https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12613

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT NAIROBI** **MILIMANI LAW COURTS** **CIVIL APPELLATE DIVISION** **HIGH COURT CIVIL APPEAL NO. E472 OF 2023** **REGUS KENYA LIMITED.....................................APPELLANT/APPLICANT** **VERSUS** **THE DATA PROTECTION COMMISSIONER................1ST RESPONDENT** **JAMES NDUNGO......................................................2ND RESPONDENT** **RULING** 1. The Notice of Motion dated 25th November 2025 seeks an order of stay of execution of the judgment delivered by Mrima J. on 30th September 2025, together with a stay of taxation proceedings pending the hearing and determination of its intended appeal to the Court of Appeal. 2. The application is brought under Sections 1A, 1B and 3A of the Civil Procedure Act, Order 42 Rule 6 and Order 51 Rule 1 of the Civil Procedure Rules. 3. The application is supported by the affidavit of **Lynsey Blair**, who depones that the judgment reduced the administrative penalty imposed by the 1st Respondent from Kshs.5,000,000 to Kshs.2,500,000, directed payment of the penalty within thirty days and awarded costs to the Respondents. 4. The Applicant avers that it has lodged a Notice of Appeal, applied for certified proceedings and intends to challenge the judgment before the Court of Appeal. It further states that execution of the decree and taxation of costs would render the intended appeal nugatory. 5. The Applicant also points out that pursuant to earlier orders of the Court, it had already deposited Kshs.3,500,000 in Court as security and contends that the said amount adequately secures both the reduced penalty and any costs that may ultimately be awarded. 6. The 2nd Respondent opposed the application through Grounds of Opposition and a Replying Affidavit sworn on 1st December 2025. The 2nd Respondent contends that the Applicant has failed to satisfy the mandatory requirements for stay under Order 42 Rule 6(2) of the Civil Procedure Rules CPR. 7. It is deponed that no execution has commenced; that taxation is merely a process of ascertaining costs and does not amount to execution; that the decree is purely monetary; that the Applicant has not demonstrated substantial loss or the Respondents' inability to refund any sums paid; and that the application is speculative and intended only to delay enjoyment of the judgment. 8. In its written submissions, the Applicant reiterates that it has satisfied the conditions for grant of stay under Order 42 Rule 6 CPR. 9. The Applicant’s Counsel submits that the intended appeal is arguable and relies on***Stanley Kang'ethe Kinyanjui vs. Tony Ketter & 5 Others* [2013] eKLR** on the principles governing arguable appeals. 10. On substantial loss, it is argued that payment of the penalty to the 1st Respondent would occasion irrecoverable prejudice because the funds, once paid into the Consolidated Fund, may not readily be recoverable even if the appeal succeeds. Counsel further relies on ***Antoine Ndiaye vs. African Virtual University* [2015] eKLR**, ***Geoffrey Muriungi & Another vs. John Rukunga M'Imonyo* [2016] eKLR** and ***Arun C. Sharma vs. Ashana Raikundalia t/a Raikundalia & Co. Advocates*** **[2014] KEHC 2430 (KLR)** to submit that substantial loss has been demonstrated, the application was filed without unreasonable delay and the existing security deposited in Court sufficiently secures the decree. 11. The 2nd Respondent submits that the application does not satisfy the cumulative requirements under Order 42 Rule 6(2) CPR. Counsel argues that no evidence of substantial loss has been tendered and that taxation proceedings cannot be equated to execution. Reliance was placed on ***Kenya Shell Ltd vs. Benjamin Karuga Kibiru & Another* [1986] KLR**, ***Machira t/a Machira & Co. Advocates vs. East African Standard* (No. 2) [2002] KLR 63**, ***Trust Bank Ltd vs. Ajay Shah & 3 Others* [2012] eKLR** and ***Thuo vs. Kimani & 2 Others* [2025] KEHC 4520 (KLR)** for the proposition that the conditions under Order 42 Rule 6 CPR are mandatory and cumulative and that a successful litigant should not be deprived of the fruits of judgment without sufficient cause. **Analysis and Determination** 1. I have considered the application, the affidavits and the rival submissions. I find that the main issue for determination is whether the application is merited. 2. The applicable law is 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 that security has been furnished for the due performance of the decree. These requirements are well settled and were restated by the Court of Appeal in ***Kenya Shell Ltd vs. Benjamin Karuga Kibiru & Another* [1986] KLR**. 3. It was not disputed that the application was filed within a reasonable time after delivery of the impugned judgment. The Applicant has also demonstrated that it had, pursuant to earlier orders of the Court, deposited Kshs.3,500,000 as security, an amount that exceeds both the revised administrative penalty and the likely costs payable under the decree. I note that the said deposit remains in Court. 4. The principal issue is whether substantial loss has been demonstrated. My finding is that although taxation does not in itself amount to execution, I also take judicial notice of the peculiar nature of the decree sought to be enforced. The decretal amount is an administrative penalty payable to a public body. This means that once remitted into the Government's revenue stream, recovery of those funds in the event that the intended appeal succeeds may not be as straightforward as recovery from a private litigant. 5. In the circumstances of this case, I am satisfied that the Applicant has established sufficient cause to warrant preservation of the subject matter pending the intended appeal. 6. The Court must, however, balance the Applicant's right of appeal with the Respondents' right to enjoy the fruits of their judgment. I am satisfied that the security already deposited in Court adequately protects the Respondents' interests and that no prejudice will be occasioned by maintaining the status quo pending the intended appeal. 7. Accordingly, I find merit in the application and make the following orders: 8. ***There shall be a stay of execution of the judgment delivered on 30th September 2025 pending the hearing and determination of the intended appeal to the Court of Appeal.*** 9. ***There shall also be a stay of execution on the taxed costs, but the process of taxation of the Respondents' bills of costs may proceed to ascertain the quantum payable.*** 10. ***The sum of Kshs.3,500,000 presently held in Court shall remain as security for the due performance of the decree pending the determination of the intended appeal.*** 11. ***Costs of the application shall abide the outcome of the intended appeal.*** **It is so ordered.** **DATED, SIGNED AND DELIVERED VIRTUALLY THIS 30TH DAY OF JULY 2026** **HON W A OKWANY** **JUDGE**