https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9605

**REPUBLIC OF KENYA** **IN THE HIGH COURT AT MAKUENI** **SMALL CLAIMS CIVIL APPEAL NO. E005 OF 2025** **WILFRED NDETO MUTISYA ALIAS WILFRED NDETO…….APPELLANT/APPLICANT** **-VERSUS-** **NAMUEL MWENDWA MUTUNGA…………….. ………….................RESPONDENT** ***(Being an appeal from the Judgment of Hon. O.A Nyandusi, RM, delivered on 18th July 2025 in the Small Claims Court at Makindu in SCCC E056/25)*** **RULING** 1. The application for determination is dated 15/04/2025 and was filed under Certificate of Urgency. It is brought under **Order 42 Rule 6 (1)** **of the Civil** **Procedure Rules** and seeks the following orders; 2. **Spent.** 3. **That this honorable court be pleased to stay the execution of the judgment dated 18/07/2025 and all consequential orders/decrees pending the hearing of this Application *inter-partes.*** 4. **That this honorable court be pleased to stay the execution of the judgment dated 18/07/2025 and all consequential orders/decrees pending the hearing of this Appeal.** 5. **THAT costs be provided for.** 6. The application is supported by the grounds on its face and the affidavit of Wilfred Ndeto Mutisya sworn on the same day. He deposed that judgment was made against him on 18-7-2025 despite having filed his defence, list of documents and witnesses’ statements. That, on the hearing date which was on 12-5-2025 her counsel who was unwell having undergone kneel surgery, instructed another counsel to hold his brief by seeking an adjournment. 1. That despite that application being made, the court declined and instead opted to proceed *ex parte* with the claimant testifying. That on 20-5-2025 when the matter came for further hearing, her counsel again through his colleague requested for adjournment on similar grounds but the same was rejected and the case proceeded *ex parte* until conclusion. 2. It was deposed that the learned magistrate did not consider his defence during the hearing of the main case and he is aggrieved hence this appeal which has high chances of success as he has a good defence. That, he is likely to suffer if orders of stay are not granted because the respondent has a decree (WNM6) and is preparing to execute against him. 3. The application is opposed through the respondent’s Replying Affidavit sworn on 15/08/2025 where he deposed that; the allegation by the appellant that he was not given an opportunity to prosecute his case is misconceived, misleading and a misrepresentation of facts. That, the appellant filed Memorandum of Appearance and Response to the claim and the matter was subsequently fixed for hearing on 12/05/2025 by consent of parties and the appellant was represented at all times. 4. It was averred that the record clearly shows that the appellant was well aware of the hearing date but failed/neglected to take appropriate steps to prosecute his matter despite being accorded a fair opportunity. That, the appellant applied to set aside the orders fixing the matter for hearing and the application was heard on merit and dismissed for want of sufficient grounds. He deposed that, litigation must come to an end and the appellant cannot be allowed to continuously clog the court process with repetitive, baseless and unmerited applications meant only to delay the expeditious disposal of this matter. 5. He stated that the application is a mere attempt to re-litigate issues already determined thus offending the doctrine of *res judicata* under **Section 7** **of the** **Civil Procedure Act**. He further deposed that the application does not meet the legal threshold for granting stay of execution orders as no substantial loss has been demonstrated and the contention that there is impending execution is based on assumptions. 6. That, the mere fact that execution has commenced does not necessarily amount to substantial loss as it is a lawful process. That, the appellant must have tendered empirical or cogent documentary evidence of substantial loss. 7. It was stated that; the Application does not raise triable issues; it is an afterthought meant to deny enjoyment of a regularly obtained judgment; it invokes the discretionary powers of the court which must be exercised judiciously and that granting the orders will occasion undue delay, defeat the overriding objective of the court and greatly prejudice the respondent. 8. That, in the event that the application is allowed, the appellant should be ordered to deposit the entire decretal sum in a joint interest earning account in the names of both Advocates. 9. The application was canvassed orally whereby the parties’ representatives reiterated the contents of their respective affidavits. 10. Having looked at the application, the responses and submissions, the only issue for determination is whether the Application is merited; 11. **Section 38** of the **Small Claims Court Act** provides that; **‘a person aggrieved by the decision or an order of the Court may appeal against that decision or order to the High Court on matters of law**.’ 12. **Order 42 Rule 6(1)** of the **Civil Procedure Rules** provides that; **“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.” (emphasis mine).** 1. It is therefore clear that a person aggrieved by a decision of the Small Claims Court has a right of appeal to the High Court and the High Court is at liberty to consider an application for stay from such a person. 2. According to **Order 42 Rule 6** of the **Civil Procedure Rules**, 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. 1. The above principles were espoused in the case of **Wangalwa & Another v Cheseto (Miscellaneous Application 42 of 2011) [2012] KEHC 1094 (KLR) (24 October 2012)** as follows; **“The granting of stay of execution pending appeal by the High Court is governed by Under Order 42 Rule 6 of the Civil Procedure Rules. It is grantable at the discretion of the court on sufficient cause being established by the applicant. The incidence of the legal burden of proof on matters which the applicant must prove lies with the Applicant. See the Halsbury’s Law of England, vol.17, paragraph 14:** **14. Incidence of the legal burden ……. in respect of a particular allegation, the burden lies upon the party for whom the substantiation of the particular allegation is an essential of his case.** **Sufficient cause being a technical as well as legal requirement will depend entirely on the Applicant satisfying the court that:** **a) Substantial loss may result to the applicant unless the order is made,** **b) The application has been made without unreasonable delay, and** **c) Such security as the court orders for the due performance of the decree order as may ultimately be binding on the applicant has been given by the applicant”.** 1. The impugned Judgment by the trial court was delivered on 18/07/2025 whereupon the Applicant was found 100% liable and damages awarded i.e., general damages Kshs. 120,000/=, special damages Kshs. 8,550/= and costs Kshs. 30,000/=. The Memorandum of Appeal was filed on 26/07/2025 hence evident that it was filed within the prescribed period of 30 days as per **Section 79G** of the **Civil Procedure Act.** The application herein was filed on 19/08/2025 hence evident that there was no delay in filing the same. 2. As for substantial loss, the applicant deposed that there is a threat of execution and that he 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. However, it is notable that there are four files in this series hence the total award of general damages is Kshs. 990,000/= which, in my view is quite substantial and the court does not have information on whether the respondents are able to refund the same if the appeal succeeds. The respondents did not file affidavits of means. Consequently, the recovery process will result in substantial loss for the applicant. 3. Further, I have looked at the record which shows that when the matter proceeded on 12/05/2025, Mr. Tamata was holding brief for Mr. Mutuku for the respondent. He informed the court that Mr. Mutuku was unwell as he had been involved in an accident in early March 2025. That, he was in the hospital and could not proceed. In declining the application for adjournment, the trial court noted that the matter was last in court on 22/04/2025 when Mr. Muli held brief for Mr. Mutuku and there was no mention of the said accident. 4. On 20/05/2025, Mr. Tamata was again holding brief for Mr. Mutuku and he informed the trial court that Mr. Mutuku was still unwell and that the notice was too short. In declining the application for adjournment, the trial court opined that the notice was not short in light of the requirement that small claims cases should proceed on a day-to-day basis. 5. Having looked at the Memorandum of Appeal and the application before the trial court where the applicant had attached his Advocate’s Medical Report, it is my considered view that the appeal raises triable issues which should be given a chance especially in light of the Constitutional right of legal representation. In the case of [**Delphis Bank Limited -vs- Channan Singh Chatthe & 6 Others**](https://new.kenyalaw.org/akn/ke/judgment/keca/2005/297) **(2005) 1 KLR 766,** the Court of Appeal acknowledged that it is the Constitutional right of a party to be represented by an Advocate of his choice. 6. Further, it is a Constitutional imperative under **Article 50** that the right to be heard cannot be taken away unless there are extremely good reasons to so withhold. See **Sabei District Administration v Gasyali & Others (1968) E.A 300** where it was affirmed that to deny a party the opportunity to be heard should be an action of last resort. The right to be heard, this Court observed, therefore ranks high up. This position was also well captured in **Mbaki & Others v Macharia & Snother (2005) EA 2006**. 7. In the circumstances of this case, I am persuaded that the appeal is arguable and failure to grant the order will render the appeal nugatory. 8. The applicant is craving a chance to defend himself and that means that the entire trial court decision is disputed. In the interest of balancing the competing interests between the parties, I am of the view that the appellant should deposit Kshs. 100,000/= as security in a joint interest earning account in the names of both Advocates on record within 30 days. Costs shall be in the cause. Dated, signed and delivered virtually this **3rd** day of **July 2026** …….................…….. J.N.ONYIEGO **JUDGE**