https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8257

Oricho v Makongo & 2 others (Civil Appeal E094 of 2025) [2026] KEHC 8257 (KLR) (12 June 2026) (Ruling) Neutral citation: [2026] KEHC 8257 (KLR) Republic of Kenya In the High Court at Siaya Civil Appeal E094 of 2025 DK Kemei, J June 12, 2026 Between Carol Oricho Applicant and Wycliffe Batulumayo Makongo 1st Respondent Ronald Chitwa 2nd Respondent and Roban Auctioneers Interested Party (Being an appeal against the Judgement of the Honourable John Obeto Manasses, SRM in Ukwala MCCC E012 OF 2025 delivered on 30th September, 2025) Ruling 1.The Applicant/Appellant filed an application dated 5/3/2026 seeking the following reliefs; -i.Spent.ii.Spent.iii.This Honourable Court be pleased to stay the execution of the judgment and decree of the trial Court in Ukwala MCCC E012 of 2025 pending the hearing and determination of the appeal hereiniv.The costs of this application be provided for. 2.The application is based on the grounds setout thereunder and by the supporting affidavit of the Appellant/Applicant sworn on even date. The Appellant/Applicant’s gravamen is inter alia;- that the Applicant and the Respondent were embroiled in a civil dispute before the Magistrates Court in Ukwala MCCC E012 of 2025 which judgment in the matter was delivered on 30th September 2025; that the Applicant being dissatisfied with the judgment of the Court immediately lodged this instant appeal on 29/10/2025; that the 1st Respondent later filed a bill of costs which bill was assessed by the Court at kshs 185,000/=; that the Respondent in conjunction with Roban Auctioneers served a proclamation notice upon the Applicant on 24/2/2026; that unless the orders sought are issued by this Court, the Applicant/Appellant stands to be deprived of his items before the appeal is heard and determined, rendering it null and void; that the appeal raises triable issues with high chances of success; that the Respondent stands to suffer no prejudice if the orders prayed for are issued as he will still enjoy the fruits of the judgment if the appeal is not successful. 3.The application dated 5/3/2026 was canvassed via written submissions. 4.The Applicant submitted that the application is brought under the provisions of Order 42 Rule 6 (1) & (2) of the Civil Procedure Rules. The counsel submitted that the issue for determination is whether or not the Applicant has satisfied the conditions imposed by the Rules. 5.It was submitted that in as much as an order for stay of execution is solely the discretion of the Court, the Courts are guided by Order 42 Rule 6 of the Civil Procedure Rules which sets out the conditions to be met before a Court is convinced to grant such orders. That Order 42 Rule 6 provides:(1)No appeal or second appeal shall operate as a stay of execution of proceedings under a decree or order appealed from except in so far as the court appealed from may order but, the court appealed from may for sufficient cause order stay of execution of such decree or order, and whether the application for such stay shall have been granted or refused by the court appealed from, the court to which such appeal is preferred shall be at liberty, on application being made, to consider such application and to make such order thereon as may to it seem just, and any person aggrieved by an order of stay made by the court from whose decision the appeal is preferred may apply to the appellate court to have such order set aside.”That Order 42 Rule 6(2) goes ahead to list the conditions to be met before an order for stay is granted. It provides thus: “No order for stay of execution shall be made under subrule (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; andb.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.”Reliance was placed in the classic case of Butt vs Rent Restriction Tribunal [1979] where the Court of Appeal stated what ought to be considered in determining whether to grant or refuse stay of execution pending appeal. The court said that:a.)The power of the court to grant or refuse an application for a stay of execution is discretionary; and the discretion should be exercised in such a way as not to prevent an appeal.b.Secondly, the general principle in granting or refusing a stay is, if there is no other overwhelming hindrance, a stay must be granted so that an appeal may not be rendered nugatory should the appeal court reverse the lower court’s decision.c.Thirdly, a judge should not refuse a stay if there are good grounds for granting it merely because, in his opinion, a better remedy may become available to the applicant at the end of the proceedings.d.Finally, the Court in exercising its discretion whether to grant or refuse an application for stay will consider the special circumstances and its unique requirements. The court in exercising its powers under Order XLI Rule 4(2) (b) of the Civil Procedure Rules, can order security upon application by either party or on its own motion. Failure to put security of costs as ordered will cause the order for stay of execution to lapse.” 6.As regards the issue of whether the Applicant stands to suffer substantial loss if the orders sought is not granted, it was submitted that the applicant/appellant stands to suffer substantial loss because the 1st respondent and the interested party already made an application for execution before the Court in Ukwala. That same application has been attached in paragraph 9 of her supporting affidavit sworn on 5th March, 2026. Furthermore, the respondents’ financial ability is not known to her and is therefore unlikely to refund the judgement sum if paid out to him to the detriment of the applicant/appellant. She provided evidence of the substantial loss by attaching the proclamation notice. That this is a money decree and that the applicant is required to demonstrate what loss, if any she stands to suffer. Reliance was placed in the case of Shell Limited -vs- Kibiru & Another 1986 [KLR] 410. 7.As regards the issue of whether the application was made without undue delay, it was submitted that the judgement in the lower Court at Ukwala was delivered on 30th September, 2025 while the instant appeal was lodged within the time stipulated by statute on 29th October 2025 and that the instant application filed on 17th March, 2026. It was submitted that the application was filed timeously and within a reasonable period. 8.As regards the aspect of security, it was submitted that the Applicant is ready and willing to provide the same. Reliance was placed in the case of Gianfranco Manenthi & Another Vs Africa Merchant Assurance Co. Ltd [2019] eKLR where the court observed:- “The applicant must show and meet the condition of payment of security for due performance of the decree. Under this condition, a party who seeks the right of appeal from a money decree of the lower court for an order of stay must satisfy this condition on security. In this regard, the security for due performance of the decree under Order 42 Rule 6(1) of the Civil Procedure Rules, it is trite that the winner of litigation should not be denied the opportunity to execute the decree in order to enjoy the fruits of his judgment in case the appeal falls. Further, Order 42 should be seen from the point of view that a debt is already owed and due for payment to the successful litigant in a litigation before a court which has delivered the matter in his favour. This is therefore to provide a situation for the court that if the appellant fails to succeed on appeal there could be no return to status quo on the part of the plaintiff to initiate execution proceedings where the judgment involves a money decree. The court would order for the release of the deposited decretal amount to the respondent in the appeal….Thus, the objective of the legal provisions on security was never intended to fetter the right of appeal. It was also put in place to ensure that courts do not assist litigants to delay execution of decrees through filing vexatious and frivolous appeals. In any event, the issue of deposit of security for due performance of decree is not a matter of willingness by the applicant but for the court to determine…” 9.It was submitted that the applicant vide paragraph 13 of her supporting affidavit states that she is ready and willing to abide by any conditions the Court may set for the issuance of the orders sought including such security as the Court may order for the performance of the decree. That the issue of security is discretionary and it is upon the Court to determine the same in that the Court is guided by the right to appeal vis-à- vis the respondent’s rights to enjoy the fruits of the judgement. In Butt -vs- Rent Restriction__ Tribunal [1979],______ the Courts have held that the general principle in granting or refusing a stay is, if there is no other overwhelming hindrance, a stay must be granted so that an appeal may not be rendered nugatory should the appeal court reverse the lower court’s decision. That the applicant believes that there are high chances the appeal succeeds. That the power of the court to grant or refuse an application for a stay of execution is discretionary; and the discretion should be exercised in such a way as not to prevent an appeal. It was urged that the application be allowed to enable the parties move to the substantive appeal. 10.The Respondent relied on his replying affidavit in opposition to the application. It was submitted that the principles guiding the court to grant the orders of stay of execution of the decree are well settled and which are provided for under Order 42 Rule 6 (2) of the Civil Procedure Rules which provides as follows;No order for stay of execution shall be made under 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; andb)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. 11.In Vishram Ravji Halai vs Thyornton & Turpin Civil application No. Nai.15 of 1990 (1990) KLR 365, the Court of Appeal held that whereas the Court of Appeal's power to grant a stay pending appeal is unfettered, the High Court's jurisdiction to do so under Order 42 Rule 6 of the Civil procedure rules is fettered by three conditions namely, establishment of a sufficient cause, satisfaction of substantial loss and the furnishing of a security. Further, the application must be made without unreasonable delay. To the foregoing we would add that the stay may only be granted for sufficient cause and that the court in deciding whether or not to grant the stay and that in light of the overriding objective stipulated in sections 1A and 1B of the Civil Procedure Act, we are aware the court is no longer limited to the foregoing provisions. The courts are now enjoined to give effect to the overriding objective in the exercise of its powers under the Civil Procedure Act or in the interpretation of any of its provisions. 12.It was submitted that all the pre-overriding objective decisions must now be looked at in the light of the said provisions. This does not necessarily imply that all precedents are ignored but that the same must be interpreted in a manner that gives effect to the said objective. It was submitted that what is expected of the court is to ensure that the aims of the overriding objective as stipulated in section 1A as read with section 1B of the Civil Procedure Act are attained. 13.It was submitted that it is important that the court takes into consideration the likely effect of granting the stay on the proceedings in question. In other words, that the court ought to weigh the likely consequences of granting the stay or not doing so and lean towards a determination which is unlikely to lead to an undesirable or absurd outcome. 14.It was submitted that what the court ought to do when confronted with such circumstances is to consider the twin overriding principles of proportionality and equality 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. 15.It was further submitted that the court in exercising its discretional power should therefore always opt for the lower rather than the higher risk of injustice. See the case of Suleiman versus Amboseli Resort Limited (2004) 2 KLR 589. This was also the position in Jason Nguba Kagu & 2 others versus Intra Africa Assurance Co. Limited (2014) eKLR where it was held that;The possibility that substantial loss will occur if an order of stay of execution is not granted is the cornerstone of the jurisdiction of court in granting stay of execution pending appeal under order 42 rule 6 of the Civil Procedure Rules. The court arrives at a decision that substantial loss is likely to occur if stay is not made by performing a delicate balancing act between the right of the respondent to the fruits of his judgment and the right of the applicant on the prospects of his appeal. Even though many say that the test in the High Court is not that of "the appeal will be rendered nugatory", the prospects of the appellant to his appeal invariably entails that his appeal should not be rendered nugatory. The substantial loss therefore will occur if there is a possibility the appeal will be rendered nugatory. Here, it is not really a question of measuring the prospects of the appeal itself but rather whether by asking the applicant to do what the judgment requires, he will become a pious explorer in the judicial process. 16.Further reliance was placed in Samvir Trustee Limited vs Guardian Bank Limited Nairobi (Milimani) HCCC 795 of 1997 where Warsame J (as he then was) heldEvery party aggrieved with a decision of the High Court has a natural and undoubted right to seek the intervention of the Court of Appeal and the court should not put unnecessary hindrance to the enjoyment and exercise of that right by the defendant. A stay would be overwhelming hindrance to the exercise of the discretionary powers of the court.....The court in considering whether to grant or refuse an application for stay is empowered to see whether there exist any special circumstances which can sway the discretion of the court in a particular manner. But the yardstick is for the court to balance or weigh the scales of justice by ensuring that an appeal is not rendered nugatory while at the same time ensuring that a successful party is not impeded from the enjoyment of the fruits of his judgment. It is a fundamental factor to bear in mind that, a successful party is prima facie entitled to the fruits of his judgment; hence the consequence of a judgment is that it has defined the rights of a party with definitive conclusion. The respondent is asserting that matured right against the applicant/defendant... For the applicant to obtain a stay of execution, it must satisfy the court that substantial loss would result if no stay is granted. It is not enough to merely put forward mere assertions of substantial loss, there must be documentary evidence to support such contention. It means the court will not consider assertions of substantial loss on the face value but the court in exercising its discretion would be guided by adequate and proper evidence of substantial loss.... Whereas there is no doubt that the defendant is a bank, allegedly with substantial assets, the court is entitled to weigh the present and future circumstances which can destroy the substratum of the litigation.....At the stage of the application for stay of execution pending appeal the court must ensure that parties fight it out on a level playing ground and on equal footing in an attempt to safeguard the rights and interests of both sides.The overriding objective of the court is to ensure the execution of one party's right should not defeat or derogate the right of other. The court is therefore empowered to carry out a balancing exercise to ensure justice and fairness thrive within the corridors of the court. Justice requires the court to give an order of stay with certain conditions." 17.Also in in Kenya Shell Limited versus Kiburu (1986) KLR 410 at page 416 Platt Ag. JA expressed himself as follows;It is usually a good rule to see if Order XL1 Rule 4 of the Civil Procedure Rules can be substantiated. 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 for 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."In the same case, Gachuhi, AG.JA (as he then was) at 417 held;It is not sufficient by merely stating that the sum of Kshs.20,380.00 is a lot of money and the applicant would suffer loss if the money is paid. What sort of loss would this be? In an application of this nature, the applicant should show the damages it would suffer if the order for stay is not granted. By granting a stay would mean that status quo should remain as it were before judgment. What assurance can there be of appeal succeeding? On the other hand, granting the stay would be denying a successful litigant of the fruits of his judgment.”Further in the case of Tropical Commodities Suppliers Ltd and Others vs. International Credit Bank Limited (in liquidation) (2004) E.A LR 331, the court defined substantial loss in the sense of Order 42 Rule 6 as follows;....Substantial loss does not represent any particular mathematical formula. Rather, it is a qualitative concept. It refers to any loss, great or small, that is of real worth or value as distinguished from a loss without value or a loss that is merely nominal......" 18.Substantial loss may also be equated to the principle of negation of the success of the intended appeal. Dealing with the latter, it was held in the case of Kenya Airports Authority versus Mitu-Bell Welfare Society & another (2014) eKLR that;The nugatory limb is meant to obviate the spectre of a meritorious appeal, when successful, being rendered academic the apprehended harm, loss or prejudice having come to pass in the intervening period. Our stay of execution jurisdiction is meant to avoid such defeatist eventualities in deserving cases." 19.It was further held in the case of Tabro Transporters Ltd vs. Absalom Dova Lumbasi (2012) eKLR thus;The discretionary relief of stay of execution pending appeal is designed on the basis that no one would be worse off by virtue of an order of the court; as such order does not introduce any disadvantage but administers the justice that the case deserves. This is in recognition that both parties have rights; the appellant to his appeal which includes the prospects that the appeal will not be rendered nugatory and the decree holder to the decree which includes full benefits under the decree. The court in balancing the two competing right focuses on their reconciliation which is not a question of discrimination." 20.Learned counsel submitted that they agree with the position adopted in Bungoma High Court Misc. Application No. 42 of 2011 – James Wangalwa & another vs. Agnes Naliaka Chesoto 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. This is what substantial loss would entail." 21.Further reliance was placed in the decision of the High Court in John Gachanja Mundia Vs. Francis Murira Alias Francis Muthika & another (2016) eKLR that;There is no doubt the applicant has shown that substantial loss would occur unless stay is granted. However, I will be guided by a greater sense of justice. Courts of law have said that with the entry of the overriding principle in our law and the anchorage of substantive justice in the constitution as a principle of justice, courts should always take the wider sense of justice in interpreting the prescriptions of law designed for grant of relief." 22.It was submitted that there is no substantial loss that has been demonstrated by the applicant to warrant stay of execution pending the hearing and determination of the appeal. 23.It was submitted that should the court be inclined to grant the orders sought, then it should compel the Applicant to pay half of the decretal sum being Kshs.264,887.5 to the 1st respondent and deposit the remaining half of the decretal sum of Khs.264,887.5 in a joint interest earning bank account in a reputable bank within 10 days from the date of the ruling otherwise in default the orders of stay be vacated and execution of the decree to issue against the applicant for the whole amount. That the applicant to pay the auctioneer's costs accruing at the time of proclamation which may be agreed upon between the applicant and the auctioneer or be taxed in court forthwith otherwise in default we further pray that the application or any orders of stay of execution that would have been given in her favor be automatically dismissed with costs and the execution of the decree to proceed. 24.It was finally submitted that this application is devoid of merit and that the same should be dismissed with costs. 25.I have given due consideration to the application, rival affidavits and submissions. I find the issue for determination is whether the application has merit, 26.It is not in dispute that the Applicant has already filed an appeal which is yet to be determined. It is also not in dispute that on the one hand the Respondent who has already obtained judgement in his favour is entitled to enjoy the fruits thereof while on the other hand the Appellant is entitled to ventilate her appeal lest the same will become nugatory. A party seeking for an order of stay of execution is required to comply with the conditions imposed by Order 42 Rule 6 of the Civil Procedure Rules which provides as follows:(1)No appeal or second appeal shall operate as a stay of execution of proceedings under a decree or order appealed from except in so far as the court appealed from may order but, the court appealed from may for sufficient cause order stay of execution of such decree or order, and whether the application for such stay shall have been granted or refused by the court appealed from, the court to which such appeal is preferred shall be at liberty, on application being made, to consider such application and to make such order thereon as may to it seem just, and any person aggrieved by an order of stay made by the court from whose decision the appeal is preferred may apply to the appellate court to have such order set aside.”Also Order 42 Rule 6 (2) of the Civil Procedure Rules provides as follows;No order for stay of execution shall be made under 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; andb)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. 27.It is noted that the Appellant herein from her affidavit in support and the Respondent’s replying affidavit the issue of security is a key one and in which the Appellant has undertaken to provide in order to secure the order for stay. Learned counsels herein also seem to have the same view regarding the application as can be seen by the various authorities cited. The cases are as follows:Jason Nguba Kagu & 2 others versus Intra Africa Assurance Co. Limited (2014) eKLR where it was held that;The possibility that substantial loss will occur if an order of stay of execution is not granted is the cornerstone of the jurisdiction of court in granting stay of execution pending appeal under order 42 rule 6 of the Civil Procedure Rules. The court arrives at a decision that substantial loss is likely to occur if stay is not made by performing a delicate balancing act between the right of the respondent to the fruits of his judgment and the right of the applicant on the prospects of his appeal. Even though many say that the test in the High Court is not that of "the appeal will be rendered nugatory", the prospects of the appellant to his appeal invariably entails that his appeal should not be rendered nugatory. The substantial loss therefore will occur if there is a possibility the appeal will be rendered nugatory. Here, it is not really a question of measuring the prospects of the appeal itself but rather whether by asking the applicant to do what the judgment requires, he will become a pious explorer in the judicial process.In Samvir Trustee Limited vs Guardian Bank Limited Nairobi (Milimani) HCCC 795 of 1997 Warsame J (as he then was) held:Every party aggrieved with a decision of the High Court has a natural and undoubted right to seek the intervention of the Court of Appeal and the court should not put unnecessary hindrance to the enjoyment and exercise of that right by the defendant. A stay would be overwhelming hindrance to the exercise of the discretionary powers of the court.....The court in considering whether to grant or refuse an application for stay is empowered to see whether there exist any special circumstances which can sway the discretion of the court in a particular manner. But the yardstick is for the court to balance or weigh the scales of justice by ensuring that an appeal is not rendered nugatory while at the same time ensuring that a successful party is not impeded from the enjoyment of the fruits of his judgment. It is a fundamental factor to bear in mind that, a successful party is prima facie entitled to the fruits of his judgment; hence the consequence of a judgment is that it has defined the rights of a party with definitive conclusion. The respondent is asserting that matured right against the applicant/defendant... For the applicant to obtain a stay of execution, it must satisfy the court that substantial loss would result if no stay is granted. It is not enough to merely put forward mere assertions of substantial loss, there must be documentary evidence to support such contention. It means the court will not consider assertions of substantial loss on the face value but the court in exercising its discretion would be guided by adequate and proper evidence of substantial loss.... Whereas there is no doubt that the defendant is a bank, allegedly with substantial assets, the court is entitled to weigh the present and future circumstances which can destroy the substratum of the litigation.....At the stage of the application for stay of execution pending appeal the court must ensure that parties fight it out on a level playing ground and on equal footing in an attempt to safeguard the rights and interests of both sides.The overriding objective of the court is to ensure the execution of one party's right should not defeat or derogate the right of other. The court is therefore empowered to carry out a balancing exercise to ensure justice and fairness thrive within the corridors of the court. Justice requires the court to give an order of stay with certain conditions."Also in in Kenya Shell Limited versus Kiburu (1986) KLR 410 at page 416 Platt Ag. JA expressed himself as follows;It is usually a good rule to see if Order XL1 Rule 4 of the Civil Procedure Rules can be substantiated. 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 for 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."In the same case, Gachuhi, AG.JA (as he then was) at 417 held;It is not sufficient by merely stating that the sum of Kshs.20,380.00 is a lot of money and the applicant would suffer loss if the money is paid. What sort of loss would this be? In an application of this nature, the applicant should show the damages it would suffer if the order for stay is not granted. By granting a stay would mean that status quo should remain as it were before judgment. What assurance can there be of appeal succeeding? On the other hand, granting the stay would be denying a successful litigant of the fruits of his judgment.”Further in the case of Tropical Commodities Suppliers Ltd and Others vs. International Credit Bank Limited (in liquidation) (2004) E.A LR 331, the court defined substantial loss in the sense of Order 42 Rule 6 as follows;....Substantial loss does not represent any particular mathematical formula. Rather, it is a qualitative concept. It refers to any loss, great or small, that is of real worth or value as distinguished from a loss without value or a loss that is merely nominal......"Substantial loss may also be equated to the principle of negation of the success of the intended appeal. Dealing with the latter, it was held in the case of Kenya Airports Authority versus Mitu-Bell Welfare Society & another (2014) eKLR that;The nugatory limb is meant to obviate the spectre of a meritorious appeal, when successful, being rendered academic the apprehended harm, loss or prejudice having come to pass in the intervening period. Our stay of execution jurisdiction is meant to avoid such defeatist eventualities in deserving cases."It was further held in the case of Tabro Transporters Ltd vs. Absalom Dova Lumbasi (2012) eKLR thus;The discretionary relief of stay of execution pending appeal is designed on the basis that no one would be worse off by virtue of an order of the court; as such order does not introduce any disadvantage but administers the justice that the case deserves. This is in recognition that both parties have rights; the appellant to his appeal which includes the prospects that the appeal will not be rendered nugatory and the decree holder to the decree which includes full benefits under the decree. The court in balancing the two competing right focuses on their reconciliation which is not a question of discrimination."Also in Bungoma High Court Misc. Application No. 42 of 2011 – James Wangalwa & another vs. Agnes Naliaka Chesoto the court held 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. This is what substantial loss would entail."Agsin, in John Gachanja Mundia Vs. Francis Murira Alias Francis Muthika & another (2016) eKLR the court heldthat;There is no doubt the applicant has shown that substantial loss would occur unless stay is granted. However, I will be guided by a greater sense of justice. Courts of law have said that with the entry of the overriding principle in our law and the anchorage of substantive justice in the constitution as a principle of justice, courts should always take the wider sense of justice in interpreting the prescriptions of law designed for grant of relief." 28.Looking at the Appellant’s application as a whole, iam satisfied that she has presented sufficient material to justify the grant of an order of stay of execution pending the determination of the appeal herein. Consequently, the same is allowed in the following terms:i)The application dated 5/3/2026 is allowed in terms of prayer No. 3 thereof on condition that the Appellant/Applicant deposits the entire decretal sums into a joint interest earning account in the names of both advocates for the parties within thirty (30) days from the date hereof failing which the stay shall lapse.ii)The Appellant/Applicant to pay the Auctioneers (Interested Party) costs to be agreed upon or assessed.iii)The Appellant/Applicant to file and serve the record of appeal within fourteen (14) days from the date hereof.iv)Matter to be mentioned on 2/7/2026 to confirm compliance and for directions on the disposal of the appeal.v)The costs of the application shall abide in the appeal. DATED AND DELIVERED AT SIAYA, THIS 12TH DAY OF JUNE 2026.D. KEMEIJUDGEIn the presence of:Odera.......................................for AppellantN/A Mrs Chunge....................for 1st RespondentN/A ................................. 2nd RespondentRobinson Wakhungu........................Interested partyMaurine...................................Court Assistant