https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12924

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT KISII** **CIVIL APPEAL NO. E051 OF 2026** **RICHARD KEBANDE SIKWEYA......................................APPELLANT** **=VERSUS=** **JACKSON NYAGIRO…….…....................................RESPONDENT** **RULING** 1. This ruling is on the Appellant’s Application dated 12th May 2026. The Application seeks a stay of execution the decree in ETAGO MCCC E096 OF 2024 from which this Appeal arose, pending the hearing and determination of this Appeal. The judgment in that suit was delivered on 15th day of April 2026. 2. The Application which is principally brought under the provisions of Order 42 Rule 6 (2) of the Civil Procedure Rules, is supported by the Supporting Affidavit of RICHARD KEBANDE SIKWEYE the Appellant. The Respondent has opposed the Application. ***Determination*** 1. Order 42 Rule 6 (2) of Civil Procedure Rules states as follows: **“No order for a stay of execution shall be made under sub-rule (1) unless—** 1. **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; and** 2. **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.** 3. This provision prescribes three pre-conditions to the grant of a stay pending appeal. namely: 4. The Applicant ought to demonstrate that he or she will suffer substantial loss unless the stay is granted. 5. The Application ought to have been made with ought unreasonable delay. 6. Security ought to have been offered for the due performance of the decree. 7. The Appellant has already filed this Appeal against both liability and the damages awarded in the trial court. The judgment is a money judgment. He has in this Application stated that the Respondent is unlikely to refund the decretal sum in the event the Appeal succeeds. An allegation the Respondent has not controverted with any sufficient facts. The Respondent has however opposed the Application. 8. On an Application of this nature, a court has to delicately balance Respondent’s right to the fruits of his judgment and the Applicant’s entitlement to equitable treatment on the basis of the prospects of his appeal. Particularly the need to protect from having to chase after the Respondent for his monies, should the Appeal is successful. 9. Even where the Applicant has alleged that the Respondent will lack the means to refund should the Appeal succeed, and the Respondent has not rebutted the allegation, or has rebutted it but not provided any financial evidence to demonstrate his professed means, the court still has a duty to balance the equities. In so doing, it is to be guided by a greater sense of justice. 10. In ***Samvir Trustee Limited v. Guardian Bank Limited [2007] KEHC 2438 (KLR)*** Warsame, J (as he then was) observed that on such applications the overriding objective of the court is to ensure the execution of one party’s right should not defeat or derogate the right of the other. The court has therefore to strike a balance of the scales of justice. 11. Upon considering the Application, the Respondent’s opposition, as well as the provisions of Order 42 Rule 6 (1) and (2) of the Civil Procedure Rules, I find that the Appellant is likely to suffer substantial loss if the decree is executed. 12. The Application having been filed within the 30-day period provided for appeal, and before the lapse of the temporary stay granted pending this formal application, I find that the Application was made without undue delay. Judgment was delivered on 15th April 2026; with a temporary stay of 30 days. This Application was filed 2 days before the lapse of that temporary stay. 13. As for the requirement of security, the Appellant has already deposited in this court the entire decretal sum that this Court had earlier ordered as a condition for the temporary stay it granted on this Application. 14. I am therefore satisfied that this is adequate security for the due performance of the said decree. Hence I direct that the said monies that the Appellant deposited in this Court on the interim orders earlier issued herein on this Application, be transferred from this Court, to an interest earning bank account in the names of the Appellant’s Advocate and the respondent’s Advocate. This be done within 45 days from the date of this ruling. **DATED and DELIVERED at Kisii on this 21st day of July, 2026.** **PROF (DR) NIXON SIFUNA** **JUDGE**