https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11534

# REPUBLIC OF KENYA **IN THE HIGH COURT OF KENYA AT NAIROBI MILIMANI LAW COURTS** **CIVIL APPEAL NO. E955 OF 2024** STEPHEN GAITA NJUGUNA 1ST APPELANT/APPLICANT BERNARD NDUNG’U NDICHU… 2ND APPELLANT/APPLICANT -VERSUS- PETER KARIUKI WANYOIKE & ESTHER WANDIA GATHANGA (Suing as the legal administrators of estate of the late KENNETH WANYOIKE KARIUKI (DECEASED)) RESPONDENTS (*Being an application for stay of execution of the judgement delivered by Honourable Justice A.N. Ongeri on 22nd January 2026 in Civil Appeal E955 of 2024.*) # RULING 1. Before the Court is an application dated 22nd May 2026, expressed to be brought pursuant to sections 1A, 1B, 3A and 63e of the Civil Procedure Act and, Order 42 Rule 6 and Order 51 Rule 1 of the Civil Procedure Rules. The applicant seeks for orders: 1. That this application be certified as urgent and be heard *ex-parte* in the first instance *(Spent).* 2. That pending the hearing and determination of this Application, this Honourable Court be pleased to order that the status quo obtaining herein be maintained and that no execution and/or further execution proceedings be undertaken against the Applicants. * 1. That this Honourable Court be pleased to grant stay of execution of the judgement delivered on 22nd January 2026 for a period of sixty (60) days, and all consequential orders thereto. 2. That the costs of this application be in the cause. Peter Kariuki Wanyoike & Esther Wandia Gathanga (Suing as The Legal Administrators of Estate of The Late Kenneth Wanyoike Kariuki (Deceased)) are the respondents herein. 1. The underlying dispute originates from the appellate judgement of this court by Honourable Justice A.N Ongeri delivered on 22nd January 2026. In that judgement, the quantum of the decretal sum awarded by the trial court in Milimani CMCC No. E3561 of 2021 was reassessed and scaled down from Kshs 4,222,250/- to Kshs 3,242,250/-. 2. The application is supported by the affidavit of Stephen Gaita Njuguna sworn on even date, who avers that the judgement was delivered in absence of the parties and their advocates citing miscommunication and administrative difficulties relating to the court file resulting to delay in filing the present application. 3. The application is opposed by the Replying Affidavit sworn by Peter Kariuki Wanyoike on 3rd June 2026. Both parties filed submissions. # Applicant’s Submissions 1. In submissions dated 9th July 2026, the appellants/applicants state that Order 42 Rule 6 of the Civil Procedure Rules provides for the court’s discretion to grant stay pending appeal on condition that it is satisfied that; substantial loss may result to the applicant, furnishing of security and, that the application is made without undue delay. 1. Relying on *Utalii Transport Company Limited & 3 others v NIC Bank Limited & another [2014] KEHC 7255 (KLR)* and *Salat v Independent Electoral and Boundaries Commission & 7 others [2014] KESC 12 (KLR)* the appellants/applicants submitted that the court has discretion to extend time on a case by case basis. 2. The appellants/applicants urge the court to consider that the delay was occasioned by administrative circumstances beyond their control. The judgement was scheduled for delivery on 16th January 2026, but they were informed during court that their written submissions could not be traced. The matter was rescheduled to 22nd January 2026. 3. The appellants/applicants further allege that on the said date, the judgement was not delivered despite him being present in the virtual court. On 11th February 2026, they were informed during court that the judgment had been delivered on 22nd January 2026. They immediately tried to seek stay orders but were told to wait for further directions. After several mention attendances, the judgement was uploaded to CTS on 13th May 2026. They appeared in court on 20th May 2026 to seek stay orders again. 4. It is further submitted that they stand to suffer substantial loss if the respondents proceed with execution. They state that because of the delay in obtaining the judgment, they stand to be prejudiced as they have not had sufficient time to consider the judgement and consult on remedies available to them. They cite *James Wangalwa & another v Agnes Naliaka Cheseto [2012] eKLR* where the court stated 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. 1. Lastly, the appellants/applicants submit that they have already furnished security of Ksh 2,111,125/- which demonstrates good faith and willingness to comply with any other court orders. # Respondent’s submissions 1. In submissions dated 18th June 2026, the respondents contend that the appellants/applicants have failed to meet the requirements of Order 42 Rule 6(2) of the Civil Procedure Rules. 2. The respondents submit that the reason provided to the court for the four month delay is not sufficient and that the appellants/applicants ought to have exercised their diligence in obtaining a copy of the judgement much earlier. They cite *Waweru v Bor & another [2024]* where the court stated that an applicant who sits on their rights and fails to move the court timeously cannot seek the exercise of the court’s equitable discretion. 3. The respondents further submit that the appellants/applicants failed to demonstrate substantial loss as they did not give any quantified, evidential or realistic reasons. They cited *RWW v EKW [2019]* and *Abdalla & another v Atembe & 2 others [2023]* to emphasize that merely stating that the applicant stands to suffer substantial loss without specific evidence of the loss is not sufficient. 4. It is also submitted that the sum of Kshs 2,111,125/- deposited by the appellants/applicants is merely 50% of the principal decretal sum, therefore, the appellants/applicants ought to deposit the full sum plus reasonable interest into a joint interest-earning account in the names of both counsel on record. # Determination 1. Having considered the application, replying affidavit, parties’ submissions, the authorities cited, and the law, the issue for determination is whether this application for stay is merited. 2. Order 42 Rule 6(2) Civil Procedure Rules reads: # “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. On undue delay, the respondents argued that the application was filed four (4) months after the judgement was delivered on 22nd January 2026, thus, the appellants/applicants had slept on their rights. The appellants/applicants blame the delay on administrative issues and miscommunication with regards to traceability of the court file. 4. The court acknowledges the principle that equity aids the vigilant. In *Salat v Independent Electoral and Boundaries Commission & 7 others [2014] KEHC 12 (KLR)* the Supreme Court stated that extension of time is an equitable remedy that is only available to a deserving party at the discretion of the court. 1. In my view, the appellants/applicants have not tendered a justifiable reason for the delay. They could have made their way to the registry on 22nd January 2026 to inquire the status of the matter in person. Secondly, I see no explanation as to why the appellants/applicants did not make their way to the registry after 11th February 2026 but chose to seek mention dates instead, which only added to the delay. Litigation is meant to be an active pursuit and one ought to be proactive in their approach. 2. On the second limb of substantial loss, the appellant/applicants urge this court that they stand to suffer loss in the form of prejudice if execution proceeds as they would have no time to consult on the way forward. 3. In my view, they have failed to understand the core of this condition by relying on a lack of time argument instead of demonstrating to this court the specific quantified extent of loss they stand to suffer. 4. Lastly, on furnishing security, this court notes that the appellants/applicants have expressed their willingness to comply and demonstrated previous compliance. However, the respondents expressed that the sum of Kshs 2,111,125/- is only 50% of the original decretal sum. 5. Furnishing security is meant to balance the scales of justice by ensuring the decree holder is not denied the fruits of their judgement indefinitely. I note that since the judgement of 22nd January 2026 reassessed the decretal sum to Kshs 3,242,250/-, the already deposited sum is now 65% of the total. 6. During the hearing of the application on 15th July 2026, the parties through their counsel, (Mr. Orenge for the respondents and M/s Warieni for the applicants) joined issues and requested that the parties be given time to negotiate settlement. Mr Orenge, for the respondents, suggested that the decree be paid in two or three instalments. 1. Consequently, having noted the above compromise, the Notice of Motion dated 22nd May 2026 is hereby allowed on the following terms: 2. *That an order of stay of execution of the judgement delivered on 22nd January 2026 in this suit be and is hereby granted for a limited period of ninety (90) days from the date of this ruling.* 3. *That during the said ninety (90) days period, the appellants/applicants shall pay the decretal balance in three instalments starting on the 23rd day of August, 2026.* 4. *In default of compliance with the condition in order (ii) above, the stay of execution shall automatically lapse and the respondents shall be at liberty to proceed with execution.* 5. *Costs of the application are awarded to the Respondents.* **DATED** and **DELIVERED** at **NAIROBI** this 23RD day of **JULY 202**6. In the presence of: ……………………….……………………………… # E.K. OGOLA JUDGE M/s Njoroge holding brief for Wariare for the Applicant. Orenge for the Respondent. Gisielle Muthoni, Court Assistant.