https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10831

**REPUBLIC OF KENYA** **IN THE HIGH COURT AT VIHIGA** **CIVIL APPEAL NO. E027 OF 2026** **JOSEPH NYARIGE...............................................................1ST APPELLANT** **JAMES MABINDA MAPAILE.................................................2ND APPELLANT** **VERSUS** **BROWN AJEGA LOMOSI......................................PLAINTIFF/RESPONDENT** **IN THE MATTER OF AN INTENDED APPEAL FROM THE RULING OF HON. J.A. AGONDA (SPM) DELIVERED ON 23RD JUNE 2026 IN VIHIGA MCCC NO. E184 OF 2021** **BETWEEN** **BROWN AJEGA LOMOSI.............................................................PLAINTIFF** **VERSUS** **JOSEPH NYARIGE..............................................................1ST DEFENDANT** **JAMES MABINDA MAPAILE................................................2ND DEFENDANT** **Coram: Before Justice R. Nyakundi** **M/S Walter & Keya Advocates LLP** **RULING** 1. Before this Court is Notice of Motion dated 8th day of June 2026, expressed to be brought under Sections 1A, 1B, 3A, 75 and 95 of the Civil Procedure Act, Order 43 Rule 1, Order 50 Rule 6, Order 51 Rule 1 of the Civil Procedure Rules, Article 50 and 159 of the Constitution and all other enabling provisions of the law. The Appellant’s seeks the following orders: 2. *Spent.* 3. *Pending the hearing and determination of this Application, there be a temporary stay of execution of the ruling and consequential orders delivered on 23rd June 2026 in Vihiga MCCC No. E184 of 2021.* 4. *The Appellants be granted leave to appeal against the ruling delivered on 23rd June 2026 by Hon. J.A. Agonda (SPM).* 5. *The annexed Memorandum of Appeal be deemed as duly filed upon payment of the requisite Court fees.* 6. *Pending the hearing and determination of the intended appeal, there be a stay of execution of the ruling and all consequential orders.* 7. *Costs of this Application abide the outcome of the intended appeal.* 8. The application is grounded on the grounds that: 9. *The learned trial magistrate delivered the impugned ruling on 23rd June 2026.* 10. *The Appellants are dissatisfied with the whole ruling and intend to appeal.* 11. *At the time of the accident, the subject motor vehicle was insured by Invesco Assurance Company Limited.* 12. *Invesco Assurance Company Limited is presently under liquidation and the Appellants' inability to immediately satisfy the decree arose from circumstances beyond their control.* 13. *The learned trial magistrate failed to properly appreciate the legal effect of the insurer's liquidation while exercising discretion in execution proceedings.* 14. *The intended appeal raises serious and arguable issues of law with overwhelming chances of success.* 15. *Unless stay is granted, execution will proceed and the intended appeal will be rendered nugatory.* 16. *The Respondent will not suffer prejudice incapable of compensation by costs.* 17. *It is in the interests of justice that the orders sought be granted.* 18. The application issupported by the sworn affidavit of Joseph Nyarige who deponed as follows: 19. *THAT I am the 1st Defendant/Appellant herein hence competent to swear this Affidavit.* 20. *THAT I have read and understood the contents of the Notice of Motion filed herewith and I swear this Affidavit in support thereof.* 21. *THAT on 23rd June 2026, Hon. J.A. Agonda (SPM) delivered a ruling in Vihiga MCCC No. E184 of 2021 directing that I settle the decretal sum of Kshs. 389,410 together with costs and interest within thirty (30) days, failing which execution would issue. Annexed hereto and marked "JN-1" is a copy of the ruling.* 22. *THAT I am dissatisfied with the whole of the said ruling and have instructed my advocates to appeal against it.* 23. *THAT I am advised by my advocates on record, which advice I verily believe to be true, that the impugned ruling is not appealable as of right and that leave of this Honourable Court is required before an appeal can be lodged.* 24. *THAT the impugned ruling was delivered on 23rd June 2026 and although I was desirous of appealing against it, I was unable to file the intended appeal within the prescribed period as I first had to obtain legal advice, secure copies of the ruling and relevant documents, and consider the legal implications arising from the liquidation of my insurer.* 25. *THAT the delay in filing the intended appeal has neither been deliberate nor inordinate but was occasioned by the foregoing circumstances and the need to obtain proper legal advice on the effect of the liquidation proceedings on my rights and obligations.* 26. *THAT at all material times, the motor vehicle involved in the accident giving rise to this suit was validly insured by Invesco Assurance Company Limited under a policy of insurance issued before the accident.* 27. *THAT I procured the said insurance in good faith with the legitimate expectation that the insurer would indemnify me against any third-party liability arising from the use of the insured motor vehicle.* 28. *THAT before the decree could be satisfied, Invesco Assurance Company Limited was placed under liquidation and consequently ceased settling claims in the ordinary course of business.* 29. *THAT my inability to immediately satisfy the decree has arisen solely because the insurer responsible for indemnifying me is under liquidation and not because I have deliberately refused or neglected to honour the decree.* 30. *THAT I brought the foregoing facts to the attention of the trial Court. However, the learned trial magistrate failed to properly consider the legal effect of the insurer's liquidation in determining the Notice to Show Cause.* 31. *THAT I am advised by my advocates on record, which advice I verily believe to be true, that the intended appeal raises serious and arguable questions of law and fact, including whether the learned trial magistrate properly exercised his discretion under Section 38 of the Civil Procedure Act and whether the execution proceedings are sustainable in light of Section 67C(11) of the Insurance Act, considering that the insurer was under liquidation.* 32. *THAT I am further advised by my said advocates, which advice I verily believe to be true, that the legal issues raised in the intended appeal were considered by the High Court in Rono & another v Wanyama (Civil Appeal E054 of 2024) KEHC 18212 (KLR), wherein the Court considered the effect of Section 67C(11) of the Insurance Act on execution proceedings against an insured whose insurer is under liquidation.* 33. *THAT I have prepared a Memorandum of Appeal setting out the grounds upon which I challenge the impugned ruling. Annexed hereto and marked "JN-2" is a copy of the Memorandum of Appeal.* 34. *THAT unless this Honourable Court grants leave to appeal and stays execution, the Respondent is likely to commence execution proceedings against me before my appeal is heard and determined.* 35. *THAT if execution proceeds, I stand to suffer substantial loss and the intended appeal will be rendered nugatory.* 36. *THAT the intended appeal has overwhelming chances of success and raises substantial issues deserving determination by this Honourable Court.* 37. *THAT the Respondent will not suffer any prejudice incapable of being compensated by an award of costs if the orders sought are granted.* 38. *THAT this Application has been brought without unreasonable delay and in good faith.* 39. *THAT it is in the interests of justice, fairness and the overriding objective of the Court that the orders sought be granted.* 40. In response to the application is the replying affidavit of Brown Ajenga Lomosi who avers as follows: 41. *THAT I am the Respondent/Plaintiff in this matter, hence competent to swear this Affidavit.* 42. *THAT the contents of the Appellant’s Notice of motion dated 11th June 2026 and have been read out and explained to me by my advocate on record and I wish to reply as follows:* 43. *THAT I have read and understood the Notice of Motion dated 11th June 2026 together with the Supporting Affidavit sworn by the Appellant in support thereof and I wish to respond thereto.* 44. *THAT save where expressly admitted herein, I deny each and every allegation contained in the Supporting Affidavit as if the same were set out herein seriatim and traversed.* 45. *THAT my advocate has advised me and which advice I believe to be true that the Application is misconceived, devoid of merit, an abuse of the process of this Honourable Court and does not satisfy the legal threshold for the grant of the orders sought as the Appellant has failed to demonstrate satisfactorily that he stands to suffer substantial loss should execution proceed.* 46. *THAT I also wish to state that this matter concerns execution for a money decree and my advocate has advised me and which advice I believe to be true that it has been restated in several judicial pronouncements that Courts should not be quick to grant orders of stay of execution of money decrees.* 47. *THAT I also wish to state that the Appellant has engaged in unending tactics to frustrate the execution of the decree as stated in my affidavit dated …. which I filed in the primary suit and annexed the relevant evidence.* 48. *THAT the contents of paragraph 6 are denied for being untrue. The Applicant was all along represented by the same advocate who has filed this Application. The documents in the primary case including the Ruling were available on the judiciary CTS and the explanation that the Applicant was looking for copies is not plausible* 49. *THAT the contents of paragraph 7 are not true and are denied for the reason that the liquidation of Invesco Assurance Company are not relevant to this suit as the Applicant never referred the primary suit to the said company for representation nor was there any evidence that the company was involved in the matter* 50. *THAT the contents of paragraphs 8 and 9 are not true as no such policy was ever availed in the primary suit. Even if the Applicant held such a policy, he did not derive any benefit from it as the matter case was never referred to the insurance company. Nothing would have been easier for the Applicant than to annex the evidence of such insurance policy or communication between him and the said company.* 51. *THAT the contents of paragraph 10 and 11 are not true and are denied for the reason the Applicant never involved the insurance company nor did he submit any claim to Policyholders Compensation Fund are required and within the time that was required in the Notice. No evidence has been availed by the Applicant to prove that indeed he submitted the claim. (annexed is the Notice marked BA 2 & 3)* 52. *THAT the contents of paragraph 12 are not true and are denied as the trial magistrate correctly analysed all the issues and the relevant law before arriving at the Ruling which allows no room for appeal* 53. *THAT in response to paragraph 13 and on the advice of my advocate which I believe is true, I state that the Ruling as delivered was valid and based on the discretion of the trial magistrate which was exercised judiciously and the sections of the law as cited by the Applicant do not avail the Applicant any remedy* 54. *THAT in response to paragraphs 14, my advocate had advised me and which advice I believe to be true that there is nothing in the primary suit and even in this Application to demonstrate that the Applicant is protected by the principles in the Rono case (as cited by the Applicant or Section 67C(11) of the Insurance Act as the Appellant never involved the said company in the proceedings.* 55. *THAT in response to paragraph 15, my advocate has advised me and which advice I believe to be true that the appeal as presented is devoid of any triable issues and the Applicant is only bent on making me to enjoy the fruits of my judgement thereby making it a paper judgement.* 56. *THAT in response to paragraph 16 and 17 and on the advice of my advocate and which I believe to be true, I state that Courts have consistently held that commencement of execution in not a reason for grant of stay of execution.* 57. *THAT in response to paragraph 18 and on the advice of my advocate which I believe to be true, Courts have consistently stated that substantial loss must be demonstrated but in this case the Applicant has even attempted to demonstrate such loss* 58. *THAT the contents of paragraph 19 are not true and are denied. To the contrary, it is me who continues to suffer prejudice as I have been denied the fruits of my judgement from 19th August 2022 when the judgement was delivered. It is now 47 months from the time the judgement was delivered and I have suffered and continue to suffer the fruits of my judgement due to the Applicants refusal to comply. Instead, he continues to file numerous applications in order to avoid settling the judgement.* 59. *THAT the contents of paragraph 20 and 21 are not true and are denied* 60. *THAT despite seeking the equitable remedy of stay of execution, the Appellant has neither deposited any portion of the decretal sum nor offered any security whatsoever for the due performance of the decree as required by law.* 61. *THAT the deliberate to offer security demonstrates that the present Application has not met the mandatory conditions governing the grant of an order of stay pending Appeal.* 62. *THAT I am advised by my advocates on record, which advice I verily believe to be true, that the existence of an intended appeal or the Appellant's dissatisfaction with the decision of the trial Court does not, of itself, entitle the Appellant to an order of stay of execution.* 63. *THAT should this Court be minded to grant the order of stay, the same should be conditional upon the Appellant depositing the entire decretal sum KSHS 389,410.00 together with the Auctioneers costs of Kshs 191,127.06 should be deposited in a joint interest earning account in the names of both advocates within a period of Seven days from the date of the order, in default of which the stay should automatically lapse and execution to proceed against the Appellant's property (attached is the Auctioneer’s fee marked BA 4)* 64. *THAT I swear this Affidavit in opposition to the Notice of Motion and pray that the same be dismissed with costs to the Respondent.* 65. This appeal was set to be canvased by way of written submissions but on checking on the online portal it was only the Respondent who had complied by filing written submissions dated 17th of July 2026. In the body of the submissions shared with the Court learned Counsel tackled three predominant issues namely; 1. *Whether the Applicant has demonstrated substantial loss* 2. *Whether the Applicant has offered sufficient security for the decree* 3. *Whether the Applicant’s personal liability is extinguished upon liquidation of the insurer.* 66. It was learned Counsel contention that grounded on Order 42 Rule 6(2)(a) of the CPR and illuminating principles **Kenya Shell Ltd v Benjamin Karuga Kibiru & Another [1986] eKLR** and **Kirimi & Another v Gichangi (Civil Appeal E079 of 2025) [2025] KEHC,** the condition precedents outlined in the Rule cited above have not been discharged by the Applicant and the motion on record should be dismissed. 67. In the instant case the Applicant is aggrieved with the decision of the Court below as demonstrated by the grounds in the memorandum of appeal which reads as follows: 68. *The learned trial magistrate erred in law and fact in allowing the Notice to Show Cause.* 69. *The learned trial magistrate erred in law by failing to properly consider the effect of the liquidation of Invesco Assurance Company Limited on the Appellants' liability.* 70. *The learned trial magistrate erred in law by failing to apply Section 67C(11) of the Insurance Act.* 71. *The learned trial magistrate erred in law and fact by finding that the Appellants had failed to show sufficient cause against execution.* 72. *The learned trial magistrate erred in law by improperly exercising his discretion under Section 38 of the Civil Procedure Act.* 73. *The learned trial magistrate failed to properly evaluate the evidence and submissions before the Court.* 74. *The ruling was against the law and the evidence.* 75. *WHEREFORE, the Appellants pray that this Honourable Court:* 1. *Allows the appeal.* 2. *Sets aside the Ruling and Orders delivered on 23rd June 2026.* 3. *Dismisses the Notice to Show Cause dated 1st April 2025.* 4. *Awards the costs of this appeal and of the proceedings before the trial Court to the Appellants.* 76. It is now settled law as demonstrated by the Court in the case of Stephen **Wanjohi v Central Glass Industries Ltd Civil Case No. 6726 of 1991** in which it was held that: 1. *For the Court to order a stay of execution there must be:* 1. *Sufficient cause;* 2. *Substantial loss;* 3. *No unreasonable delay; and* 4. *Security.* 2. *The grant of stay is discretionary and the High Court is also a Court of equity.* 3. *It is not just to deny a successful party the benefit of judgment because he is poor. The Court does not make a practice of depriving a successful litigant of the fruits of his litigation and locking up funds to which, prima facie he is entitled pending appeal*. (See also **George Oraro v Kenya Television Network Civil Case 151 of 1992** and **Vishram Ravji Halai v Thornton & Turpin [1990] KLR 365)** 77. It is also the expectation of the law on stay of execution pending appeal that the aim of the Court is to make sure, in an even handed manner that the appeal would not be prejudiced and that the decretal sum would be available if required. The Respondent is not entitled, for instance, to make life difficult for the Applicant, so as to tempt him into settling the appeal. *The process of giving security is one, which arises constantly. So long as the opposite party can be adequately protected, it is right and proper that security should be given in a way, which is least disadvantageous to the party giving the security. It may take many forms. Bank guarantee and payment into Court are but two of them. So long as it is adequate, then the form of it is a matter, which is immaterial. In an application for stay pending appeal the Court is faced with a situation where judgment has been given. It is subject to appeal. It maybe affirmed or it may be set aside. The Court is concerned with preserving the rights of both parties pending that appeal. It is not the function of the Court to disadvantage the defendant while giving no legitimate advantage to the plaintiffs. It is the duty of the Court to hold the ring even-handedly without prejudicing the issue pending the appeal. For that purpose, it matters not whether the plaintiffs are secured in one way rather than another. It would be easier for the defendants or if for any reason they would prefer to provide security by a bank guarantee rather than cash. There is absolutely no reason in principle why they should not do so. See* ***Rosengrens Ltd v Safe Deposit Centres Ltd [1984] 3 All ER 198*** *and* ***Nduhiu Gitahi v Warungongo [1988] KLR 621).*** 78. What can be appreciated from the above authorities is that the core principles established by Kenyan’s Court on stay of execution pending appeal include the following inter alia: 1. A stay of execution pending an appeal is not automatic even within the purposive interpretation of the constitution imperative on the right of an appeal. 2. There may be justification under Art 24 of the Constitution to have that right limited as indicative of certain provisions in the statute that an appeal can only be lodged to the superior Court based on a point of law or in certain cases leave has got to be applied for although now in succession matters the apex Court has clarified that position that leave to appeal is not a necessity. 3. **The "Nugatoriness" Test:** The Applicant must prove that without a stay, the eventual success of the appeal will be rendered meaningless (e.g., the subject matter of the dispute will be destroyed, or the winning party will be unable to refund the judgment sum). 4. **Fruits of Litigation:** Courts adhere to the established common law principle (rooted in English cases like *Monk v Bartram*) that a successful litigant should not be easily deprived of the "fruits" of their judgment 5. **Special Circumstances:** The fact that an appellant believes they have a reasonable chance of success does not, on its own, constitute a special circumstance. 6. **Security for the Judgment:** The Court of Appeal frequently attaches conditions to the stay, such as requiring the Applicant to deposit the judgment sum in a joint, interest-bearing escrow account managed by solicitors to protect the Respondent's interests. 79. I have reviewed the notice of motion, the affidavit evidence in support together with the replying affidavit by the Respondent and further the submission on the legal typology by Learned Counsel for the Respondent and I am of the consider view that there is merit to grant stay of execution of the ruling of the Court below dated 23rd day of June 2026 on condition that decretal sum of Kshs 389,410/- be deposited with the Deputy Registrar of the High Court within 45 days from today’s ruling. That further for purpose of expediency the appellants shall file the record of appeal within 21 days from today’s ruling and the appeal shall be deemed to have been admitted for hearing and the procedural protocols of having it canvassed by way of written submission shall take effect after expiry of 21 days ordered above by this Court. That thereafter each legal Counsel on record seized of instructions to represent the respective parties to this appeal shall simultaneously filed his/her submissions on the predominant issues raised on the memorandum of appeal and toward that end reasonably so a judgement has been set on delivery on 16th September 2026. For avoidance of doubt the orders on stay of execution shall lapsed in the event the appellants default in depositing the decretal sum before the Deputy Registrar of the High Court within the scheduled period of 21 days. That in terms of compliance this matter shall be mentioned before the Deputy Registrar of the High Court 17th August 2026. It is so ordered. **DATED, SIGNED AND DELIVERED THIS 20TH DAY OF JULY 2026.** **…………………………..………** **R. NYAKUNDI** **JUDGE**