https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7317

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA** **AT ELDORET** **CIVIL APPEAL No. E047 OF 2026** **GIDEON MWAITA……………………..1ST APPELLANT/APPLICANT** **FINETOUCH AFRICA LIMITED………2ND APPELLANT/APPLICANT** **VERSUS** **SARAH KAGEA WAMALWA &** **DICKSON MALOBA (Suing as** **the personal representative of** **LUCY MUHADI - DECEASED)…….………………………..DEFENDANT** **RULING** 1. By way of Notice of Motion dated 24th March 2026, the Applicant seeks the following orders; 2. **Spent** 3. **Spent** 4. **That there be a temporary stay of execution of the judgment and decree of Kshs. 5,969,950/= in Eldoret CMCC No. E210 of 2025 the hearing and determination of ELDORET HIGH COURT CIVIL APPEAL NO. E047 OF 2026.** 5. **That this Honourable Court allow the Appellant/Applicant to pay Kshs. 1,000,000/- or deposit the sum of Kshs. 1,000,000/- in a joint interest earning account in the names of both advocates on record.** 6. **That the costs of this Application be provided for.** 7. The Application is expressed to be brought under Section 3A of the Civil Procedure Act, Order 42 Rule 6 (2), Order 51 Rule 1 of the Civil Procedure Rules, 2010 and all other enabling provisions of the Law. 8. The Application is premised on the grounds on the face of it and the averments of the Applicant in his affidavit in support of the Application. 9. In his affidavit, the Appellant deponed that he is the owner Motor vehicle registration number KBZ 135X which vehicle formed the subject matter of the instant suit and further, that judgment was delivered on 26th February, 2026 by Hon. Keyne Gweno in the following terms; 10. **Liability 100%** 11. **Pain and suffering Kshs. 50,000/-** 12. **Loss of expectation of life Kshs. 100,000/-** 13. **Loss of dependency Kshs. 5,600,000/-** 14. **Special damages Kshs. 219,950/-** **Total** **Kshs. 5,969,950/-** 1. **Costs and Interests of the suit.** 2. He urged that, being dissatisfied with the Judgment, he instructed his Advocates on record to lodge an appeal against the entire judgement. He further deponed that the orders of stay would soon lapse and the Respondent is likely to execute the decree to the detriment of the Applicant whereas an Appeal has been lodged against the Judgment. He Annexed and marked as "GM- 1" and "GM -2" a copy of the Memorandum of Appeal dated 23rd March, 2026 and a copy of Judgment. 3. The deponent averred that the Respondent's financial ability is unknown, and the Judgment amount being a substantial amount, the Respondent is unlikely to refund the decretal sum if paid to her and the Appeal succeeds. He urged that the Applicant stands to suffer substantial loss and the Appeal faces the risk of being rendered nugatory. He maintained that it is in the interests of justice that the orders of stay be granted so as to safeguard the interests of the parties. Additionally, he stated that the Respondent interests will be safeguarded by depositing Kshs. 1,000,000/- in a joint interest earning account in the names of both advocates on record and the appeal will not be rendered nugatory. 4. The deponent averred that the Application has been made in good faith, without undue delay and in the interests of justice. He prayed the court allow the same. 5. The Respondents filed a replying affidavit dated 31st March 2026, sworn by Sarah Kagea Wamalwa, one of the respondents. She deponed that the application was an afterthought, lacked merit and ought to be dismissed with costs in the first instance. Further, that the application is meant to derail this matter, waste judicial time and deny her enjoyment of the fruits of judgment. 6. The deponent averred that the application does not meet the threshold stipulated under Order 42 Rule 6 of the Civil Procedure Rules and the orders sought should not be granted. Further, that the application is mischievous since no such application was placed before the trial Court for determination and reasons for such failure have not been advanced by the Applicant. She further stated that the appellants have not demonstrated, with clarity and precision, that they have an arguable appeal. 7. In response to paragraph 5 of the supporting affidavit, she urged that the appellants have not demonstrated that the Respondents will be unable to refund the decretal sum should the appeal succeed and, that they have also failed to demonstrate that the appeal will be rendered nugatory if the orders sought are not granted. 8. She reiterated that, as the successful parties in the case, they are entitled to enjoy fruits of judgment and, the Court should direct the Defendant to at least settle whole or part of the decretal sum. She urged that the deceased’s estate will be greatly prejudiced if the Judgement and decree are stayed since she lost her daughter as a result of a road traffic accident which formed part of the subject matter of the lower Court case, and she needs this current matter concluded expeditiously to enable them find closure. 9. The deponent averred that in the event the court is inclined to allow the Application, she prayed that the Court gives conditional stay of execution to the effect that half of the decretal sum shall be deposited in a joint interest earning account pending the outcome of their appeal, while the other half of the decretal sum together with assessed costs as per the certificate of cost be paid to the Respondents. Further, that the proposal by the Applicants to make a deposit of Kshs.1,000,000/= only is too low noting that the decretal sum is Kshs. 5, 969, 950/= and thus the proposed sum will not suffice as security for due performance of decree. 10. She urged that if the Court allows the Applicant to make the proposed deposit, that will amount to pre-determining the appeal prematurely against the principles of fair hearing. She further deponed that the Court should safeguard the interests of both parties while making its determination and the orders issued should factor in the entire decretal sum of Kshs.5, 969, 950/= together with awarded costs of Kshs.279, 649/=. 11. The deponent averred that the Applicant has not demonstrated that he is not in the financial position to deposit the entire decretal sum in a joint interest earning account to be held by both advocates on record or pay to the Respondent half the decretal sum and deposit half. Further, that no prejudice will be occasioned to the Appellants if the Court directs as prayed for reasons that the Dependants of the deceased are entitled to at least access half the awarded decretal sum to sustain themselves as they wait for the outcome of the appeal in place. 12. The deponent deponed that she has assets such as land and she is able to refund the decretal sum in the unlikely event the appeal is determined in favour of the Applicant. She urged that the Appellant has clearly approached this Court with unclean hands by failing to seek orders of stay in the trial Court and further, there is no demonstration that the Applicant will be prejudiced in any manner if the orders sought are not granted. 13. She stated that the court, in exercising its unfettered discretion, may give timelines within which the Defendant should file and serve its record of appeal to enable fast tracking of the appeal. **Respondents Submissions** 1. Counsel for the respondent opposed the application, urging that the Applicant has not satisfied the conditions for grant of a prayer for stay of execution pending appeal as per Order 42 Rule 6 of the Civil Procedure Rules. He cited the case of Antoine Ndiaye v African Virtual University [2015] KEHC 6783 (KLR), and reproduced the provisions of Order 42 Rule 6 (1) and (2) of the Civil Procedure Rules, urging that the conditions before a prayer for stay is granted is that the court must be satisfied that substantial loss may result to the applicant unless the order is made and that the application has been made without delay. Further, that there has to be security for the due performance of the decree. 1. On substantial loss, Counsel submitted that it is what has to be prevented by preserving the status quo because such loss would render the appeal nugatory. That the 1st Applicant stated that they will suffer substantial loss if the orders sought are not granted but has not stated with clarity what amounts to substantial loss on their end. That from the contents of the supporting affidavit, it is clear that there will be no prejudice or substantial loss that will be occasioned to the Applicants since none has been demonstrated. Having failed to demonstrate with precision what substantial loss the Applicants will suffer, it thus follows that this instant application must fail. He cited the case of James Wangalwa & Another v Agnes Naliaka Cheseto [2012] KEHC 1094 (KLR) in support of this submission. 2. Counsel submitted that the Court went further to state that 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. He additionally placed reliance on the case of Kenya Shell Ltd v Kibiru & Another [1986] KLR 410 [1986] KECA 94 (KLR) on evidence of substantial. 3. Counsel pointed out that the Applicant has also highlighted that the Respondents financial ability is unknown and they are unlikely to refund the decretal um if the same is paid. In response to this aspect, the 1st Respondent, in paragraph 18 of the replying affidavit has stated that she owns land and thus she is in a position to refund the decretal sum in the unlikely event that the appeal is determined in favour of the Applicants. 4. As regards to security, Counsel submitted that looking at the decretal sum plus costs, it totals to Kshs.6, 249, 599/= excluding interest. That the Applicants’ proposal on security is minimal and will not serve as sufficient security for the decretal sum. Further, that the balance of Kshs. 5, 249, 599/= will remain unaddressed if the orders are granted. 5. Counsel reiterated that the Applicants has not stated with precision which prejudice they will suffer if this Court disallows the application or orders for payment of half the decretal sums plus costs to the Respondents and the other half of the decretal sum be deposited in a joint interest earning account. That as it stands, the applicant has not provided any documentation to prove that he is not in a financial position to provide security for the entire decretal sum plus costs. 6. Counsel submitted that the Applicant did not call any witness to testify during hearing of the matter in the trial court and they did not dispute liability of the accident that gave rise to the trial court case. The Respondents on the other hand proved that the Applicants were liable for the accident and the Respondent also proved the quantum. That even though the Applicants term the award by the trial Court as excessive, certainly the Respondent was entitled to some award. He urged that to achieve fairness, the Court should strike a balance and order that half the decretal sum be paid to the Respondents pending the determination of the appeal to enable the dependents of the deceased’s estate sustain themselves pending the outcome of the appeal. 7. Counsel submitted that if the orders sought are granted, the Respondents will be greatly prejudiced since there will be no sufficient security for due performance of the appeal and the future financial position of the Appellant/Applicants and/or its insurers remains unknown. That the Applicants appear to be only concerned about themselves and not the Respondents who lost a loved one out of a road traffic accident and have beneficiaries who are still schooling and need finances to push forward. Counsel prayed that his submission on this aspect be considered and placed reliance once more, on the case of Kenya Shell Ltd v Kibiru & Another [1986] KLR 410 [1986] KECA 94 (KLR) [supra]. Additionally, counsel also cited the case of Antoine Ndiaye Vs African Virtual University Nairobi Commercial Appeal No. 422 OF 2006 in this regard. 8. Counsel urged that the Security for due performance of decree must be equivalent to the decretal sum. That it must be the one that can serve the purpose upon determination of appeal. He cited the case of Arun C Sharma -V- Ashana Raikundalia T/A Rairundalia & Co. Advocates on the purpose of security and reiterated that the court should strike a balance when considering the issue of security. 9. On costs, Counsel cited the case of Republic v Rosemary Wairimu Munene, Ex-Parte Applicant v Ihururu Dairy Farmers Co-operative Society Limited and prayed that the application be dismissed with costs. **Analysis & Determination** 1. The sole issue for determination is; **Whether orders for stay of execution pending appeal should be granted** 2. The principles guiding the grant of a stay of execution pending appeal are well settled. These principles are provided for under **Order 42 rule 6(2)** of the **Civil Procedure Rules** which provides: **“No order for stay of execution shall be made under sub rule (1) unless—** 1. **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** 2. **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.** 3. The Court of Appeal in **Butt Vs Rent Restriction Tribunal [1979]** stated what ought to be considered in determining whether to grant or *refuse a stay of execution pending appeal. The court stated that:* 4. ***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.*** 5. ***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.*** 6. ***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.*** 7. ***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 motion. Failure to put security of costs as ordered will cause the order for stay of execution to lapse*** 8. The court, in **RWW v EKW [2019] eKLR**, considered the purpose of a stay of execution order pending appeal, in the following words: ***“The purpose of an application for stay of execution pending an appeal is to preserve the subject matter in dispute so that the rights of the appellant who is exercising the undoubted right of appeal are safeguarded and the appeal if successful, is not rendered nugatory. However, in doing so, the court should weigh this right against the success of a litigant who should not be deprived of the fruits of his/her judgment. The court is also called upon to ensure that no party suffers prejudice that cannot be compensated by an award of costs.*** ***Indeed to grant or refuse an application for stay of execution pending appeal is discretionary. The Court when granting the stay however, must balance the interests of the Appellant with those of the Respondent.”*** **Whether the Applicant shall suffer substantial loss** 1. Substantial loss was explained in the case of**James Wangalwa & Another vs. Agnes Naliaka Cheseto [2012] eKLR,**where the court held 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.”*** 1. The Applicants contend that they shall suffer substantial loss if the orders for stay of execution are not granted. However, other than merely stating the same, the Applicants have not laid out the alleged loss they would suffer if the orders sought are not granted. 2. In the case of **Machira t/a Machira & Co. Advocates vs. East African Standard (No 2) (2002) KLR 63**, it was held as follows; ***“In this kind of applications for stay, it is not enough for the applicant to merely state that substantial loss will result. He must prove specific details and particulars… where no pecuniary or tangible loss is shown to the satisfaction of the court, the court will not grant a stay...”*** 1. I take note of the fact that the decretal sum is Kshs. 5,969,950/= which is a substantial sum of money. Additionally, the Applicants have challenged the ability of the Respondents to refund the decretal sum. Ordinarily, he who alleges must prove. The onus of proving substantial loss in this regard was discussed in **Antoine Ndiaye v African Virtual University [2015] KEHC 6783 (KLR)** where the High Court stated: **“The onus of proving substantial loss and in effect that the Respondent cannot repay the decretal sum if the appeal is successful lies with the Applicant ; follows after the long age legal adage that he who alleges must prove. Real and cogent evidence must be placed before the court to show that the Respondent is notable to refund the decretal sum should the appeal succeed. It is not, therefore, enough for a party to just allege as is the case here…He must prove specific details and particulars…This legal burden does not shift to the Respondent to prove he is possessed of means to make a refund. Except, however, once the Applicant has discharged his legal burden and has adduced such prima facie evidence such that the Respondent will fail without calling evidence, the law says that evidential burden has been created on the Respondent. And it is only where financial limitation or something of sort is established that the evidential burden is created on the shoulders of the Respondent, and he may be called upon to furnish an affidavit of means”** 1. However, in **National Industrial Credit Bank Ltd v Aquinas Francis Wasike & Another [2006] KECA 333 (KLR)** the Court of Appeal stated that: **“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”** 1. It follows that the burden of proof now shifts to the Respondent to show that they have the ability to refund the decretal sum in the event that the appeal succeeds. The deponent, in her replying affidavit, has mentioned that she owns a piece of land and therefore is in a position to refund the decretal sum. However, she has not proved this averment by, at the very least, annexing a copy of the title deed. 2. Therefore, having failed to satisfy the burden of proof on ability to refund the decretal sum, I am of the view that the Applicant is at risk of suffering substantial loss. 3. The Applicants have stated that they are willing to provide security to the tune of Kshs. 1,000,000/- deposited in a joint interest earning account. The Respondents contend that the proposed security is insufficient and pray that they be paid half the decretal sum and the other half deposited in a joint interest earning account in the names of the parties’ advocates. 4. The purpose of security was clearly enunciated in **Arun C. Sharma vs. Ashana Raikundalia t/a Rairundalia & Co. Advocates & 2 others [2014] eKLR**, where the court stated:- ***“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.”*** 1. In the case of **Gianfranco Manenthi & Another vs Africa merchant Assurance Co. Ltd [2019] eKLR** it was held that:- ***“The applicant must show and meet the condition of payment of security for due performance of the decree. Under this condition, a party who seeks the right of appeal from a money decree of the lower court for an order of stay must satisfy this condition on security.*** ***In this regard, the security for due performance of the decree under Order 42 Rule 6(1) of the Civil Procedure Rules, it is trite that the winner of litigation should not be denied the opportunity to execute the decree in order to enjoy the fruits of his judgment in case the appeal falls.’’*** 1. I have considered the Applicants’ proposal for security and the Respondents’ opposition to the same. I have also considered the fact that the Respondents were unable to prove that they are in a position to refund the decretal sum if the Appeal succeeds. 2. Balancing the scales of justice, am persuaded that the application has merit and is allowed subject to conditions as hereunder. I make the following orders; 1. A stay of execution of the judgement and orders of the trial court is granted pending appeal. 2. The stay is on condition that the Appellant pays Kshs. 1000,000 to the Respondent within 30 days hereof and further deposits kshs. 2,000,000 in a joint interest earning account in the names of the parties advocates within the next 60 days and in default of either of the conditions the stay orders lapse. 3. Costs to abide the outcome of the appeal. **Dated signed and delivered virtually this 29th day of May 2026** **A.K. NDUNG’U** **JUDGE**