Old Mutual General Insurance Kenya Ltd v Jattani (Civil Appeal E004 of 2026) [2026] KEHC 10034 (KLR) (Civ) (9 July 2026) (Ruling)

Old Mutual General Insurance Kenya Ltd v Jattani (Civil Appeal E004 of 2026) [2026] KEHC 10034 (KLR) (Civ) (9 July 2026) (Ruling) Neutral citation: [2026] KEHC 10034 (KLR) Republic of Kenya In the High Court at Isiolo Civil Civil Appeal E004 of 2026 SC Chirchir, J July 9, 2026 Between The Old Mutual General Insurance Kenya Ltd Appellant and Hussein Rob Jattani Respondent Ruling 1.What is coming for determination is the Appellant’s/ Applicant’s Notice of Motion dated 23rd February, 2026 brought under Sections 1A, 1B and 3A of the Civil Procedure Act, Order 22 Rule 22, and Order 42 Rules 6 and 51 (1) of the Civil Procedure Rules. It seeks orders as follows:1.(Spent.)2.(spent)3.There be a stay of execution of the decree emanating from the judgement delivered on 30th January, 2026, in ISIOLO CMCC NO. E127 OF 2024: Hussein Rob Jattani -vs- The Old Mutual General Insurance Kenya Ltd pending the hearing and determination of the Appeal.4.Costs of this application be in the cause. The Applicant’s Case 2.The Application is supported by the affidavit of Frankline Nyaga, the Senior Legal Officer of the Applicant, sworn on 23rd February, 2026. The Applicant’s case is the trial court found the Applicant liable to the respondent and ordered to pay him Kshs. 1,094,600/= plus costs and interest. 3.The Applicant was dissatisfied with the said judgment and has preferred an appeal, contending that the trial magistrate erred in law and fact by failing to appreciate that the Respondent violated insurance policy terms, by using the motor vehicle for hire and reward, rather than for domestic purposes. 4.The Applicant further contends that it faces an imminent danger of execution as the 30-day stay granted by the trial court is set to lapse. They aver that they stand to suffer substantial loss because execution would involve attaching the Applicant’s property, including computers and office accessories, which are vital tools of trade. 5.The Applicant maintains that the appeal is arguable with a high likelihood of success and that they are ready to provide reasonable security as a condition for the stay. The Respondent’s Case 6.The Respondent opposes the application through a Replying Affidavit sworn on 25th February, 2026. The Respondent’s case is that he is a lawful decree -holder following the judgment of 30th January, 2026, and that the Applicant has not paid any part of the decretal amount. 7.He contends that the application is an abuse of court process because the deponent, Frankline Nyaga, failed to annex written authority to swear the affidavit on behalf of the company. 8.The Respondent further asserts that the appeal has no merits and is merely intended to delay justice. He maintains that he is a businessman with substantial assets, including livestock and a motor vehicle valued at Kshs. 3,300,000/=, and is therefore capable of refunding the decretal sum should the appeal succeed. 9.He finally states that the Applicant has failed to meet the threshold for a stay of execution, pending Appeal. 10.The Application was heard through written submissions. Applicant’s Submissions 11.The Applicant submits that under Order 42, Rule 6 (2) of the Civil Procedure Rules, a stay may be granted if the court is satisfied that substantial loss may result; if the application is made without unreasonable delay; and security is provided. It is the Applicant’s contention that it has satisfied all the above stated conditions. 12.It is further submitted that the appeal is not only arguable, but has a high likelihood of success, primarily because the trial court’s award of Kshs. 1,094,600/= was based on a wrong analysis of the evidence and a total disregard for the Applicant’s counterclaim regarding the Respondent’s violation of the insurance policy’s usage clause. 13.It is argued that the stay of execution is necessary to preserve the substratum of the appeal and prevent the same from being rendered nugatory. 14.On substantial loss, the Applicant submits that the Respondent’s financial means are unknown, and there is a legitimate apprehension that the Respondent would be unable to refund the substantial decretal sum should the appeal succeeds. To buttress this submission, the Applicant relies on the decision of Justice J.G. Nyamu in Johnson Mwiruti Mburu versus Samuel Macharia Ngure(2004) eKLR, where the Judge went on to grant a stay although a substantial money decree was the subject matter. 15.The Applicant further addresses the court's discretion by citing the decision of Justice G.V. Odunga in Victory Construction v BM (a minor suing through next friend one PMM)(2019) eKLR, and submitting that the court must interpret precedents in a manner that gives effect to the overriding objective of proportionality and equality of arms. The Applicant reproduces the following excerpt from that decision to guide this court:“...What the Court ought to do when confronted with such circumstances is to consider the twin overriding principles of proportionality and equality of arms which are aimed at placing the parties before the Court on equal footing and see where the scales of justice lie considering the fact that it is the business of the court, so far as possible, to secure that any transitional motions before the Court do not render nugatory the ultimate end of justice.”. 16.Regarding the Respondent’s claim in his replying affidavit that he is a person of means, the Applicant submits that such averments are mere assertions unsupported by proof of ownership of the source of the stated wealth. Reliance is placed on the Court of Appeal decision in National Industrial Credit Bank Ltd v Aquinas Francis Wasike & another (2006)eKLR, where the court held:“This Court has said before and it would bear repeating that while the legal duty is on an applicant to prove the allegation that an appeal would be rendered nugatory because a respondent would be unable to pay back the decretal sum, it is unreasonable to expect such an applicant to know in detail the resources owned by a respondent or the lack of them. Once an applicant expresses a reasonable fear that a respondent would be unable to pay back the decretal sum, the evidential burden must then shift to the respondent to show what resources he has...”. 17.Finally, the Applicant submits that the application was filed without unreasonable delay, having been lodged on 23rd February, 2026, while the trial court's initial 30-day stay was still in force. The Applicant reiterates its readiness and willingness to comply with any conditions the court may impose, including the provision of reasonable security for the due performance of the decree, to ensure the rights and interests of both parties are protected without bias Respondent’s Submissions 18.The Respondent urges this court to find that the application is devoid of merit and represents a calculated attempt to delay the course of justice, and deny a successful litigant the fruits of his judgment. It is the Respondent’s case that he holds a valid money decree for Kshs. 1,094,600/= plus costs and interest, which remains entirely unsatisfied to date. 19.The Respondent submits that the Applicant has failed to satisfy the mandatory conditions set out in Order 42 Rule 6(2) of the Civil Procedure Rules. It is argued that the Applicant has neither deposited any security for the due performance of the decree nor paid any portion of the decretal sum as a sign of good faith. 20.The Respondent further challenges the competence of the application, calling it as an abuse of court process on the grounds that the deponent of the supporting affidavit, Francis Nyaga, failed to annex written authority from the Applicant company to swear the same. 21.The Respondent maintains that the application is grounded on extraneous issues and fails to establish a basis for denying him the enjoyment of his lawfully obtained judgment. 22.Consequently, the Respondent urges the court to dismiss the application with costs, or in the alternative, if the court is inclined to exercise its discretion, to issue only a conditional stay that requires immediate partial payment and the provision of adequate security Analysis and Determination 19.The power of the court to grant a stay of execution pending appeal is donated by Order 42 Rule 6(2) of the Civil Procedure Rules, which provides that no order for stay shall issue unless the court is satisfied that:a.The application has been made without unreasonable delay;b.The applicant will suffer substantial loss unless the order is made; andc.The applicant has furnished such security as the court orders for the due performance of the decree. 20.The above conditions are cumulative and must all be present before the court can exercise its discretion in favour of an Applicant. 21.The above principles have the subject of numerous past decisions of the superior courts . In the case of Butt v Rent Restriction Tribunal [1979] KECA 22 (KLR) the Court of Appeal held that the power to grant stay is discretionary and ought to be exercised in such a manner as not to prevent an appeal ,while at the same time ensuring that a successful litigant is not unjustly deprived of the fruits of his judgment. 22.The first issue is whether the application was brought without unreasonable delay. Judgment in the subordinate court was delivered on 30th January, 2026, while the present application was filed on 23rd February, 2026. The application was therefore lodged about 3 weeks after delivery of judgment and before expiry of the thirty-day stay granted by the trial court. In the circumstances, I am satisfied that there was no unreasonable delay in approaching this court. 23.The next consideration is whether the Applicant has demonstrated that it stands to suffer substantial loss if stay is declined. Substantial loss is the cornerstone of an application for stay pending appeal. In Kenya Shell Limited v Benjamin Karuga Kibiru & anorther [1986] KECA 94 (KLR), the Court of Appeal observed that substantial loss is what has to be prevented because it is the very essence of preserving the appeal. 24.The Applicant submits that unless stay is granted, execution may issue against its assets, including office equipment and computers necessary for its day-to-day operations. It further expresses apprehension that should the decretal sum be paid out, the Respondent may not be in a financial position to refund the same if the appeal ultimately succeeds. 25.On his part, the Respondent has deponed that he is a businessman with substantial assets, including livestock and a motor vehicle, all valued at Kshs. 3,300,000/=, and is therefore capable of refunding the decretal amount, in the event that the Appeal succeeds 26.The law on evidential burden in such circumstances is now settled. In National Industrial Credit Bank Ltd v Aquinas Francis Wasike & another [2006] KECA 333 (KLR) the Court of Appeal held that although the legal burden initially rests upon an applicant, it would be unreasonable to expect the applicant to know the detailed financial means of the respondent. Once an applicant expresses a reasonable apprehension that the decretal sum may not be recoverable, the evidential burden shifts to the respondent to demonstrate otherwise. 27.In the present case, while the Respondent asserts that he possesses sufficient assets, those assertions remain unsupported by any documentary proof. Consequently, this court is not persuaded that the Respondent has satisfactorily discharged the evidential burden of allaying the Applicant’s apprehension. In the event the decretal sum is paid out and the appeal succeeds, there exists a real possibility that recovery may prove difficult, thereby rendering the appeal nugatory. 28.The decree herein is a money decree. Ordinarily, the mere fact that a decree is monetary does not automatically justify a stay of execution. However, where there exists uncertainty regarding the respondent's ability to refund the decretal amount, the court is entitled to intervene so as to preserve the subject matter of the appeal. 29.The court has also considered the Respondent's contention that the supporting affidavit is incompetent for want of written authority authorizing the deponent to swear the affidavit on behalf of the Applicant company. 30.I do not find merit in that objection. A corporation necessarily acts through its officers, and where an officer competent to depone to matters within his knowledge swears an affidavit on behalf of the company, failure to annex a written authority does not render the affidavit incompetent. ( see the Court of Appeal decision in Makupa Transit Shade Limited & another v Kenya Ports Authority & another [2015] KECA 721 (KLR) 31.The final consideration is whether the Applicant has offered security for the due performance of the decree. The Applicant has indicated its willingness to comply with any security that this court may order. The nature and extent of security is at the discretion of the court. 32.In the end , the court is satisfied that the Applicant has met the threshold set out under Order 42 Rule 6(2) of the Civil Procedure Rules. 33.Consequently, the following orders are hereby issued:a.)There shall be a stay of execution of the judgment and decree in Isiolo CMCC No. E127 of 2024 pending the hearing and determination of the appeal herein.b).The stay is conditional upon the Applicant depositing the decretal sum of Kshs. 1,094,600/=, in an interest-earning account in the joint names of the respective Advocates within Fourty five days (45 ) days from the date of this Ruling.c).In default of compliance with order (b) above, the stay granted herein shall automatically lapse without the necessity of any further order of the court.d).Costs of this Application shall abide the outcome of the appeal. DATED, SIGNED AND DELIVERED AT ISIOLO, THIS 9TH DAY OF JULY 2026.S. CHIRCHIRJUDGE.In the presence of:Barako Huka- Court AssistantMs. Oteko for the AppellantMs. Bett for the Respondent