https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10629

**** **REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT NAKURU** **CIVIL APPEAL NO. E176 OF 2025** **NELSON MUNYUA MAINA…………………...……………..APPELLANT** **-VERSUS-** **MARTIN GIATHI MBURU…………………………………RESPONDENT** **RULING** 1. *Vide* Notice of Motion dated 9 /7/2025 the Appellant craves the following reliefs;- ***I) Spent*** ***2) THAT Stay of execution of the judgement delivered on 9/6/2025 pending the hearing of this appeal .*** ***3)THAT the appeal filed herein be admitted out of time. leave to appeal out of time.*** ***4) THAT the cots of this application be in the cause.*** 1. The Application arises from Judgement and decree of the Small Claims Court which was entered against the Appellant . Aggrieved by the decision, the Appellant lodged a Memorandum of Appeal dated 9/7/2025 based on various grounds, as well as this Application. 2. The Appellant swears a brief affidavit in support of the Application. He states that the lower court entered Judgment against him in SCCC NO. E671 OF 2025 while the parties were negotiating an court of court settlement. The Applicant contends that he had expressed his wish to put in a response to the claim before the lower court in the event that the negotiations failed. He laments that he faces imminent risk execution of the Judgment unless the court urgently intervenes. 3. The Appellant therefore avers that the appeal raises serious issues worth the court’s consideration, hence this Application. 4. The Respondent opposes the Application *vide* his affidavit in reply purportedly sworn on 14/7/2025. He dismisses the Application as lacking in merit, misconceived and an abuse of the court process. It is contended that there is no evidence of imminent execution of the lower court’s decree. Moreover, the Respondent states that the Appellant has not offered security for costs in the event the Appeal does not succeed. 5. According to the Respondent, this Appeal was lodged within the period prescribed by the law a, nd therefore, it is unnecessary for the Appellant to seek leave to appeal out of time. He thinks that the Application is a waste of judicial time and resources and that it is only intended to unduly delay his enjoyment of fruits of litigation. 6. The Respondent further avers that the impugned Judgment was entered on admission and so the Appeal does not raise arguable issues. 7. Learned counsel for the parties filed their respective written submissions on the Application. Counsel for the Appellant concedes that the Appeal was in fact brought within time. Reference is made to **Section 38 of the Smail Claim Court Act, 2016** which provides that an appeal lies to the High Court within 30 days of delivery of the impugned decision. The Memorandum of Appeal herein is said to have been filed on the 29th day, within time. 8. The Appellant continues to submit that the lower court’s Judgment was prematurely entered while the parties were actively negotiating an amicable settlement. He complains that by so doing the lower court deprived him of the right to be heard as he had not closed his case. In support of this submission, reliance is placed on the decision in **Onyango Oloo VS Attorney General (1980) KLR 456** *inter alia* where the Court of Appeal held that a decision arrived at in violation of the rules natural justice, like fair hearing is void. 9. The Appellant makes further submissions citing various cases while appearing to be prematurely arguing the merits of the Appeal. 10. The Respondent’s submissions in reply are that the Appellant has not fully satisfied the conditions for stay of execution pending Appeal stipulated under **Order 42 Rule 6 of the Civil Procedure Rules 2010**. For instance , it is contended that no substantial loss is shown to be likely to be occasioned to the Appellant . It is argued that the Appellant has not demonstrated the Respondent’s inability to make refund in case the appeal succeeds **(**see the judicial determination in **James Wangalwa & Another VS Agnes Naliaka Cheseto (2012) eKLR** among other cases cited by Counsel). 11. Moreover, it is pointed out that the Appellant has not offered the mandatory security for costs that could ultimately be binding on him as underscored in **Samuel M. Magua VS Barclays Bank of Kenya Limited 2012) KEHC 5955(KLR)** also cited by the Respondent’s Advocates. 12. Regarding the prayer for leave to appeal out of time, the Respondent thinks that it is unnecessary saying that the Appeal was in fact filed within time. The court is told that the impugned Judgment was rendered on 17/6/2025 while this Application was brought on 19/7/2025 , within the statutory 30 days period. 13. Learned Counsel for the Respondent further submit that the Appeal is, in any event, not arguable as the Appellant admitted the debt in issue. 14. Alluding to **Order 43 Rules 2 and 3 of the Civil Procedure Rules**, Counsel opine that an appeal against an order made under **Order 13 Rule 2 of the Rules** regarding admission can only be with prior leave. In the absence of leave, the Appeal is rendered incompetent. 15. The court is in the premises urged to dismiss the Application. 16. **Section 79 G of the Civil Procedure Act** provides that an appeal; ‘’ may be admitted out of time if the appellant satisfies the court that he had good and sufficient cause for not filing the appeal in time’’. 1. Case law in **Edith Gichungu V. Stephen Njagi Thoithi (2014) eKLR** lists the following factors among others to be considered before determining whether or not to grant leave to file an appeal out time; ‘’ …… the period of delay; the reasons for the delay; the degree of prejudice to the respondent if the application is granted , and whether the matter raises issues of public importance ….’’ . 1. The court is also enjoined to consider the overriding objectives of civil litigation to ensure a just, expeditious, proportionate, and affordable resolution of disputes ( see case la**w in Kamlesh Mansukhalal Damki Patni V. Director of Public Prosecutions & 3 Others (2015) eKLR** )}. 2. Regarding the remedy of stay of execution pending appeal, the court is obliged to consider the competing interests of the parties to such an application with an eye to ensuring that the appeal is not rendered nugatory thereby exposing the Applicant to substantial loss , and the Respondent also gets consideration having a valid judgement in his favour . In **Daniel Chebutul Rotich & 2 Others V. Emirates Airlines , Civil Case No. 368 of 2001** , substantial loss was explained as hereunder; ‘’ subsatantial loss is a relative term and more often than not can be assessed by the totality of the consequences which an applicant is likely to suffer if stay of execution is not granted and the applicant is therefore forced to pay the decretal sum’’. 1. In **Tropical Commodities Ltd. International (in liquidation) (2004) 2 EA 331** also alluded to by the Appellant, my brother (*Ogolla J* )explained that ***substantial loss*** is a qualitative concept. It refers to;- “**any loss, great or small, that is of real worth or value as distinguished from a loss without value or a loss that is merely nominal.”** 1. The question of ‘’ substantial loss’’ is therefore the cornerstone of the court’s jurisdiction and discretion to grant an order for stay of execution pending appeal ( see case law in **Rhoda Mukuma V. John Abuoga ( 1988) KLR** alluded to by the Appellant’s advocates). 2. The issues for determination are whether the Applicant has shown that he deserves exercise of the court’s discretion in his favour so as to obtain leave to appeal out of time and an order for stay of execution pending appeal. 3. In **Nicholas Kiptoo Arap Korir Salat V. Independent Electoral & Boundaries Commission & 7 Others ( 2015) eKLR** the following principles are laid down as guiding the court’s discretion whether or not to enlarge time; 4. ‘’Extension of time is not a right but an equitable remedy only available to a deserving party. 5. Aparty seeking extension has the burden of laying the basis to the satisfaction of the court. 6. The court’s discretion depends on the circumstances of each case. 7. The question of any prejudice that may be suffered by the respondent should be taken ino account. And 1. The court should also consider whether the application was brought without undue delay.’’ 2. It is common ground on the evidence that the Appeal was in fact been lodged within time. Pursuant to the provisions of **section 38 of the Small Claims Court Act** , and appeal from a decision of that court may be lodged in this court within 30 days of delivery of Judgment, which timeline was complied with. The leave craved is thus unnecessary. 3. **Order 42 rule 6 (1) (2) of the Civil Procedure Rules 2010** governs disposal of an Application for stay of execution pending appeal. The legal provisions stipulate that such order may not be granted;- **“a. unless 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 such decree or order as may ultimately be binding on him has been given by the applicant.”** 1. In **Mohsen Ali & Another v. Priscillah Boit & Another, E& LC Case No. 2000 of 2012 (2014) eKLR** the court explained ‘’unreasonable delay’’ as dependent on the surrounding circumstances of each case. 2. In the circumstances, the Appellant’s delay of about 20 days to bring this Application is found to be unreasonable and inexcusable, therefore this legal condition has not been satisfied. 3. Provision of security for costs is a crucial condition precedent to grant of an order of stay of execution pending hearing and determination of an appeal.This is a mandatory legal requirement that has to be complied with . The court has power to determine the appropriate security for costs but the Applicant must first express willingness and readiness to offer security. 4. In **John Odungo vs Joyce Irungu Muhatia [2014] eKLR** the court observed that an Applicant does not have to actually make a deposit of security to obtain an order of stay of execution. It suffices if he shows “preparedness as well as readiness to provide security should one be called upon to do so”. 5. The Applicant has not satisfied the requirement for offer security for costs which a breach of a mandatory condition for the discretional order of stay of execution pending appeal. 6. Determination of the application turns on the question of substantial loss, if any, the Appellant might suffer if stay of execution is not ordered. The case of **Nyatera vs Nyakundi (Civil Appeal E033 of 2022) [2023]KEHC 3086 KLR) (16 March 2023) (Ruling)** is relevant for the proposition that the Applicant ought to show the manner in which his appeal would be rendered nugatoty if stay of execution is not ordered.. The court opined in the case that it is not enough to say that because the Respondent intends to proceed with execution, he should be stopped because of the appeal. The court is therefore required to tread a delicate balance of the parties’ interests. As it is now trite, this is the cornerstone of the court’s discretion to grant or refuse stay of execution pending appeal. The onus is on the Appellant to show on a balance of probability that the Respondent would not be able to refund the decretal sum if paid out and the appeal eventually succeeds. 7. In **RWW vs EKW [2019]** **eKLR** and **Re Global Tours & Travel Ltd HCWC No. 43 of 2000**In **Milimani HCMCA No. 1561 of 2007, Century Oil Trading Company Ltd vs Kenya Shell Ltd,** this court again explained that;- **“Where execution of a money decree is sought to be stayed, in considering whether the applicant will suffer substantial loss, the financial position of the applicant and that of the respondent becomes an issue. The court cannot shut its eyes when, it appears the possibility is doubtful of the respondent refunding the decretal sum in the event that the applicant is successful in his appeal. The court has to balance the interest of the applicant who is seeking to preserve the status quo pending the hearing of the appeal so that his appeal is not rendered nugatory, and the interest of the respondent who is seeking to enjoy the fruits of his judgement.”** 1. In **Shell Ltd V. Kibiru & Another (1986) KLR 410** it was famously postulated that ‘’ substantial loss in its various forms is the cornerstone of the court’s jurisdiction to grant stay pending appeal. 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.’’ 2. Regarding the burden of proof, the Court of Appeal held in **National Industry Credit Limited vs Aquinas Francis Wasike & Another [2006] eKLR** that;- **“once an applicant expresses a reasonable fact that a respondent would be unable to pay back the decretal sum, the evidential burden must then shift to the respondent to show whatever resources he has since that is a matter which is peculiarly within his knowledge.”** 1. The legal position elucidated in the cited Case Law has been reiterated in several recent cases including **Matata & Another vs Rono & Another (Civil Appeal No. E034 of 2024) [2024] KEHC 2799 (KLR) (19 March 2024) (Ruling)** and **Muinde Mulatya & Another ( 2021) eKLR and Kenya Commercial Bank Limited V. Sun City Properties Limited 7 & 5 Others ( 2012) eKLR**. 2. As already noted, the parties agree that the Appeal was in fact fled within time. While the impugned Judgment was rendered on 17/6/2025 this Appeal was lodged on 9/7/2025. The Appeal was therefore brought withing the 30 days prescribed by the law. The leave sought is thus unnecessary. Regarding the relief of stay of execution , **Order 42 Rule 6 of the Civil Procedure Rules** has not been complied with as the Appellant has not offered the mandatory security for costs. 1. The long delay of over 20 days is to bring this Application is also unexplained. 2. Based on the affidavit evidence of the parties neither of them has stated their financial position. The Applicant who shoulders the burden of proof have in particular not made out a *prima facie* case of the Respondent’s inability to pay back any decretal sum to warrant the latter to debunk the claim. 3. In the particular circumstances of this case, therefore, the Appellant has not satisfied the key substantial loss test as well as the requirements to institute such application without inordinate or unreasonable delay and to to provide security for costs. The onus was on the Appellant to meet or substantially all the conditions stipulated hereinabove. 4. The Application for stay of execution of the lower court’s Judgment pending Appeal is accordingly dismissed, and the costs of the Application shall abide the Appeal. **J. M. NANG’EA, JUDGE.** **Ruling delivered virtually this 13th day of July , 2026 in the presence of:** **The Advocate for the Appellant, Mr Omolo.** **The Advocate for the Respondent, Mr Wachira for Mr Omondi.** **Court Assistant, Jeniffer** **J. M. NANG’EA, JUDGE.**