https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12825

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT NAIROBI** **MILIMANI LAW COURTS** **COMMERCIAL AND TAX DIVISION** **COMM. APPEAL NO. E294 OF 2025** **BETWEEN** **ROSE MBITHE MULWA..........….…………………………………..1ST APPELLANT** **TORRENT LIMITED……………………….………………………..2ND APPELLANT** **AND** **DR. CAXTON MUNYOKI…………….…………………….……….RESPONDENT** **RULING** **Introduction & Background** 1. The Appellants, through the Notice of Motion dated 21st November 2025 seek to stay the execution of the subordinate court’s judgment delivered on 24th October 2025 in **Milimani CMCC No. 748 of 2019** where the Appellants were ordered to pay the Respondent Kshs. 4,732,000.00. The application is supported by the grounds on its face and the affidavits of the 1st Appellant sworn on 21st November 2025, 20th January 2026 and 30th January 2026. The Respondent opposes it through his replying affidavit sworn on 5th December 2025. The parties have also supplemented their arguments by filing written submissions which I have considered and I will be making relevant references to the same in my analysis and determination below. **Analysis and Determination** 1. The singular issue for determination is whether the Appellants have established a valid basis for this court to grant an order for stay of execution. As submitted by the parties, the legal framework for granting a stay of execution pending appeal is well settled under **Order 42 Rule 6** of the ***Civil Procedure Rules.*** The Appellants must demonstrate that they will suffer substantial loss if the order is not granted, that the application has been made without unreasonable delay; and that they are willing to provide such security as the court may order for the due performance of the decree. 2. These principles were enunciated in ***Butt v Rent Restriction Tribunal* [1979] KECA 22 (KLR)** where the Court of Appeal stated what ought to be considered in determining whether to grant or refuse stay of execution pending appeal. The court said that:- *1. 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.* *2. 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.* *3. 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.* *4. 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.* 1. The Appellants depone that they have a strong and arguable case on appeal with overwhelming chances of success and that if execution is allowed to proceed and the Respondent collects the decretal sum, the Appellants will suffer irreparable loss and their entire appeal will be rendered nugatory as they may not be able to recover the funds even if they win the appeal. They further state that the application was filed without undue delay. 2. In response, the Respondent states that the application is mischievous and devoid of any merit and does not meet the legal requirements for granting a stay of execution. The Respondent contends that the Appellants have failed to demonstrate the key legal requirements for a stay, including showing an arguable appeal or that they will suffer substantial loss. He depones that the case was a simple breach of contract for which the subordinate court awarded liquidated damages in his favor and in his view, this does not raise complex issues warranting a stay. The Respondent avers that he is a man of means and is financially capable of repaying the Kshs. 4,732,000 plus costs if the Appellants were to win the appeal and therefore, the appeal would not be rendered meaningless even if execution proceeds. He notes that the Appellants have not offered to deposit any security for the performance of the decree, which is a requirement when a stay is granted and that the Appellants will not suffer any substantial loss if the stay is denied. 3. Having gone through the pleadings and submissions, I do not think it is in dispute that the application was filed without unreasonable delay. Judgment was delivered on 24th October 2025, the subordinate court granted a 30-day stay expiring on 23rd November 2025 and this application was filed on 21st November 2025 before the stay expired which is clearly within time and without any delay. 4. On substantial loss, the Appellants stated that the decretal sum, which now stands at Kshs. 5,103,594,00 is substantial and colossal, the Respondent's financial means are unknown to them and they are apprehensive that the Respondent may not be able to refund the money if the appeal succeeds. I am in agreement with their submission that in **Kenya Orient Insurance Co Ltd v Paul Mathenge Gichuki & another [2014] KEHC 5311 (KLR)**, the court (Kasango J.,) held that the burden of proof that the Respondent can refund the decretal sum if the appeal succeeds, shifts to the Respondent the moment Appellant states that it is unaware of Respondent’s resources. This position was affirmed by the Court of Appeal in various decisions including **Kenya Commercial Bank Limited v Robert Kimutai Korir [2018] KECA 861 (KLR)** where it was held that “*Once an applicant has, on reasonable grounds, stated that a respondent has no ability to repay an amount of money in dispute or stated that the respondent’s financial status is unknown, the evidential burden shifts to the respondent to show that he is a person of means and that he would be in a position to refund the money if it is paid out to him and the appeal succeeds.”* 5. The Respondent only stated that he is a “man of means” but failed to demonstrate this by way of supporting documentation meaning he has not discharged his evidential burden. This leads me to conclude that the Appellants have made a reasonable case on substantial loss as the decretal sum is significant and the Respondent's failure to provide evidence of his financial standing weakens his position. 6. On security, the Appellants have not expressly offered security in their pleadings, however in their submissions, they state they are willing to comply with any such condition as may be determined by the Court. The Respondent submitted that the Appellants have failed to satisfy the condition of security but if f the court is inclined to grant a stay, it should be conditional on depositing the entire decretal sum in an escrow or joint account in the names of the advocates on record. 7. Since the Appellants are willing to abide by any conditions of the court and the Respondent is amenable to a stay on condition that the decretal sum is deposited with the parties’ advocates, I will grant the orders of stay as per the conditions below. **Disposition** 1. The Appellants shall within 30 (thirty) days from the date of this ruling deposit the sum of Kshs. 5,103,594.12 into an interest-earning joint account in the names of the advocates for both parties, or furnish a bank guarantee for the same amount from a reputable bank, failing which the stay shall lapse automatically and the Respondent shall be at liberty to execute. 2. Costs of this application shall be in the cause. **DATED SIGNED and DELIVERED virtually this 7th DAY OF AUGUST 2026** **............................................................................** **J.W.W. MONGARE** **JUDGE** **IN THE PRESENCE OF** 1. Mr. Oguye holding brief for Mr. Kimani for the Appellants/Applicant. 2. Ms. Murugi holding brief for Mr. Okulo for the Respondents. 3. Amos- Court Assistant