court to allow the application as it was merited and that they were ready to deposit security. In response the respontent contended that the applicants have not met the conditions set by court which directed that they deposit half of the decretal sum. 6.I have considered the application herein, the response thereof and the oral submissions by both parties. The only issue is whether, the applicant has met the threshold for grant of stay orders. 7.To start with, the applicant sought for leave to come on record for the applicant an issue which was not necessary in the circumstances. 8.The law governing grant of stay of execution orders is succinctly captured under Order 42 rule 6 of the Civil Procedure Rules which provides as follows;“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.” 9.According to the above provision, the conditions which should guide the Court in determining whether to grant stay pending appeal are; whether the application has been filed without unreasonable delay; whether substantial loss will occur if stay is not granted and furnishing security for the due performance of the decree. 10.The impugned judgment was delivered on 16-10-2025 by the trial court which granted stay for 30 days. The appeal herein was filed on 14-11-2025 demonstrating that it was filed within the prescribed period of 30 days as per Section 79G of the Civil Procedure Act. Equally, the application herein was filed on 29-11-2025 translating to a delay of 43 days which in my view is not inordinate. 11.As for substantial loss, the applicant deposed that there is a threat of execution and that it will suffer loss and injustice if the same proceeds before the appeal is determined. It is trite and courts have severally held that the threat of execution does not amount to substantial loss as it is a process that is sanctioned by the law. In the persuasive case of Samvir Trustee Limited -vs- Guardian Bank Limited [2007] KEHC 2438 (KLR), the Court stated;“It is my humble view that for the applicant to obtain a stay of execution, it must satisfy this court that substantial loss would result if no stay is granted. It is not enough to merely put forward allegations or assertion of substantial loss, there must be empirical or documentary evidence to support such contention. It means the court will not consider mere assertions of substantial loss on the face value but the court in exercising its discretion would be guided by adequate and appropriate evidence of substantial loss.” 12.From the replying affidavit, the respondent has not demonstrated his ability to refund the decretal sum incase the appeal succeeds hence the likelihood that the applicant may suffer substantial loss if the appeal succeeds. See Antoine Ndiaye -vs- African Virtual University (2015) eKLR where the Court (Gikonyo J), stated;“The applicant must show he will be totally ruined in relation to the appeal if he pays over the decretal sum to the respondent. In other words, he will be reduced to a mere explorer in the judicial process if he does what the decree commands him to do without any prospects of recovering his money should the appeal succeed. Therefore, in a money decree, like is the case here, substantial loss lies in the inability of the respondent to refund the decretal sum should the appeal succeed. It matters not the amount involved as long as the respondent cannot pay back. The onus of proving substantial loss and in effect that the Respondent cannot repay the decretal sum if the appeal is successful lies with the applicant; follows after the long age legal adage that he who alleges must proof. Real and cogent evidence must be placed before the court to show that the respondent is not able to refund the decretal sum should the appeal succeed. It is not, therefore, enough for a party to just allege as is the case here that the respondent resides out of Kenya and his means is unknown.” 13.In the circumstances, there is prima facie good reason for the applicant to be apprehensive of the likelihood to suffer substantial loss. Indeed, courts should be cautious not to shut out litigants from exhausting their legal remedy. 14.The next issue is whether the appeal is arguable. In the instant case, the issue of 100% liability finding against the appellant is a critical subject of the appeal herein which raises an arguable appeal. It is trite that an arguable appeal need not be that which must succeed. 15.As for security, the applicant has expressed willingness to comply with directions of this court. The applicant is craving a chance to defend itself and that means that the entire decretal award is disputed. In the circumstances therefore, and in the interest of balancing the competing interests between the parties, I am of the view that the appellant should deposit the entire decretal amount in a joint interest earning account held in the names of both advocates on record within 30 days. 16.As to costs, the same shall be in the cause. DATED, SIGNED AND DELIVERED VIRTUALLY THIS 5TH DAY OF JUNE 2026………………………J. N. ONYIEGOJUDGE