Qara Agencies v Mulwa (Small Claims Appeal E001 of 2025) [2026] KEHC 7601 (KLR) (29 May 2026) (Ruling)

**REPUBLIC OF KENYA** **IN THE HIGH COURT AT MAKUENI** **CIVIL SMALL CLAIMS APPEAL NO. E001 OF 2025** **QARA AGENCIES……………………………………………….APPELLANT/APPLICANT** **-VERSUS-** **ROSE MULWA ………….....................................................................RESPONDENT** **RULING** 1. The Application for determination the subject of this ruling is the one dated 18/09/2025. The same was filed under Certificate of Urgency pursuant to **Section 38** of the **Small Claims Court Act, Order 22 Rule 22** and **Section 3A** of the **Civil Procedure Act** and all other enabling provisions of the law. It seeks the following orders; 2. Spent. 3. **THAT** pending the hearing and determination of the appeal and application herein, there be an order of stay of execution on the interlocutory judgment entered on the 29th day of April 2025. 4. Spent. 5. Spent. 6. **THAT** costs of this Application be provided for. 7. The Application is supported by the grounds set out on its face and the Affidavit of Daniel Kilonzi Muchangi sworn on the same day. He deposed that he is the appellant’s Director and therefore conversant with this matter hence competent to swear the Affidavit. That, on 29/04/2025, the trial court delivered an interlocutory judgment in favor of the respondent and later dismissed an application to set aside the same and for stay of the execution hence disregarding the appellant’s defence. 8. That, their advocates have since appealed to this court as per the Memorandum of Appeal annexed after applying for certified copies of the judgment and typed proceedings as per the letter of request marked **QAL 3.** 9. He averred that, the appeal herein raises important points of law and that this court should exercise its discretion in setting aside the default judgment and uphold the right to be heard. That, the respondent has threatened to proceed with execution unless restrained by this court and that he will suffer loss and injustice if execution proceeds before the appeal is determined. 10. The application is opposed through the following grounds of opposition dated 10/11/2025; 11. That the motion is misconceived, scandalous, vexatious and an abuse of the court process. 12. That the application and the orders sought thereunder are bent on causing unreasonable delay to the respondent’s ability to enjoy the fruits of her judgment, 13. That, there is no explanation justifiable, plausible or otherwise discernible from the application dated 18/09/2025 to compel this honorable court to grant the orders sought against the judgment delivered on 29/04/2025. 14. That, the issues raised in the application and proposed Memorandum of Appeal are simple ordinary issues of law and service that fall under the inherent jurisdiction of the court hearing the matter and not clear omission of law or fact that warrant an Appeal. 15. That, the applicant has failed and or neglected to furnish security for due performance of the ruling being appealed from. 16. That, the applicant filed this application as a delaying tactic aimed at frustrating the respondent from realizing the fruits of her judgment. 17. In rejoinder, the applicant filed an affidavit sworn on 24/02/2026 where it was deposed that; the application is competent and does not constitute an abuse of the court process as alleged. That, it has been filed in good faith and within reasonable time and seeks lawful relief pending the hearing and determination of the appeal. 18. That, the appellant has provided sufficient explanation and legal basis in the supporting affidavit to warrant the grant of the orders sought. That, the intended appeal raises arguable and substantial issues of law and fact including matters concerning procedure and service which merit consideration by this court. 19. That, the allegation that the application is a delaying tactic is unfounded, speculative and unsupported by evidence. That, the respondent will not suffer prejudice if the orders are granted as the decretal sum can be secured pending determination of the appeal. That, the grounds of opposition raise general statement of law which does not sufficiently rebut the factual and legal grounds advanced in the applicant’s motion. 20. The application was canvassed orally by the applicant through its counsel who highlighted the affidavits filed and expressed willingness to furnish security as directed. The respondent relied fully on her written submissions. 21. It was submitted that none of the provisions cited by the applicant supports stay of execution hence no basis has been laid to grant stay. It was contended that if this court is minded to consider the prayer, it should exercise its discretion judiciously and on sound principles in line with the provisions of **Order 42 Rule** **6(2)** of the **Civil Procedure Rules**. 22. It was submitted that the applicant has not shown the substantial loss that will result if stay is not granted. Reliance was placed on the case of **Antoine Ndiaye -vs- African Virtual University (2015) eKLR** where the court (Gikonyo J) stated; **“The applicant must show he will be totally ruined in relation to the appeal if he pays over the decretal sum to the respondent. In other words, he will be reduced to a mere explorer in the judicial process if he does what the decree commands him to do without any prospects of recovering his money should the appeal succeed. Therefore, in a money decree, like is the case here, substantial loss lies in the inability of the respondent to refund the decretal sum should the appeal succeed. It matters not the amount involved as long as the respondent cannot pay back. The onus of proving substantial loss and in effect that the Respondent cannot repay the decretal sum if the appeal is successful lies with the applicant; follows after the long age legal adage that he who alleges must proof. Real and cogent evidence must be placed before the court to show that the respondent is not able to refund the decretal sum should the appeal succeed. It is not, therefore, enough for a party to just allege as is the case here that the respondent resides out of Kenya and his means is unknown.”** 1. It was further submitted that execution in itself is not evidence of substantial loss. Reliance was placed on the case of **Ndung’u -vs- Mutua (Civil Appeal No. E047 of 2024) KEHC 6276 eKLR** where the court (Muchemi J) stated; **“It is trite law that execution is a lawful process and it is not a ground for stay of execution. The applicant is required to show how execution shall irreparably affect him or will alter the *status quo* to his detriment therefore rendering the appeal nugatory, which the applicant in this case has failed to do. Furthermore, the loss the applicant alludes to, the sale of his home can be quantified by way of damages. It is therefore my considered view that the applicant has not demonstrated substantial loss that he stands to suffer.”** 1. With regard to security, it was submitted that the applicant has neither furnished any security nor expressed willingness to do so. 2. It was submitted that the court has a duty to balance the parallel positions of the parties to a suit. That, the respondent has a judgment in her favor against the applicant who has failed to satisfy the conditions for grant of stay of execution thus the court should not come to its aid. Reliance was placed *inter alia* on the Court of Appeal decision in **Kenya Shell Limited -vs- Benjamin Karuga Kibiru & Another [1986] KECA 94 (KLR)** for the submission that in applications for stay, the court should balance the parallel prepositions, first that a litigant, if successful should not be deprived the fruits of a judgment in his favor without a just cause and secondly, that execution would render the proposed appeal nugatory. 3. In conclusion, it was submitted that the applicant has failed to satisfy the grounds for stay of execution as envisaged by the law. 4. Having looked at the application, the Grounds of Opposition, Further Affidavit and submissions, the only issue for determination is whether the application is merited; 5. **Section 38** of the **Small Claims Court Act** provides that; ‘A person aggrieved by the decision or an order of the Court may appeal against that decision or order to the High Court on matters of law.’ 6. **Order 42 Rule 6(1)** of the **Civil Procedure Rules** provides that; **“No appeal or second appeal shall operate as a stay of execution or 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.” (emphasis mine).** 1. It is therefore clear that a person aggrieved by a decision of the Small Claims Court has a right of Appeal to the High Court and the High Court is at liberty to consider an Application for stay from such a person. 2. According to **Order 42 Rule 6** of the **Civil Procedure Rules**, the conditions which should guide the Court in determining whether to grant stay pending appeal are; whether the application has been filed without unreasonable delay; whether substantial loss will occur if stay is not granted and furnishing security for the due performance of the decree. 1. The impugned ruling by the trial court was delivered on 22/08/2025 whereupon it declined to set aside an interlocutory judgment which it entered on 29/04/2025. Both the Memorandum of Appeal and Application herein were filed on 21/09/2025 hence evident that they were filed within the prescribed period of 30 days as per **Section 79G** of the **Civil Procedure Act.** 2. As for substantial loss, the applicant deposed that there is a threat of execution and that it will suffer loss and injustice if the same proceeds before the appeal is determined. It is trite and courts have severally held that the threat of execution does not amount to substantial loss as it is a process that is sanctioned by the law. In the persuasive case of **Samvir Trustee Limited -vs- Guardian Bank Limited [2007] KEHC 2438 (KLR),** the court stated; **“It is my humble view that for the applicant to obtain a stay of execution, it must satisfy this court that substantial loss would result if no stay is granted. It is not enough to merely put forward allegations or assertion of substantial loss, there must be empirical or documentary evidence to support such contention. It means the court will not consider mere assertions of substantial loss on the face value but the court in exercising its discretion would be guided by adequate and appropriate evidence of substantial loss.”** 1. The appeal herein is against the trial court’s refusal to set aside the default judgment delivered on 29/04/2025. The said judgment was not exhibited in the supporting affidavit but according to the respondent’s submissions, she sued the appellant for breach of contract and sought judgment in the sum of Kshs. 918,500/=. Judgment was entered in her favor after the appellant’s failure to enter appearance and file pleadings. Having looked at the Memorandum of Appeal, I am of the view that it raises triable issues which should be given a chance. Further, I am of the view that the decretal award is quite substantial and the court does not have information on whether the respondent is able to refund the same if the appeal succeeds. She did not attach an affidavit of means. 1. As for security, the applicant has expressed willingness to comply with directions of this court. The applicant is craving a chance to defend itself and that means that the entire decretal award is disputed. In the circumstances therefore and in the interest of balancing the competing interests between the parties, I am of the view that the appellant should deposit the entire decretal amount in a joint interest earning account held in the names of both advocates on record. Dated, signed and delivered virtually this **29th** day of **May 2026** ………………. J.N.ONYIEGO **JUDGE**