https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12741

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT NAIROBI** **MILIMANI LAW COURTS** **CIVIL APPELLATE DIVISION** **CIVIL APPEAL NO. E1217 OF 2025** **DANIEL KINOTI MURIUKI.................................APPELLANT/APPLICANT** **VERSUS** **FRANCIS AUSTIN NJIRI.....................................................RESPONDENT** ***(Being an Appeal from the Ruling of the Senior Principal Magistrate's Court at Nairobi in CMCC No. 6999 of 2013 delivered on 11th November 2025 by Hon. Lucy Njora, SPM)*** **RULING** 1. This ruling is in respect to the Appellant/Applicant's Notice of Motion dated 18th November 2025 wherein the Applicant seeks, inter alia, orders for stay of execution of the ruling delivered on 11th November 2025, the ensuing decree, warrants of attachment dated 19th November 2025, and all consequential execution proceedings pending the hearing and determination of the appeal. 2. The application is brought under Order 22 Rule 52, Order 51 Rule 1 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 application is supported by the grounds set out on its face and the supporting affidavit sworn by the Applicant. 4. The Applicant contends that on 11th November 2025 the subordinate court delivered a ruling dismissing his application seeking to set aside an ex parte judgment. 5. He avers that the ruling effectively condemned him unheard and denied him an opportunity to defend the suit. 6. The Applicant further states that he has lodged an appeal which raises arguable issues with a high probability of success, particularly regarding alleged non-service of summons and the trial court's failure to consider evidence demonstrating such non-service. 7. According to the Applicant, unless a stay of execution is granted, the Respondent is likely to proceed with execution and auction his proclaimed property, thereby occasioning him substantial and irreparable loss. 8. The Applicant also maintains that the application was filed without unreasonable delay and that the interests of justice require preservation of the status quo pending determination of the appeal. 9. The Applicant further contends that the impugned ruling infringes his constitutional right to a fair hearing under Article 50 of the Constitution. 10. The Respondent opposed the application through Grounds of Opposition dated 4th February 2026 and written submissions dated 9th March 2026. 11. In the Grounds of Opposition dated 4th February 2026, the Respondent argues that: 12. ***The Applicant has failed to satisfy the requirements for grant of stay under Order 42 Rule 6 of the Civil Procedure Rules;*** 13. ***The Applicant has failed to demonstrate the substantial loss he is likely to suffer if the orders sought are not granted;*** 14. ***The application lacks merit, is untenable and ought to be dismissed with costs.*** 15. In the written submissions, counsel for the Respondent submitted that the legal principles governing stay of execution pending appeal, namely; demonstration of substantial loss, filing the application without unreasonable delay and provision of security for the due performance of the decree are well settled under Order 42 Rule 6(2) of the Civil Procedure Rules. 16. The Respondent submitted that the Applicant has failed to satisfy these conditions. Particular emphasis was placed on the issue of security. It was submitted that when the matter came up before the Court ex parte on 26th November 2025, interim orders were granted on condition that the Applicant deposits half of the decretal sum in court within twenty-one days. 17. It was submitted that more than three months have elapsed since issuance of those orders and yet the Applicant has failed to comply with the condition imposed by the Court. 18. The Respondent argued that such failure disentitles the Applicant from the discretionary relief sought. 19. The Respondent further submitted that this being a money decree, the Applicant was required to specifically demonstrate the substantial loss he would suffer if compelled to satisfy the decree. 20. Reliance is placed on the decision in ***Vishram Ravji Halai vs. Thornton & Turpin* [1990] KLR 365** for the proposition that stay pending appeal is governed by the conditions set out in Order 42 Rule 6 and that those requirements must be met before the court exercises its discretion. 21. The Respondent also relied on ***Singh vs. Runda Estates Ltd* [1960] EA 263** for the principle that stay of execution of a money decree ought not to issue merely because an appeal has been filed. 22. Further reliance was placed on ***Kenya Shell Ltd vs. Kibiru* [1986] KLR 410** where the Court held that an applicant must demonstrate the precise loss likely to be suffered if stay is not granted and that a mere assertion that the decretal amount is substantial is insufficient. **Analysis and Determination** 1. Having considered the pleadings and the Respondent's submissions, I find that the main issue for determination is whether the Applicant has satisfied the conditions for grant of stay of execution pending appeal under Order 42 Rule 6 of the Civil Procedure Rules. 2. Order 42 Rule 6(2) of the Civil Procedure Rules which provides that: ***No order for stay of execution shall be made 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 the decree or order as may ultimately be binding on him has been given by the applicant.*** 1. The conditions set out in the above provision are conjunctive and not alternative. An applicant must therefore satisfy all of the above conditions before the court can exercise its discretion in his favour. 2. Substantial loss has been held to be the cornerstone upon which an application for stay of execution rests. In ***Kenya Shell Ltd vs. Kibiru* [1986] KLR 410** the Court of Appeal observed that an applicant must demonstrate the actual loss likely to be suffered if execution proceeds. 3. In the present application, the Applicant merely states that the Respondent is poised to auction his proclaimed property and that he stands to suffer irreparable loss. Beyond this assertion, no evidence has been presented demonstrating the nature of the loss, the value of the proclaimed property, or why such loss would be irreparable. 4. Equally absent is any evidence suggesting that the Respondent would be incapable of refunding the decretal sum should the appeal ultimately succeed. 5. I therefore find that the Applicant has failed to demonstrate substantial loss as contemplated under Order 42 Rule 6(2). 6. On whether the application was filed without unreasonable delay, I note that the impugned ruling was delivered on 11th November 2025 and the present application was filed on 18th November 2025. 7. I am satisfied that the application was filed promptly and without unreasonable delay. 8. On whether security has been furnished, it is trite that the requirement for security is mandatory. 9. The record shows that upon hearing the application ex parte on 26th November 2025, this Court granted interim orders on condition that the Applicant deposits half of the decretal sum in court within twenty-one days. 10. The Respondent has submitted, and this has not been controverted, that the Applicant failed to comply with that condition. 11. No evidence has been placed before this Court showing that the required deposit was ever made. Indeed, the Applicant did not file submissions to address the issue or explain the non-compliance or at all. 12. Failure to comply with a condition imposed by the Court regarding security is a serious matter and demonstrates unwillingness to satisfy a mandatory requirement of Order 42 Rule 6(2)(b). 13. I therefore find that the Applicant has failed to furnish security as required by law. 14. I further find that even though the Applicant filed the application without delay, he has failed to establish substantial loss and has further failed to comply with the requirement relating to security. 15. Since the conditions under Order 42 Rule 6(2) are cumulative, failure to satisfy any one of them is fatal to the application. 16. In the present case, the Applicant has failed to satisfy two of the three mandatory requirements. 17. I therefore find no basis upon which the court’s discretion can properly be exercised in favour of the Applicant. 18. For the reasons that I have stated in this ruling, I find that the Notice of Motion dated 18th November 2025 is devoid of merit and I hereby dismiss it in the following terms: - 19. ***The interim orders of stay previously granted, if any, are hereby discharged.*** 20. ***The Respondent shall be at liberty to proceed with execution in accordance with the law.*** 21. ***The Applicant shall bear the costs of the application.*** It is so ordered. **DATED, SIGNED AND DELIVERED VIRTUALLY THIS 30TH DAY OF JULY 2026** **HON W A OKWANY** **JUDGE**