https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/13095

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT MERU** **CIVIL APPEAL NO. E093 OF 2026** **DK RONO, J** **16 JULY 2026** **BETWEEN** **HENRY MATI MUJURI.......................................................APPELLANT/APPLICANT** **AND** **JEREMIAH THEURI...................................................................................RESPONDENT** **RULING** 1. Before this Court is the Notice of Motion dated 3rd July 2026 by which the Appellant seeks an order of stay of execution of the judgment and decree delivered on 11th June 2026 pending the hearing and determination of the appeal. 2. The application invokes the jurisdiction of this Court under Order 42 Rule 6 of the Civil Procedure Rules, Sections 1A, 1B and 3A of the Civil Procedure Act and all other enabling provisions of the law. 3. The Applicant seeks principally: 4. An order staying execution of the judgment and decree delivered on 11th June 2026 pending the hearing and determination of the appeal. 5. Costs of the application. 6. The application is supported by the affidavit sworn by the Applicant wherein he depones, inter alia, that the intended appeal raises arguable issues of law and fact; that unless stay is granted execution is imminent; that the Respondent's financial ability to refund the decretal sum is unknown; and that the appeal may thereby be rendered nugatory. 7. The Applicant further deposes that the application was brought expeditiously and that he is prepared to furnish security by depositing the decretal amount in a joint interest-earning account operated in the names of counsel for the respective parties. 8. The Respondent opposes the application through a replying affidavit. He contends that the Applicant has failed to satisfy the mandatory requirements prescribed under Order 42 Rule 6(2) of the Civil Procedure Rules. 9. According to the Respondent, no evidence has been tendered demonstrating substantial loss, and the Applicant merely speculates that recovery of the decretal amount may become impossible. 10. The Respondent submits that such speculation falls far below the legal threshold established by the courts and urges that litigation must come to an end by allowing a successful litigant to enjoy the fruits of his judgment. 11. The Respondent further criticizes the Applicant's proposal regarding security, arguing that the suggested thirty-day period before depositing the decretal amount is unnecessarily dilatory and calculated to postpone satisfaction of the decree. 12. In the alternative, the Respondent urges that should the Court be inclined to grant stay, it should direct the Applicant to deposit the entire decretal sum of Kshs.1,540,651/= within fourteen days either into Court or into a joint interest-earning account, failing which the stay should automatically lapse. **Issues for determination** 1. Having considered the application, affidavits, submissions and authorities, it is my respectful view that only one substantive issue arises for determination: **Whether the Applicant has satisfied the legal threshold for the grant of an order of stay of execution pending appeal under Order 42 Rule 6(2) of the Civil Procedure Rules.** 1. That question necessarily calls for determination of three subsidiary questions: i. Whether the application was brought without unreasonable delay; ii. Whether the Applicant has demonstrated substantial loss; iii. Whether adequate security has been offered for the due performance of the decree. 1. The jurisdiction of this Court is founded upon Order 42 Rule 6(2) of the Civil Procedure Rules which provides: *"No order for stay of execution shall be made under subrule (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."* **(i) Whether the application was made without unreasonable delay** 1. In the present matter, the judgment sought to be stayed was delivered on 11th June 2026. The Applicant filed the present application on 3rd July 2026. The record further shows that the trial court had granted a temporary stay of execution for a period of thirty (30) days following delivery of judgment. 2. The application was therefore filed within the period during which the Applicant was entitled to seek appropriate orders from this Court. There is no evidence that the Applicant engaged in conduct intended to delay the Respondent's enjoyment of the decree or that he slept on his rights after delivery of judgment. 3. The Respondent has sought to characterize the Applicant's conduct, particularly the proposed timeline for provision of security, as a deliberate attempt to delay execution. However, the Court must distinguish between delay in filing an application and the terms upon which an applicant proposes to preserve the subject matter of an appeal. 4. The fact that parties may disagree on the appropriate conditions for stay does not, by itself, amount to unreasonable delay within the meaning of Order 42 Rule 6(2)(a).In the circumstances, I find that the application was made timeously and satisfies the first statutory requirement. **(ii) Whether the Applicant has demonstrated substantial loss** 1. The applicant must demonstrate that unless stay is granted, he will suffer a loss of such nature that the appeal, even if successful, will be rendered nugatory or the applicant will suffer an irreversible prejudice. 2. The importance of demonstrating substantial loss was explained by the Court of Appeal in **Kenya Shell Ltd v Benjamin Karuga Kibiru & Another [1986] KLR 410**, where Gachuhi JA stated: *"Substantial loss in its various forms, is the cornerstone 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."* 1. The Applicant's case is premised on the apprehension that should the decretal sum be released to the Respondent and the appeal subsequently succeeds, recovery of the amount may be difficult or impossible. The Applicant argues that the Respondent has not demonstrated his ability to refund the money. 2. The Respondent contests this position and submits that the Applicant has merely made a bare allegation without proof. According to the Respondent, the burden remained upon the Applicant to establish inability to refund and that such burden cannot be discharged through speculation. 3. The question therefore arises as to who bears the evidential burden where an applicant expresses apprehension regarding the respondent's ability to refund a decretal sum. 4. The Court of Appeal settled this question in **National Industrial Credit Bank Ltd v Aquinas Francis Wasike & Another [2006] eKLR**. The Court held: *"This Court has said before and it would bear repeating that while the legal duty is on an 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 the 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 shifts to the respondent to show what resources he has since that is a matter which is peculiarly within his knowledge."* 1. The principle emerging from the above decision is not that every assertion of inability to refund automatically entitles an applicant to stay. Rather, an applicant must raise a reasonable apprehension based on circumstances of the case. Once such apprehension is raised, fairness requires the decree holder, who possesses knowledge of his financial position, to demonstrate that restitution would not pose difficulty. 2. The Court appreciates that a decree holder is not required to prove his wealth every time a stay application is filed. Such an approach would unfairly burden successful litigants. However, where an appellant raises a genuine apprehension and the respondent elects not to provide any material to allay that concern, the Court must take that factor into account in determining whether execution should proceed. 3. The decretal sum herein is Kshs.1,540,651/=. While the amount may not be considered extraordinarily large in commercial terms, the Court cannot ignore that recovery of a monetary decree after successful appeal may involve additional litigation, delay and uncertainty. 4. The Court of Appeal in **James Wangalwa & Another v Agnes Naliaka Cheseto [2012] eKLR** observed: *"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 not the kind of substantial loss that would render the appeal nugatory. However, a party 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."* 1. In the circumstances of this case, the Court is satisfied that the Applicant has demonstrated a reasonable apprehension that recovery of the decretal sum may become difficult should the appeal succeed. The Respondent has not effectively rebutted that apprehension. Accordingly, I find that the Applicant has satisfied the requirement of substantial loss. **(iii) Whether security for due performance has been provided** 1. The third requirement under Order 42 Rule 6(2)(b) concerns security for the due performance of the decree. Security is not intended to be a punishment imposed upon an appellant merely because he has exercised his right of appeal. Rather, it is a mechanism through which the Court protects the legitimate interests of the decree holder during the pendency of an appeal. 2. In **Focin Motorcycle Co. Ltd v Ann Wambui Wangui & Another [2018] eKLR**, the Court stated:*"Where the applicant proposes to provide security, the Court has to balance the interests of the applicant who is exercising his right of appeal and the respondent who has a decree in his favour. The security must therefore be sufficient to safeguard the decree holder's interests."* 3. Similarly, in **Absalom Dova v Tarbo Transporters [2013] eKLR**, the Court observed that: *"The security must be one which ensures that the decree holder is not prejudiced by being deprived of the fruits of his judgment in the event the appeal does not succeed."* 1. In the present application, the Applicant has expressed willingness to deposit the decretal amount into a joint interest-earning account in the names of the advocates for both parties. 2. The Court agrees with the Respondent that security cannot remain a mere intention or promise. The purpose of requiring security is to ensure that the decree is preserved during the pendency of the appeal. An order for stay cannot therefore be granted on vague or uncertain terms. 3. However, the Court must also recognize that establishing a joint interest earning account between advocates may require administrative arrangements which cannot always be completed instantly. A reasonable period must therefore be allowed. 4. In the circumstances, the most appropriate order is one directing deposit of the entire decretal sum into a joint interest-earning account within a defined period. This will preserve the Respondent's entitlement while simultaneously protecting the Applicant's right of appeal. 5. Consequently, the Notice of Motion dated 3rd July 2026 is hereby allowed on the following terms: 6. There shall be a stay of execution of the judgment and decree delivered on 11th June 2026 pending the hearing and determination of **Civil Appeal No. E093 of 2026**. 7. The stay granted herein shall be conditional upon the Applicant depositing the entire decretal sum of **Kenya Shillings One Million Five Hundred Forty Thousand Six Hundred Fifty-One (Kshs.1,540,651/=)** into an interest-earning joint account in the names of the advocates for the Appellant and the Respondent within **twenty-one (21) days** from the date of this ruling. 8. In default of compliance with Order No. 2 above, the order of stay of execution shall automatically lapse without the necessity of any further order of this Court, and the Respondent shall be at liberty to proceed with execution. 9. The funds deposited in the joint interest-earning account shall remain preserved pending the hearing and determination of the appeal or further orders of this Court. 10. The costs of the application shall abide the outcome of the appeal. 11. Orders accordingly. **DATED, SIGNED AND DELIVERED AT MERU THIS 16th DAY OF JULY 2026.** **DK RONO** **JUDGE** Bottom of Form