https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5213

Kihara v Gituma t/a Dona Snacks & 2 others (Environment and Land Case 1190 of 2013) [2026] KEELC 5213 (KLR) (6 August 2026) (Ruling) Neutral citation: [2026] KEELC 5213 (KLR) Republic of Kenya In the Environment and Land Court at Nairobi Environment and Land Case 1190 of 2013 JG Kemei, J August 6, 2026 Between Michael Ngururi Kihara Plaintiff and Justus Gituma t/a Dona Snacks 1st Defendant John Mwangi Muhia 2nd Defendant Kenya Railways Workers Union 3rd Defendant Ruling [In respect of the 1st Defendant’s application dated 30/3/2026] 1.For determination before this Court is the 1st Defendant’s application dated 30/3/2026, brought under Sections 1A, 1B, 3A and 63 of the Civil Procedure Act, and under Order 42 Rule 6 (1) & (2) and Order 51 Rule 1 & 2 of the Civil Procedure Rules, 2010. The 1st Defendant prays for the following orders that;a.Pending the hearing and determination of the appeal Nairobi COACA/E087/2025 Justus Gituma T/a Dona Snacks Vs Michael Ngururi Kihara and 2 others, this Honourable Court be pleased to stay the execution of the judgment and decree delivered by the Honourable Justice M.D. Mwangi on 29/10/2024.b.Costs of this application be provided for. 2.The application is based on the grounds set out on the face of the application and further supported by the Affidavit of Justus Gituma, the 1st Defendant herein, of even date. The Applicant deposes that judgment was delivered on 29/10/2024 in favour of the Plaintiff for the sum of Kshs. 4,287,400, together with interest and costs. Following the judgment, the Plaintiff’s Party and Party Bill of Costs was taxed on 25/2/2026, resulting in an award of Kshs. 942,945. Subsequently, the Plaintiff issued a demand letter dated 11/3/2026 seeking payment of the cumulative sum of Kshs. 5,925,255, comprising the decretal amount, accrued interest and taxed costs. The Applicant, however, states that an appeal has since been lodged against the entire judgment in Nairobi Civil Appeal No. COACA/E087/2025 and contends that, although no order of stay of execution has yet been granted, the appeal raises arguable and triable issues warranting the Court’s intervention. 3.The Applicant further avers that, unless execution is stayed, the intended appeal will be rendered nugatory and the Applicant will suffer substantial and irreparable loss. It is asserted that the present application has been filed promptly and without undue delay. The Applicant avers that he is ready and willing to furnish security in the form of a bank guarantee for the full decretal sum of Kshs. 5,925,255 pending the hearing and determination of the appeal. On that basis, the Applicant urges the Court to exercise its discretion and order a stay of execution. It is argued that no prejudice will be caused to the Plaintiff if such orders are granted. 4.Vide the Replying Affidavit sworn on 14/4/2026, the Plaintiff contends that the application is misconceived, incompetent, and an abuse of the court process. The Plaintiff deposes that judgment was lawfully entered in its favour for Kshs. 4,287,400, together with interest and costs, and that the bill of costs was subsequently taxed at Kshs. 942,945. Following taxation, the Respondent's advocates issued a demand letter requiring payment of the decretal sum, interest, and costs amounting to Kshs. 5,925,255. The Applicant then belatedly filed the present application for a stay. It is asserted that the application was prompted solely by the demand for payment and was filed nearly two years after judgment, rendering it an afterthought and an inordinate delay. 5.The Respondent further avers that the Applicant has failed to satisfy the legal requirements for a stay of execution. It is maintained that the mere filing of an appeal does not automatically entitle a party to a stay, and that the Applicant has neither demonstrated substantial loss nor offered adequate security for the due performance of the decree. The Respondent characterises the Applicant's apprehension that the decree will be executed to its detriment as speculative and unfounded, while affirming that it possesses sufficient means to refund the decretal amount should the appeal ultimately succeed. Consequently, the Respondent contends that the intended appeal would not be rendered nugatory, particularly as the decree is monetary in nature. 6.The Respondent also asserts that the Applicant continues to benefit from the wrongful acts that gave rise to the suit, to the Plaintiff's prejudice, and that further delay in execution would unjustly deprive the successful litigant of the fruits of its judgment. It is urged that the balance of convenience and the interests of justice weigh against granting a stay, as the Respondent would suffer continued prejudice while the Applicant has failed to establish any lawful basis for the orders sought. Accordingly, the Plaintiff prays that the application be dismissed with costs and that execution of the decree proceed without further delay. 7.The court directed the parties to file their submissions, which they complied with. The 1st Defendant/Applicants' submissions are dated 8/6/2026, whereas the Plaintiff/Respondents' submissions are dated 12/6/2026. The court has read and duly considered the submissions in its analysis and determination. Analysis and determination 8.I have considered the applications, the rival affidavits thereto and the submissions filed in support thereof. I distil the following issues for determination:a.Whether the 1st Defendant has demonstrated that the orders of stay of execution pending appeal are merited.b.Who should bear the costs of the application? 9.It is trite law that an appeal does not automatically stay execution. The conditions a party must satisfy for the court to order a stay of execution are set out in Order 42 rule 6 of the Civil Procedure Rules. An applicant for an order staying execution of a decree or an order pending appeal is obliged under Order 42 rule 6(2) to satisfy the following conditions, namely:a.That substantial loss may result to the applicant unless the order is granted.b.That the application has been made without unreasonable delay, andc.That such security as the court orders for the due performance of such decree or order as may ultimately be binding on the applicant has been given. 10.These principles were enunciated in Butt vs Rent Restriction Tribunal [1979]. The Court of Appeal set out what ought to be considered when determining whether to grant or refuse a stay of execution pending appeal. The court said that:a.The power of the court to grant or refuse an application for a stay of execution is discretionary; and the discretion should be exercised in such a way as not to prevent an appeal.b.Secondly, the general principle in granting or refusing a stay is, if there is no other overwhelming hindrance, a stay must be granted so that an appeal may not be rendered nugatory should the appeal court reverse the judge’s discretion.c.Thirdly, a judge should not refuse a stay if there are good grounds for granting it merely because, in his opinion, a better remedy may become available to the applicant at the end of the proceedings.d.Finally, the Court in exercising its discretion whether to grant or refuse an application for stay will consider the special circumstances and its unique requirements. The court in exercising its powers under Order XLI Rule 4(2) (b) of the Civil Procedure Rules, can order security upon application by either party or on its own motion. Failure to put security of costs as ordered will cause the order for stay of execution to lapse. 11.Execution is a lawful process and does not, in itself, justify a stay of execution. The applicant must show that execution will irreparably affect him or will alter the status quo to his detriment, thereby rendering the appeal nugatory. With that in mind, I will proceed to assess each condition in light of the applicant’s assertions. 12.In Vishram Ravji Halai vs. Thornton & Turpin Civil Application No. Nai. 15 of 1990 [1990] KLR 365, the Court of Appeal held that whereas the Court of Appeal’s power to grant a stay pending appeal is unfettered, the High Court’s jurisdiction to do so under Order 41 rule 6 of the Civil Procedure Rules is fettered by three conditions namely, establishment of a sufficient cause, satisfaction of substantial loss and the furnishing of security. Further the application must be made without unreasonable delay. 13.On the first condition of substantial loss is, it was observed in James Wangalwa & Another vs. Agnes Naliaka Cheseto [2012] eKLR, that:“No doubt, in law, the fact that the process of execution has been put in motion, or is likely to be put in motion, by itself, does not amount to substantial loss. Even when execution has been levied and completed, that is to say, the attached properties have been sold, as is the case here, does not in itself amount to substantial loss under Order 42 Rule 6 of the CPR. This is so because execution is a lawful process. The applicant must establish other factors which show that the execution will create a state of affairs that will irreparably affect or negate the very essential core of the applicant as the successful party in the appeal ... the issue of substantial loss is the cornerstone of both jurisdictions. Substantial loss is what has to be prevented by preserving the status quo because such loss would render the appeal nugatory.” 14.I agree with the position held by Platt, Ag. JA (as he then was) in Kenya Shell Limited vs. Kibiru [1986] KLR 410, at page 41 expressed himself as follows:“It is usually a good rule to see if Order XLI Rule 4 of the Civil Procedure Rules can be substantiated. If there is no evidence of substantial loss to the applicant, it would be a rare case when an appeal would be rendered nugatory by some other event. Substantial loss in its various forms, is the corner stone of both jurisdictions for granting a stay. That is what has to be prevented. Therefore, without this evidence it is difficult to see why the respondents should be kept out of their money”. 15.According to the authority cited above, demonstrating that substantial loss is likely to be suffered is central to granting a stay pending appeal. Following the principle that he who alleges must prove, the onus of proving substantial loss rests on the party seeking the stay. It is thus not enough to allege that one stands to suffer substantial loss. The Applicant must show that she will be totally ruined in relation to the appeal if the stay is not granted. The Defendants were bound to place before the court real and cogent evidence showing that she stood at risk of suffering substantial loss, whether financially or otherwise, and therefore to grant the stay. 16.It is the Applicant’s submissions that, if the stay orders are denied, the Applicant will suffer substantial loss because the Plaintiff intends to execute the Judgment, and that the Plaintiff may not be able to refund the money if the appeal succeeds, thereby rendering the appeal nugatory. 17.In response, the Plaintiff asserts that no legitimate reason has been advanced for keeping him from the fruits of the Judgment, and that he is able to repay the decretal sum should the Appeal succeed. He submits that the Applicant has not rebutted that evidence. 18.It has been stated by the Courts that, whereas the Applicant bears the onus of proving that an Appeal in a monetary decree would be rendered nugatory by the Respondent’s inability to pay the decretal sum, where a reasonable fear has been raised, the burden shifts to the Respondent to prove their ability to do so. This position was stated by the Court of Appeal in National Industrial Credit Bank Ltd –vs- Aquinas Francis Wasike & Another [2006] eKLR, where the learned Judges opined as follows:“… while the legal duty is on the Applicant to prove the allegation that an appeal would be rendered nugatory because a Respondent would be unable to pay back the decretal sum, it is unreasonable to expect such an applicant to know in detail the resources owned by a Respondent or lack of them. Once an Applicant expresses a reasonable fear that a Respondent would be unable to pay back the decretal sum, the evidential burden must then shift to the Respondent to show what resources he has since that is a matter which is peculiarly within his knowledge.” 19.See also the case of Kenya Posts & Telecommunications Corporation vs. Paul Gachanga Ndarua [2001] eKLR where the Court of Appeal held as follows:“There is also the possibility that it may be affirmed in whole or in part. Whatever the position will be this Court has a duty to guard against the Corporation’s success in its intended appeal being rendered nugatory. The respondent has not fully answered the Corporation’s assertion that he has no known assets. The decree in his favour is for a whopping kshs.53, million odd. That by ordinary standards is a very large sum of money and it was incumbent upon the respondent to satisfactorily counter the Corporation’s assertion that he had no known assets by showing the basic assets he has which if need would arise, he would depend on to repay the decretal sum. Of course, ordinarily the burden was on the Corporation to show that were its appeal to succeed, the success would be rendered nugatory because the respondent would be unable to restore the decretal sum if that sum was immediately paid out to respondent immediately. But in a case such as this where it is alleged that the respondent has no known assets, the evidential burden must shift to him to show that he has assets from which he can refund the decretal sum. That must be so because the property a man has is a matter so peculiarly within his knowledge that an applicant such as the Corporation may not reasonably be expected to know them. He did not do so. An undertaking to give security by way of a bank or insurance bond is, in the circumstances of this matter, not sufficient.” 20.Whether there are reasonable grounds to believe that a Respondent will be unable to refund the decretal sum is a question of fact that depends on the facts of a particular case. In this case, the Applicant contends that the decretal sum is colossal and that the Respondent is unlikely to repay it. 21.Although the Plaintiff/Respondent herein stated that he is able to refund the sum, he did not provide evidence of his financial capacity, nor did he swear an affidavit of means. In the absence of such evidence, the Court finds that the Applicant is likely to suffer substantial loss if orders of stay are not granted. 22.Secondly, the applicant must demonstrate that the application for stay of execution was made without unreasonable delay. In the case of Jaber Mohsen Ali & Another –vs- Priscillah Boit & Another (2012) eKLR, the Court explained the concept of undue delay as follows: -“11.… The question that arises is whether this application has been filed after unreasonable delay. What is unreasonable delay is dependent on the surrounding circumstances of each case. Even one day after judgment could be unreasonable delay depending on the judgment of the court and any order given thereafter.” 23.The judgment in this suit was delivered on 19/10/2024, while the present application was filed on 31/3/2026. A period of 1 year and 5 months elapsed between the judgment and the filing of the present application. 24.Justice F. Gikonyo in the case of Mwangi S. Kimenyi –vs- Attorney General and Another (2014) eKLR correctly observed that what constitutes ‘inordinate delay’ is dependent on the particular circumstances of each case. He stated that:“There is no precise measure of what amounts to inordinate delay. Inordinate delay will differ from case to case depending on the circumstances of each case; the subject matter of the case; the nature of the case; the explanation given for the delay; and so on and so forth. Nevertheless, inordinate delay should not be difficult to ascertain once it occurs; the litmus test being that it should be an amount of delay which leads the court to an inescapable conclusion that it is inordinate and therefore, inexcusable. Caution is, however, advised for courts not to take the word ‘’inordinate’’ in its dictionary meaning, but to apply it in the sense of excessive as compared to normality…...see the case of Allen –vs- Alfred McAlphine & Sons [1968] 1 All ER 543 where a delay of fourteen (14) years was considered inordinate and inexcusable. But see also the cases of Agip (Kenya) Limited –vs- Highlands Tyres Limited [2001] KLR 630 and Sagoo –vs- Bahari [1990] KLR 456, where delay of eight months and five (5) months respectively was considered not to be inordinate and also ELC Case No. 2058 of 2007 where delay of about 1½ years was considered not to be inordinate.” 25.As noted in the cases above, the length of the delay and the reasons for non-compliance with the timelines are important factors in the exercise of the Court's discretion. Inordinate delay will vary from case to case, depending on the circumstances of each case. 26.In the circumstances of this case, the Applicant alleges that an appeal was filed and that the taxation proceedings are the cause of the delay in filing the instant application. 27.The right of appeal is a substantive right that should not be rendered illusory by events that may overtake the appeal before it is heard and determined. The Court has also considered the issue of delay. The Party and Party Bill dated 8/7/2025 was taxed on 25/2/2026. The Court notes that the Application was precipitated by the Ruling delivered on 25/2/2026 on the Party and Party Bill of Costs and the imminent execution that would ensue. In the circumstances, the Court does not find the delay to be so inordinate or inexcusable as to disentitle the Applicant from the relief. It is the Court’s finding that the Applicant has sufficiently explained the reasons for the delay and that the delay was not inordinate. 28.Thirdly, the condition is payment of security for the due performance of the decree. The requirement for security for the due performance of the decree under Order 42 Rule 6(1) of the Civil Procedure Rules is grounded in the principle that the winner of litigation should not be denied the opportunity to execute the decree and enjoy the fruits of their judgment if the appeal fails. 29.In the case of Aron C. Sharma vs. Ashana Raikundalia t/a Rairundalia & Co. Advocates & 2 others (2014) eKLR the court held that:“The purpose of the security needed under Order 42 is to guarantee the due performance of such decree or order as may ultimately be binding on the Applicant. It is not to punish the judgment debtor … Civil process is quite different because in civil process the judgment is like a debt hence the Applicants become and are judgment debtors in relation to the respondent. That is why any security given under Order 42 rule 6 of the Civil Procedure Rules acts as security for due performance of such decree or order as may ultimately be binding on the Applicants. I presume the security must be one which can serve that purpose.” 30.In the case of Focin Motorcycle C Ltd –vs- Ann Wambui Wangui [2018] eKLR it was stated that:“Where the applicant proposes to provide security as the Applicant has done, it is a mark of good faith that the application for stay is not just meant to deny the respondent the fruits of judgment. My view is that it is sufficient for the applicant to state that he is ready to provide security or to propose the kind of security but it is the discretion of the court to determine the security. The Applicant has offered to provide security and has therefore satisfied this ground of stay.” 31.The Defendant avers that it is ready and willing to comply with any terms the court may order regarding security. It is submitted that the Defendant is ready and willing to provide a bank guarantee as security for the stay pending appeal. 32.Security is discretionary, and it is for the court to determine the same. The Defendant having indicated that it is ready to provide a bank guarantee as security, it is for the court to set the terms of the guarantee. 33.The upshot is that the Applicant’s Notice of Motion dated 30/3/2026 is allowed as follows:a.A stay of execution of the Judgment delivered on 29/10/2024 is hereby issued pending the hearing and determination of the appeal is hereby granted on the following conditions:i.The Applicant does provide security for the sum of Kshs. 5,925,255/= in the form of either a bank guarantee or the said sum deposited in a joint account in the name of the parties’ Advocates within 30 days hereof.ii.That in default of (i) above, the orders for stay shall automatically lapse.b)Each party to bear his/her own costs. 34.It is so ordered DELIVERED, DATED AND SIGNED AT NAIROBI THIS 6TH DAY OF AUGUST 2026 VIA MICROSOFT TEAMS.J. G. KEMEIJUDGEDelivered virtually in the presence of:1. Ms Wangare h/b for Mr Kihara for the Plaintiff2. Ms Nabongo h/b for Ms Awuor for the 1st Defendant3. N/A for the 2nd and 3rd Defendants4. CA- Mr Amos