https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9697

Nation Media Group Ltd v Nyawiri (Civil Appeal E154 of 2025) [2026] KEHC 9697 (KLR) (11 June 2026) (Ruling) Neutral citation: [2026] KEHC 9697 (KLR) Republic of Kenya In the High Court at Kisumu Civil Appeal E154 of 2025 JM Omido, J June 11, 2026 Between Nation Media Group Limited Appellant and Carilus Osero Nyawiri Respondent Ruling 1.The Appellant’s notice of motion dated 30th July, 2025 is expressed to be brought under Sections 3, 3A and 63 of the Civil Procedure Act and Order 42 Rule 6(1), (2), (4) and (6) and Order 51 of the Civil Procedure Rules and seeks the following orders:a.[Spent].b.[Spent].c.That his Honourable court be pleased to grant a stay of execution herein pending hearing and determination of the Appeal filed in the High Court of Kenya at Kisumu.d.[Spent].e.That costs of this Application be provided for. 2.The grounds upon which the application is premised are in precis that the trial court delivered judgment on 25th June, 2025 in Kisumu CMCC No. 266 of 2019, awarding the Respondent a sum of Ksh.8,000,000/- together with costs against the Applicant. The Applicant, being aggrieved and dissatisfied with the said judgement, lodged an appeal before this court and duly filed a memorandum of appeal challenging the decision of the trial court. 3.The Applicant contends that the intended appeal raises serious and arguable issues of both law and fact with high prospects of success, thereby warranting the preservation of the subject matter pending the determination of the appeal. 4.It is further contended that the present application has been brought without unreasonable delay and that the Respondent will not suffer any prejudice if the orders sought are granted. 5.The Applicant avers that unless an order of stay of execution is granted, execution may issue against it, thereby occasioning substantial loss and rendering the appeal nugatory before it is heard and determined. 6.The Applicant further states that it is ready, willing and able to furnish security for the due performance of the decree by depositing a bank guarantee for a reasonable portion of, or the entire, decretal sum within forty-five (45) days of the court's order. 7.The Applicant therefore maintains that the interests of justice favour the grant of the orders sought pending the hearing and determination of the appeal. 8.The application is supported by the affidavit of Sekou Owino sworn on 30th July, 2025. In his affidavit, the said deponent deposes that he is the head of the Legal Department of the Applicant and is duly authorized and competent to swear the affidavit on its behalf, being well versed with the facts and circumstances surrounding the matter. 9.The deponent avers that judgement was delivered on 25th June, 2025 against the Applicant and that, being dissatisfied with the said judgement, the Applicant instructed its advocates on record to lodge an appeal against the whole decision. 10.He further deposes that pursuant to those instructions, a memorandum of appeal was filed before this court and that, according to advice received from the Applicant’s advocates, the appeal raises serious and arguable issues of both law and fact which merit consideration by the appellate court. 11.The deponent states that unless the orders sought are granted, the Applicant stands to suffer substantial loss and damage as execution may issue against it and its assets may be attached in satisfaction of the decretal sum. 12.He further avers that the decretal amount is substantial and that if the same is paid out to the Respondent and the appeal subsequently succeeds, the appeal would be rendered nugatory since the Respondent, who is no longer in the employment of the Judicial Service Commission, may not be in a position to refund the decretal sum or any substantial part thereof. 13.It is further deposed that no prejudice will be occasioned to the Respondent if the orders sought are granted and that the present application was filed without unreasonable delay. 14.On the basis of the foregoing matters, the deponent urges the Court to allow the application and grant the orders sought. 15.The application is opposed and to that end the Respondent filed a replying affidavit sworn on 16t October, 2025 by Geoffrey O. Okoth, Counsel having conduct of the matter on behalf of the Respondent. The deponent avers that he is well acquainted with the issues raised in the application and is therefore competent to swear the affidavit in opposition thereto. 16.The deponent confirms that judgement was delivered on 25th June, 2025 in Kisumu CMCC No. 266 of 2019 wherein the trial court found the Applicant liable for defamation and awarded the Respondent Ksh.6,000,000/- as general damages and Ksh.2,000,000/- as aggravated and exemplary damages, making a total award of Ksh.8,000,000/- exclusive of costs. He further deposes that the decretal sum remains unpaid to date. 17.Counsel further states that the Applicant’s appeal challenges both the finding on liability and the quantum of damages awarded by the trial court. 18.The deponent avers that the grant of stay of execution is governed by Order 42 Rule 6(2) of the Civil Procedure Rules and that an Applicant seeking such relief must demonstrate that substantial loss may result if stay is denied, that the application was made without unreasonable delay and that security for the due performance of the decree has been provided. 19.It is deposed that the Applicant has failed to demonstrate the nature of the substantial loss it is likely to suffer if stay is not granted. According to the deponent, the Applicant’s apprehension that its property may be attached and that the Respondent may be unable to refund the decretal sum is unsupported by evidence and therefore does not satisfy the legal threshold for the grant of stay pending appeal. 20.The deponent further refutes the Applicant’s assertion that the Respondent is no longer employed by the Judicial Service Commission and is therefore incapable of refunding the decretal sum. He contends that no evidence has been tendered to establish either the Respondent’s alleged separation from employment or his inability to repay the decretal amount in the event the appeal succeeds, and that the allegation is therefore baseless and unsubstantiated. 21.It is further deposed that in applications seeking stay of execution of monetary decrees, the court is required to balance the interests of both parties by safeguarding the Applicant’s right of appeal while at the same time ensuring that the Respondent is not unjustly denied the fruits of a valid judgment. 22.With regard to the issue of security, the deponent contends that the Applicant’s proposal to furnish a bank guarantee is vague and prejudicial since the proposed bank has not been disclosed. He maintains that the proposal lacks certainty and does not satisfactorily meet the requirements of Order 42 Rule 6(2) of the Civil Procedure Rules. 23.Consequently, the deponent urges the court to dismiss the application with costs on the ground that the Applicant has failed to satisfy the conditions for grant of stay pending appeal. In the alternative, and without prejudice to the foregoing, he proposes that any order of stay be conditional upon the Applicant depositing the entire decretal sum together with assessed costs in a reputable and disclosed bank, or alternatively depositing Ksh.6,000,000/- in a joint interest-earning account in the names of counsel for the parties and paying the Respondent Ksh.2,000,000/- together with party and party costs within forty-five (45) days, failing which execution should issue. 24.The deponent finally avers that the application, the supporting affidavit and the annexures thereto are fatally defective and bad in law, and prays that the same be dismissed. 25.When the application came up for hearing on 12th February, 2026, the parties were substantially in agreement that an order for stay should issue. However, they were unable to reach a consensus on the form of security to be provided by the Applicant and the timeframe within which such security should be furnished. The parties accordingly relied on their respective affidavits and invited the Court to determine those outstanding issues. 26.Thus then, from the pleadings, affidavits on record and the rival positions taken by the parties, the issues falling for determination by this Court are what would constitute appropriate security to be furnished as a condition thereof; the timeline within which such security should be provided; and lastly, the issue of costs of the application. 27.Having considered the rival positions taken by the parties, the Court notes that this is a money decree arising from an award of Ksh.8,000,000/-. In determining the appropriate security to be furnished as a condition for stay, the Court is guided by the need to balance the competing interests of the parties; namely, the Applicant’s right of appeal on the one hand, and the Respondent’s right to enjoy the fruits of judgment on the other. 28.In the circumstances of this case, the Court is of the view that the most equitable order is that the entire decretal sum be deposited in an interest-earning account in the joint names of the advocates for the parties, considering that this is a money decree. This arrangement sufficiently secures the Respondent’s decree while at the same time preserving the subject matter of the appeal pending its determination. 29.Accordingly, an order of stay of execution of the judgement and decree of the trial court is hereby issued pending the hearing and determination of the appeal filed herein on the condition that the Appellant deposits the sum of Ksh.8,000,000/- in an interest-earning account in the joint names of the respective advocates on record within forty-five (45) days from the date hereof. In default, the Respondent will be at liberty to execute the decree. 30.On the issue of costs, the same shall abide the outcome of the appeal. 31.Mention on 17th September, 2026 for directions on the disposal of the appeal. 32.Orders accordingly. DELIVERED, DATED & SIGNED THIS 11TH DAY OF JUNE, 2026.JOE M. OMIDOJUDGEFor Appellant: Ms. Asuna.For Respondent: Ms. Aguko.Court Assistants: Mr. Ngoge & Mr. Juma.