https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9011

Njoroge v Wagatwe (Civil Appeal E119 of 2024) [2026] KEHC 9011 (KLR) (17 June 2026) (Ruling) Neutral citation: [2026] KEHC 9011 (KLR) Republic of Kenya In the High Court at Murang'a Civil Appeal E119 of 2024 CW Githua, J June 17, 2026 Between Peter Kamau Njoroge Appellant and Nancy Wagatwe Respondent Ruling 1.By way of a Notice of Motion dated 23rd October 2025, the appellant, Peter Kamau Njoroge (hereinafter the applicant) approached this court seeking stay of execution of the trial court’s judgment in Kandara PMCC No. E114 of 2023 pending hearing and determination of his appeal. 2.In the grounds premising the motion and in his supporting affidavit, the applicant avowed that he had been served with a notice of proclamation dated 3rd October 2025 and if stay was not granted, execution would proceed before his appeal was heard and determined; that if execution was carried out, he would suffer untold damages. 3.The application was opposed vide a replying affidavit sworn on 23rd November 2025 by L.N Maina, learned counsel for the respondent. Counsel deposed that the application was frivolous and misconceived and that it was filed in bad faith with the sole intention of delaying enjoymentof the respondent’s fruits of her judgment. To buttress this point, counsel contended that the application was filed over an year after delivery of the impugned judgment and no reason had been given for the delay. 4.In addition, the respondent invited this court to note that the applicant had failed to demonstrate that he would suffer irreparable harm which cannot be compensated by costs if the application was dismissed and that in any event, the applicant had not offered any security for due execution of the decree. 5.In the alternative and on a without prejudice basis, the respondent further averred that in the event that the court was inclined to allow the application, stay granted should be conditional upon the applicant depositing the entire decretal amount in an interest earning account held jointly by advocates on record for both parties. 6.The application was prosecuted by way of written submissions. On behalf of the applicant, the firm of Karuga Wandai & Company Advocates filed brief written submissions dated 12th February 2026 while those of the respondent dated 20th February 2026 were filed by Ms. Rwito & Company Advocates. 7.In his submissions, the applicant only urged the court to find that his appeal had good chances of success and if stay was not granted, the respondent would proceed with execution which would render his appeal nugatory. 8.On the other hand, the respondent in her submissions re-iterated the averments made in the replying affidavit and emphasized that the application lacked merit and ought to be dismissed as the applicant had failed to satisfy the conditions precedent to grant of stay stipulated in Order 42 Rule 6 (2) of the Civil Procedure Rules (the Rules). 9.Additionally, the respondent denied the applicant’s claim that the appeal had high chances of success and contended that the appeal was an afterthought designed to delay satisfaction of a lawful decree. 10.Having considered the application, the affidavits on record and the parties rival written submissions, I find that the only issue arising for my determination is whether the applicant had demonstrated that he was deserving of the stay orders as sought. 11.It is trite law that stay of execution is a remedy granted at the discretion of the court but just like any other judicial discretion, in determining applications for stay, the court’s discretion must be exercised judiciously in accordance with the law and established legal principles. 12.The legal parameters for grant of stay pending appeal are set out in Order 42 Rule 6 (2) of the Civil Procedure Rules which state as follows;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 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 ”. 13.From the above provision, it is clear that to be entitled to the exercise of the courts discretion in applications of this nature, the applicant must demonstrate existence of the following three conditions, namely,1)That if stay was not granted, he or she was likely to suffer substantial loss.2)That the application was filed timeously; and;3)That adequate provision of security had been offered for the due performance of the decree. 14.In this case, the application is primarily grounded on the claim that execution of the decree had been commenced and if stay was not granted, the applicant’s appeal which had high chances of success would be rendered nugatory. 15.Although at this stage it is not possible to determine whether or not the applicant’s appeal has high chances of success, it is important to point out that the mere pendency of an appeal does not justify stay of execution because execution is a lawful process through which a successful litigant accesses fruits of his or her judgment. Ideally, the court should not suspend a successful litigant’s right to enjoy fruits of a judgement unless it was satisfied that unless stay was granted, substantial loss was likely to occur to the applicant or that the pending appeal would be rendered nugatory. 16 .The above position was well articulated by the Court of Appeal in Kenya Shell Ltd V Benjamin Kibiru & Another (1986) KLR 410 which was cited by the respondent in which the court stated as follows;……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 corner stone of both jurisdictions in granting a 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……” 17.As correctly submitted by the respondent, the applicant in this case has not claimed let alone demonstrated that if stay was not granted as prayed, he was likely to suffer substantial loss. He has also not shown how his pending appeal would be rendered nugatory if the court declined to allow the application as prayed. He has for instance, not claimed that the respondent was a person of straw and that if the decretal amount was paid to her, she would be incapable of refunding it if his appeal was successful. 18.Since what is sought to be stayed is a monetary decree, the pending appeal in my view can only be rendered nugatory if there was evidence to prove that the applicant was unlikely to recover the decretal sum if paid to the respondent if his appeal was successful. There is no such evidence in this case. 19.Regarding the question whether the application was filed timeously, it is important to point out that although the impugned judgment was delivered on 27th March 2024, it was not until 23rd October 2025 that the instant application was filed. This was about one year and seven months later. More importantly, no reason has been advanced to explain this long delay. The delay in my view was prolonged and unexplained leading me to the conclusion that it was inordinate and inexcusable. 20.In view of the foregoing, even without considering whether or not the applicant had offered security for the due performance of the decree, I am satisfied that the applicant has failed to establish that he was deserving of exercise of the courts discretion by granting of the orders of stay as sought. Consequently, it is my finding that the application lacks merit and it is hereby dismissed with costs to the respondent. 21.it is so ordered. DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIVASHA THIS 17TH DAY OF JUNE 2026C.W GITHUAJUDGEIn the Presence of :Mr. Karuga Wandai for the ApplicantMs. Mungania for the respondentMs. Hannah Mbugua, Court Assistant