https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7625

Patronic Services Limited v Epco Builders Limited & another (Civil Case 227 of 2017) [2026] KEHC 7625 (KLR) (Commercial and Tax) (28 May 2026) (Ruling) Neutral citation: [2026] KEHC 7625 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Commercial Courts) Commercial and Tax Civil Case 227 of 2017 PM Mulwa, J May 28, 2026 Between Patronic Services Limited Plaintiff and Epco Builders Limited 1st Defendant Proctor & Allan (Ea) Limited 2nd Defendant Ruling 1.This Ruling is in respect of the application dated 5th November 2025 by the 1st Defendant/Applicant under Order 42 Rule 6 of the Civil Procedure Rules. The Applicant seeks an order of stay of execution of the Judgment delivered on 22nd September 2025 and any ensuing decree pending the hearing and determination of the 1st Defendant’s appeal in the Court of Appeal. The Application is supported by the affidavit of Ramji Devji Varsani the Managing Director of the 1st Defendant/Applicant. 2.The Applicant contends that, being aggrieved with the judgment of this court, it appealed the same. And further argues that the appeal raises weighty and arguable issues of both law and fact. That the judgment sum of Kshs. 28,049334.13 is substantial and if execution proceeds, the Applicant will suffer irreparable damage. 3.The Applicant contends that it is in danger of having its construction equipment, machinery and other property garnished and/or attached in execution and frustrate its operations and financial obligations. 4.The application was opposed through the replying affidavit of Kajal Patel, the Plaintiff’s Director and General Manager on 19th November 2025, in which he depones the application only seeks to curtail the Plaintiff’s right to enjoy the fruits of its judgment. 5.It was also argued that the Applicant has not met the threshold for grant of the orders sought. That the application is frivolous, vexatious, misconceived and an abuse of the court process, and ought to be dismissed. 6.I have considered the application, the affidavits sworn in support and in rebuttal alongside the submissions filed by counsels. The issue for determination is whether the applicant is entitled to the orders sought. 7.An application for a stay of execution of a judgment pending appeal is governed by Order 42 Rule 6(2) of the Civil Procedure Rules, which lays down the conditions to be satisfied by an applicant seeking a stay of execution pending appeal. The conditions to be satisfied are as follows:i.The applicant must satisfy that she stands to suffer substantial loss if the stay is not granted,ii.That the application has been filed without undue delay, andiii.That the applicant is willing to offer such security as may be ordered by the court. 8.The purpose of an application for stay of execution pending an appeal is to preserve the subject matter in dispute so that the rights of the appellant who is exercising the undoubted right of appeal are safeguarded, and the appeal, if successful, is not rendered nugatory. (See RWW v EKW (2019) eKLR). 9.However, in doing so, the court should weigh this right against the success of a litigant who should not be deprived of the fruits of his/her judgment. The court is also called upon to ensure that no party suffers prejudice that cannot be compensated by an award of costs. Indeed, to grant or refuse an application for stay of execution pending appeal is discretionary. 10.The judgment sought to be stayed was delivered on 22nd September 2025, whereas the application for stay was filed on 5th November 2025. There was therefore no unreasonable delay in bringing the application. 11.The question whether or not the intended appeal is competent is a matter falling within the province of the appellate court. At this stage, this Court is only concerned with whether sufficient grounds have been laid to warrant preservation of the subject matter pending the intended appeal. 12.The decree herein is a money decree. Ordinarily, the mere fact that a decree is monetary does not by itself amount to substantial loss. An applicant must demonstrate that if payment is made, the respondent would be unable to refund the decretal sum in the event the intended appeal succeeds. 13.In the present case, the Applicant contends that the enforcement of the judgment at this stage would effectively nullify the protection afforded by the contractual clause and render the appeal nugatory. On the other hand, the Respondent maintains that the Applicant will suffer no prejudice since they may recover any sums from them in the event the appeal succeeds. 14.This is a money judgment and I am persuaded that any execution thereof will render the appeal nugatory and may occasion substantial loss to the Respondent. 15.The last consideration is that of security. Security is one of the conditions set in determining whether to grant or deny stay of execution of the judgment. The applicant ought to propose and show the willingness to comply with the security to be deposited in due performance of the decree. In the absence of such an offer by the applicant, the court will exercise its discretion and allow the application and set a condition for security. 16.The Applicant has offered to provide a bank guarantee of 10% - 20% of the decretal sum or in the terms the court may deem fit. The Respondent avers the Applicant ought to pay half of the decretal amount to the 1st Respondent and deposit the other half into an interest earning account. 17.In the totality of the circumstances herein, I am satisfied that the Appellant has met the threshold for the grant of a stay pending the appeal. The interests of justice require that the decretal sum be secured. 18.Consequently, I allow the Notice of Motion dated 5th November 2025, and make the following orders:i.There shall be a stay of execution of the judgment delivered on 22nd September 2025, and any ensuing decree pending the hearing and determination of the 1st Defendant’s appeal.ii.The 1st Defendant/Applicant shall, within 30 days deposit a sum of Kshs. 15,000,000/= in a joint interest earning account in the names of respective advocates, failing which the stay orders shall automatically lapse.iii.Costs of the application shall abide the outcome of the appeal.Orders accordingly. RULING DELIVERED VIRTUALLY, DATED AND SIGNED AT NAIROBI THIS 28TH DAY OF MAY 2026.P.M. MULWAJUDGEIn the presence of:Mr. Odhiambo h/b for Mr. Njuguna for Plaintiff/RespondentMr. Waigwa & Ms. Anami for Defendant/ApplicantCourt Assistant: Lispa