Osano t/a Chaju Builders Ltd v Pande (Civil Appeal E178 of 2025) [2026] KEHC 7644 (KLR) (28 May 2026) (Ruling)

Osano t/a Chaju Builders Ltd v Pande (Civil Appeal E178 of 2025) [2026] KEHC 7644 (KLR) (28 May 2026) (Ruling) Neutral citation: [2026] KEHC 7644 (KLR) Republic of Kenya In the High Court at Kisumu Civil Appeal E178 of 2025 JM Omido, J May 28, 2026 Between Cornel Opiyo Osano t/a Chaju Builders Limited Appellant and Geoffrey O. Pande Respondent Ruling A. The Notice Of Motion Dated 20th August, 2025. 1.The Appellant/Applicant’s notice of motion dated 20th August, 2025 is expressed to be brought under Sections 1A, 1B, 3 and 3A of the Civil Procedure Act, and Order 42 Rule 6 and Order 51 Rule 1 of the Civil Procedure Rules and all other enabling provisions of law and seeks the following orders:a.[Spent].b.[Spent].c.That at the hearing of this application inter partes the Honourable Court be pleased to stay the execution of the judgement and decree of the Small Claims Court delivered on 18th July, 2025 in Kisumu SCCOMM NO. E268 of 2025 pending the hearing and determination of the Appellants appeal herein.d.That costs of this application be in the cause. 2.The grounds upon which the Applicant has premised his application are that the Small Claims Court delivered judgement in the lower court matter on 18th July, 2025 against the Appellant, after the suit had been instituted against a director trading as a limited liability company. 3.The Applicant contends that he is aggrieved by the said judgement, which he considers to be contrary to fundamental principles of law, and has since lodged an appeal challenging the same. He further avers that the intended appeal raises arguable points of law with a high likelihood of success. 4.The Applicant also states that the Respondent has already commenced execution proceedings and that, unless the same are stayed, the appeal will be rendered nugatory, thereby occasioning him loss and embarrassment. 5.Lastly, the Applicant maintains that the present application has been brought without unreasonable delay. B. The Supporting Affidavit. 6.The application is supported by the affidavit of Hussein B. Indimuli, the Applicant’s Counsel, sworn on 20th August, 2025. 7.In his affidavit, Counsel deposes that he is duly authorized and competent to depone to the matters therein, and that he is conversant with the facts of the case. He deposes that judgment was delivered on 18th July, 2025 in Kisumu SCCCOMM E268 of 2025 Geoffrey O. Pande –vs– Cornel Opiyo Osano t/a Chaju Builders Limited, and has annexed a copy of the said judgement. He further avers that the proceedings before the trial court were fraught with procedural and legal irregularities, prompting instructions from his client to lodge an appeal against the said judgement, and has to that end annexed both a letter requesting proceedings and the memorandum of appeal. 8.The deponent further states that the Respondent has already initiated execution proceedings, including a notice to show cause in execution, and annexed a copy thereof. He expresses apprehension that unless an order for stay of execution is granted, the Respondent is likely to proceed with execution, thereby rendering the intended appeal nugatory. 9.Counsel adds in his affidavit that the Appellant stands to suffer substantial loss, as the decretal sum is considerable and recovery may be difficult should the appeal ultimately succeed and concludes by stating that it is just and proper, in the premises, for the court to grant the orders sought. C. The Replying Affidavit. 10.The Appellant’s motion is resisted and to that end the Respondent filed a replying affidavit that he swore on 17th September, 2025. 11.The Respondent, in his replying affidavit, deposes that the application for stay of execution pending appeal is merely an academic exercise intended to deny him the enjoyment of the fruits of his judgement and urges the court not to grant the orders sought. 12.The Respondent further avers that he intends to raise a preliminary objection on the basis that the application is incurably defective, amounts to an abuse of the court process and is a waste of judicial time. He nevertheless states that should the court be inclined to grant stay, the Applicant ought to be ordered to pay the decretal sum together with costs into his account, with an undertaking to refund the same in the event the appeal succeeds. 13.The Respondent also urges the court to direct the Applicant to deposit security for costs, expressing doubt as to the Applicant’s ability to satisfy costs should the appeal be dismissed. 14.The Respondent further deposes that the Applicant has failed to comply with the law and has not demonstrated that the appeal has any chances of success. He explains that the dispute arose from a commercial transaction in which he supplied goods to the Applicant in the year 2024, issued delivery notes and invoices, and that the Applicant failed to honour payment as agreed, instead issuing cheques which were dishonoured. He has annexed copies of the said cheques in support of this assertion. 15.He adds that he has suffered and continues to suffer loss, including accruing interest on a loan he had taken to facilitate the supply of the goods. 16.It is the Respondent’s position that the application has been brought in bad faith and offends the principle that justice delayed is justice denied. He asserts that the Applicant should not be allowed to dictate terms of settlement or enjoy the benefit of paying the decretal sum by instalments. 17.The Respondent accordingly prays that the Applicant’s application be dismissed with costs. D. The Oral Submissions By The Parties. 18.The application was canvassed by way of brief oral submissions, during which both parties addressed the Court and highlighted their respective positions. In doing so, each party largely relied on, reiterated and emphasized the contents of their filed affidavits and the annextures thereto, without introducing any substantial new matters. 19.Counsel for the Applicant underscored the grounds in support of the application and the averments contained in the supporting affidavit, particularly on the need for stay of execution pending appeal, while the Respondent maintained his opposition as set out in the replying affidavit, urging the Court to dismiss the application. 20.Overall, the oral submissions served to reinforce the positions already taken in the rival affidavits on record. E. Issues For Determination. 21.Having considered the application, the two affidavits, the submissions by both Counsel and the record in its entirety, the issues that arise for determination are as follows:a.Whether the Applicant has satisfied the conditions necessary for the grant of an order of stay of execution pending appeal as contemplated under the applicable law.b.Whether the intended appeal is arguable and whether it raises bona fide issues deserving of preservation through an order of stay pending its hearing and determination.c.Whether the Respondent would suffer prejudice that outweighs that of the Applicant if the order of stay is granted, and generally whether the interests of justice favour the granting or refusal of the orders sought. F. Analysis And Findings. 22.The first issue for me to determine is whether the Applicant has satisfied the conditions for stay of execution pending appeal. 23.The legal threshold for grant of stay of execution is well settled under Order 42 Rule 6(2) of the Civil Procedure Rules, which requires an Applicant to demonstrate substantial loss, that the application has been made without unreasonable delay and to furnish security for the due performance of the decree. The provision is couched in mandatory terms and the three requirements must be met conjunctively. 24.The Court is further guided by the decision in Butt v Rent Restriction Tribunal [1979] eKLR, where the Court of Appeal emphasized that:“The power of the court to grant or refuse an application for stay of execution is discretionary and should be exercised in such a way as not to prevent an appeal.” 25.The general principle is that, where there is no overwhelming or sufficient reason militating against the grant of stay, the Court ought to exercise its discretion in favour of granting such stay so as to preserve the subject matter of the dispute and ensure that the right of appeal is not rendered illusory or nugatory by reason of execution proceeding in the meantime. 26.In the present case, the Court notes that the application is supported solely by an affidavit sworn by Counsel for the Applicant and not by the Applicant himself. While Counsel may competently depose to matters of procedure, issues such as alleged substantial loss, financial prejudice or inability to recover decretal sums are matters of fact uniquely within the knowledge of the Applicant. The absence of a substantive affidavit by the Applicant significantly weakens the evidentiary basis upon which the Court can properly assess the claim of substantial loss. 27.The Court is therefore not satisfied that the Applicant has discharged the burden placed upon him under Order 42 Rule 6(2) of the Civil Procedure Rules. In the circumstances, this issue is determined against the Applicant. 28.The second issue for determination is whether the already preferred appeal is arguable. 29.The threshold for determining whether an appeal is arguable is a low one. The Court is not required at this stage to interrogate the merits of the appeal in detail or determine its likelihood of success. It is sufficient if the appeal raises at least one bona fide issue deserving of consideration by the appellate court. 30.From the material placed before this Court, including the averments that the trial proceedings were allegedly marred by procedural and legal irregularities, the Court is satisfied that the intended appeal is not frivolous and discloses issues that merit interrogation on appeal. 31.The third issue for determination is whether the balance of convenience and interests of justice favour the grant of stay. 32.This issue requires the Court to balance the competing rights of the parties: the Applicant’s right of appeal against the Respondent’s right to enjoy the fruits of his judgement. 33.It is a well-established principle that a successful litigant is entitled to the fruits of his judgement without unreasonable delay, and that stay of execution should not be granted as a matter of course. The Court must be satisfied that sufficient cause has been shown to deprive the decree-holder of that right. 34.In the present matter, the Court finds that no special circumstances have been demonstrated. The Applicant has not placed sufficient evidential material before the Court to justify the suspension of a lawful judgement, particularly in light of the deficiency in affidavit evidence noted earlier. On the other hand, the Respondent has demonstrated that he has a valid decree arising from a commercial transaction and that execution has already commenced. 35.The Court is therefore of the view that the prejudice likely to be suffered by the Respondent in being kept away from the fruits of his judgement outweighs any alleged prejudice to the Applicant. The balance of convenience and interests of justice thus tilt in favour of the Respondent. G. Conclusion And Disposition. 36.Having found that the Applicant has failed to satisfy the mandatory requirements for stay of execution under Order 42 Rule 6 of the Civil Procedure Rules, the Court declines to exercise its discretion in his favour. Consequently, the notice of motion dated 20th August, 2025 is hereby dismissed with costs to the Respondent. 37.Orders accordingly. DELIVERED (VIRTUALLY), DATED & SIGNED THIS 28TH DAY OF MAY, 2026.JOE M. OMIDO.JUDGE