https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7080

**REPUBLIC OF KENYA** **IN THE HIGH COURT AT VIHIGA** **CIVIL APPEAL NO E016 OF 2026** **GEORGE MWAURA………………………………………………………1ST APPELLANT** **FLYING JAPAN LIMITED………………………………………………2ND APPELLANT** **FIDEL INZAHULI…………………………………………………………3RD APPELLANT** **VERSUS** **ANN MWENDARANI………………………………………………………..RESPONDENT** **Coram: Before Justice R. Nyakundi** **M/s KRK Advocates LLP** **M/s Mahinda & Maina Co Advocates** **RULING** 1. What is pending before this Honourable Court for determination is a Notice of Motion Application dated 23rd April 2026 premised under Order 42 Rule 6 of the Civil Procedure Rules 2010, Section 3A of the Civil Procedure Act and Article 50 and 159(2) of the Constitution of Kenya 2010 where the Appellants/Applicants are seeking the following orders: - 2. *Spent* 3. *Spent* 4. *That this Honourable Court be pleased to grant an order of stay of execution of the judgment and/ or decree of Kshs. 175,000/= plus costs and interest in* ***Vihiga CMCC No. E202 of 2022*** *delivered on 2nd April, 2026 pending hearing and determination of this Appeal.* 5. *That the costs of this application be provided for.* 6. The Application is made on the following grounds on the face of it among others: - 7. That the Appellants being aggrieved and dissatisfied with the Judgement of the Honourable Court in Vihiga CMCC No. E202 of 2022 delivered on 2nd April 2026 have filed this Appeal notwithstanding that stay orders granted is yet to lapse. 8. That when judgment was delivered on the 2nd April 2026 counsel for Appellants sought 30 days stay of execution which was granted by the Honourable Court. 9. That the Appeal shall be rendered nugatory if the orders sought herein are not granted as the Respondent may execute, proclaim and thereby attach and sell the property. 10. That the Appeal is meritorious with a high probability of success. 11. That the Respondent is a person of straw and may not be in a position to make good any loss/damage suffered if the decree herein is enforced and the Appeal ultimately succeeds. 12. That this Honourable Court allow the Appellants' insurance i.e. Directline Assurance Company Limited, by dint of their rights of subrogation to furnish the Court with security in the form of a Bank Guarantee from Family Bank. 13. The Application is supported by the annexed Affidavit dated 23rd April 2026 sworn by Barbara Ngome who deponed as follows: - 1. *That I am an Advocate of the High Court of Kenya practicing as such in the firm of KRK Advocates LLP, who are on record for the Appellants and that I am personally seized of the conduct of this matter with leave and authority to swear this affidavit hence competent to do so.* 2. *That I know of my own know knowledge that Judgment in Vihiga CMCC No. E202 of 2022 was delivered on 2nd April 2026 in the sum of Kshs. 350,000/= subject to apportionment of liability.* 3. *That I know of my own know knowledge that Orders for Stay of execution for thirty days were issued on the said date and the same shall lapse on the 2nd May 2026.* 4. *That I further know as of personal knowledge that upon notifying the Appellant of the contents of the judgment, they were aggrieved and dissatisfied with the said decision of the Honourable Court, thereby instructed us to Appeal against the Court's finding on liability and quantum hence this appeal.* 5. *That I further know of my own knowledge and upon perusal of the judgment and the Memorandum of Appeal that this Appeal has a high chance of success and as such the prayers sought should be granted.* 6. *That I know of my own knowledge that failure to grant stay of execution shall be prejudicial to the Appellants as the Respondent will then proceed upon lapse of 30 days to proclaim and thereby attach and sell the Appellants property in satisfaction of the decree.* 7. *That I know of my own know knowledge that the substratum of the Appeal shall then be rendered nugatory if an order of stay of execution is not granted.* 8. *That I verily believe that the Respondent, being a person of straw, may not be in a position to make good any loss/damage incurred or suffered by the Applicant if the decree herein is enforced and the appeal ultimately succeeds.* 9. *That that the Appellant's insurance to wit Directline Assurance Company Limited, being a reputable company of means and by dint of their rights of subrogation are willing and capable of furnishing a bank guarantee for the due performance of the decree pending the hearing and determination of the Appeal.* 10. *That I verily believe that the grant of the Orders sought herein will not occasion any prejudice to the Respondent whereas the Appellants stand to suffer great prejudice should it not be allowed to ventilate its Appeal.* 11. *That I know from my learning of the law that this Court has the inherent power to grant the Orders sought herein so as to enable the ends of justice to be met.* 12. *That I swear this affidavit in support of the application filed herewith and the orders sought therein.* 14. The Application is opposed vide a Replying Affidavit dated 7th May 2026 sworn by the Respondent who deponed as follows: - 15. *That on 2nd April 2026, the trial court delivered judgment in favour of the Respondent against the Applicants.* 16. *That the Court apportioned liability at 50%:50% in favour of the Respondent against the Applicants and awarded the Respondent general damages of Kshs. 350,000, subject to liability, together with costs and interest.* 17. *That the Applicants' claim that the intended appeal has high chances of success is unmerited, unsubstantiated, and does not meet the threshold required for the grant of an order for stay of execution.* 18. *That no good and/or sufficient reasons have been advanced by the defendants/applicants herein, for grant of the orders sought to occasion this court exercise its discretion in their favour.* 19. *That the Applicant has not demonstrated sufficient cause to warrant the grant of an order for stay of execution pending appeal.* 20. *That in particular, the Applicant has failed to establish that they will suffer substantial loss if the orders sought are not granted.* 21. *That the Applicant has not placed before this Honourable Court any credible evidence to demonstrate that the Respondent would be unable to refund the decretal sum in the event that the intended appeal succeeds.* 22. *That without prejudice to the foregoing, and in the event that this Honourable Court is inclined to grant an order for stay of execution, the Respondent avers that any security offered by the Applicants ought to guarantee certainty of the decretal sum without exposing the Respondent to any further litigation.* 23. *That**the honorable court is espoused with wide and unfettered discretion to dismiss the appellant's application in the wider interest of justice.* 24. *That I consequently swear this Replying Affidavit in response to the appellants' application herein which replying affidavit I verily believe is meritorious.* **Analysis and Determination** 1. I have carefully read and considered the application and the Replying Affidavit in opposition of the same. There is only one (1) issue manifest for determination by this Honourable Court: - **Whether the Applicants have met the prerequisite for grant of stay of execution pending appeal.** 1. The principles upon which the court may stay the execution of orders appealed from are well settled. **Order 42 Rule 6 of the Civil Procedure Rules** stipulates: - ***“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 orders set aside.*** ***No order for stay of execution shall be made under sub rule 1 unless:-*** ***a. The Court is satisfied that substantial loss may result to the 1st 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.*** 1. Therefore, under Order 42 Rule 6(2) of the Civil Procedure Rules, an Applicant should satisfy the court that: - 2. Substantial loss may result to him unless the order is made; 3. That the application has been made without unreasonable delay; 4. The applicant has given such security as the court orders for the due performance of such decree or order as may ultimately be binding on him. 5. These principles were enunciated in **Butt Vs 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: - 6. ***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.*** 7. ***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.*** 8. ***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.*** 9. ***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.*** **Substantial loss** 1. This limb requires the applicant to clearly state what loss, if any, they stand to suffer. This principle was enunciated in the case of**Shell Ltd Vs Kibiru and Another [1986]** **KLR 410 where Platt JA** set out two different circumstances when substantial loss could arise as follows: *-* ***“The appeal is to be taken against a judgment in which it was held that the present respondents were entitled to claim damages….It is a money decree. An intended appeal does not operate as a stay. The application for stay made in the high Court failed because the gist of the conditions set out in Order XLI Rule 4 (now Order 42 Rule 6(2)) of the Civil Procedure Rules was not met. There was no evidence of substantial loss to the applicant, either in this matter of paying the damages awarded which would cause difficulty to the applicant itself, or because it would lose its money, if payment was made, since the Respondents would be unable to repay the decretal sum plus costs in two courts….”*** The learned judge continued to observe that: - ***“It is usually a good rule to see if Order XLI Rule 4 of the Civil Procedure Rules can be substantiated. If there is no evidence of substantial loss to the applicant, it would be a rare case when an appeal would be rendered nugatory by some other event. Substantial loss in its various forms is the cornerstone of both jurisdictions for granting 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 Applicants contend that unless stay is granted, the Respondent shall proceed with execution and that the Respondent is a person of straw incapable of refunding the decretal amount if the Appeal succeeds. The Respondent on the other hand contends that no evidence has been placed before Court to prove inability to refund the decretal sum. The law is settled that substantial loss is the cornerstone upon which an application for stay pending appeal rests. In the present matter, the Applicants have expressly deponed that the Respondent may not be capable of refunding the decretal sum if the Appeal succeeds. 2. The Respondent has not placed before this Court any documentary evidence demonstrating financial ability to refund the decretal amount. While the decretal sum herein is not colossal, this Court is nevertheless alive to the principle that execution before determination of an Appeal may render the Appeal nugatory especially where recovery may become difficult. 3. Consequently, I am satisfied that the Applicants have sufficiently demonstrated the likelihood of substantial loss. **Application being made without unreasonable delay** 1. In this instance case, the judgment was delivered on 2nd April 2026 while the present Application was filed on 23rd April 2026. The Application was therefore filed within twenty-one (21) days from the date of judgment and before lapse of the interim stay granted by the subordinate court. In the circumstances, I find that the Application was filed timeously and without unreasonable delay. **Security of Costs.** 1. The other element to be satisfied by the applicants is security is security of costs. The applicants ought to satisfy the condition of security. In the persuasive decision of **Gianfranco Manenthi & Another vs Africa merchant Assurance Co. Ltd [2019] eKLR**the court observed: - ***“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.*** ***Further Order 42 should be seen from the point of view that a debt is already owed and due for payment to the successful litigant in a litigation before a court which has delivered the matter in his favour. This is therefore to provide a situation for the court that if the appellant fails to succeed on appeal there could be no return to status quo on the part of the plaintiff to initiate execution proceedings where the judgment involves a money decree. The court would order for the release of the deposited decretal amount to the respondent in the appeal….*** ***Thus, the objective of the legal provisions on security was never intended to fetter the right of appeal. It was also put in place to ensure that courts do not assist litigants to delay execution of decrees through filing vexatious and frivolous appeals. In any event, the issue of deposit of security for due performance of decree is not a matter of willingness by the applicant but for the court to determine. Counsel for the applicant submitted that he is ready to provide a bank guarantee as security for due performance of the decree.”*** 1. Similarly in **Arun C. Sharma Vs Ashana Raikundalia t/a Rairundalia & Co.** **Advocates & 2 Others [2014] eKLR** 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 the 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. From the foregoing decisions, it is evident that the issue of security is discretionary and it is upon the court to determine the same. Notably, in his application, the applicant stated that he is willing to offer security in the form of a bank guarantee if called upon by this Honourable Court to do so. In the instant case, the Applicants have expressed willingness to furnish security in the form of a Bank Guarantee from Family Bank through Directline Assurance Company Limited. 2. It is important to note that the right of appeal must be balanced against an equally weighty rigid right of the plaintiff to enjoy the fruits of the judgment delivered in his favour. In the case of **Mohammed Salim t/a Choice Butchery Vs Nasserpuria Memon Jamat (2013) eKLR** where the court upheld the decision of **Portreitz Maternity vs James Karanga Kabia Civil Appeal No. 63 of 1991** and stated that: - ***“That right of appeal must be balanced against an equally weighty rigid right of the plaintiff to enjoy the fruits of the judgment delivered in his favour. There must be a just cause for depriving the plaintiff of that right.”*** 1. From the above analysis, it is my considered view that on a balance of interests, since the applicants are willing to deposit the decretal sum, I am convinced that the fair balance would be for the applicant to provide a bank guarantee from a reputable bank and in which case they have proposed family bank. 2. Consequently, the Notice of Motion dated 23rd April 2026 is merited and is hereby allowed on the following terms: - 3. *There shall be a stay of execution of the judgment and decree in Vihiga CMCC No. E202 of 2022 delivered on 2nd April 2026 pending the hearing and determination of the Appeal.* 4. *The Applicants shall furnish a Bank Guarantee from Family Bank or any other reputable bank for the entire decretal sum of Kshs. 175,000/= together with costs and interest within thirty (30) days from the date of this ruling.* 5. *In default of compliance with order (b) above, the stay granted herein shall automatically lapse.* 6. *Costs of the Application shall abide the outcome of the Appeal.* 7. *Orders accordingly.* **DATED, SIGNED AND DELIVERED AT VIHIGA VIA EMAIL AND CTS THIS 25TH DAY OF MAY 2026** **………………………………………….** **R. NYAKUNDI** **JUDGE**