[2025] KEHC 6109 (KLR)

[2025] KEHC 6109 (KLR)

The court found that the appellant failed to discharge the burden of proving substantial loss as required under Order 42 Rule 6(2)(a) of the Civil Procedure Rules. The appellant did not dispute the respondent's financial ability to refund the decretal sum, which the respondent substantiated by indicating he operates...

Source-derived case information.

Citation
[2025] KEHC 6109 (KLR)
Parties
Appellant: Moses Oranja; Respondent: Stephen Mbaluka Mutie
Court
High Court
Court Station
High Court at Nairobi (Milimani Law Courts)
Jurisdiction
Kenya
Judgment Date
3 April 2025
Case Number
Civil Appeal E1368 of 2024
Procedural Posture
Civil Appeal / Ruling on Application for Stay of Execution Pending Appeal
Outcome
application for stay of execution dismissed with costs to the respondent
Judges
TW Cherere
Legal Topics
Stay of Execution, Substantial Loss, Money Decree, Security for Costs
Source Language
english
Civil Procedure Stay of Execution Substantial Loss Money Decree Security for Costs

Source-derived case record

Summary, issues, holding and outcome

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Parties

Moses Oranja

Appellant

Stephen Mbaluka Mutie

Respondent

Procedural Posture

Civil Appeal / Ruling on Application for Stay of Execution Pending Appeal

Legal Issues

  1. 1 Whether the appellant has demonstrated substantial loss as required for grant of stay of execution pending appeal.
  2. 2 Whether the respondent's financial ability to refund the decretal sum has been sufficiently challenged by the appellant.
  3. 3 Whether compliance with security deposit and prompt filing can override failure to prove substantial loss.

Ratio Decidendi

The court found that the appellant failed to discharge the burden of proving substantial loss as required under Order 42 Rule 6(2)(a) of the Civil Procedure Rules. The appellant did not dispute the respondent's financial ability to refund the decretal sum, which the respondent substantiated by indicating he operates a commercial establishment. Courts are generally reluctant to grant stay of execution in money decrees unless there is evidence that the respondent is unable to refund the amount if the appeal succeeds. Compliance with security deposit and prompt filing, while relevant, cannot override the mandatory requirement to prove substantial loss. As such, the application for stay of...

Court Disposition

application for stay of execution dismissed with costs to the respondent

Orders

  • The notice of motion dated 22nd November 2024 is dismissed with costs to the respondent.
  • The notice of motion dated 11th December 2024 is overtaken by events.