https://new.kenyalaw.org/akn/ke/judgment/scc/2026/189

**REPUBLIC OF KENYA** **IN THE SMALL CLAIMS COURT OF KENYA AT UASIN GISHU COUNTY** **ELDORET SMALL CLAIMS COURT CASE NUMBER: SCCCOMM/E5084/2025** **HARON KIPYEGON RONO VS SALVON ENTERPRISES LIMITED** **RULING** 1. The ruling herein is in respect to the Notice of motion dated 22nd June, 2026. which was filed under certificate of urgency. The application is supported with grounds therein and supporting affidavit sworn by Mr. Franline Kibet Chirchir. The major grounds being that the respondent through its agent Eagle eye auctioneers have proclaimed and attached the office equipment and items belonging to the applicant and unless stay orders are granted, the respondent will proceed to sell the items rendering the application nugatory. That the applicant is willing and ready to offer security as ordered by the court on due performance of the prayers sought. The applicant deponed that the respondent stands to suffer no prejudice should the applicant’s prayers be allowed. 2. The application was opposed by a replying affidavit sworn on 29th June, 2026 by one Mr. Haron Kipyegon Rono, who deponed that on 7th April, 2026, judgment was entered in favour of the respondent for a sum of ksh 905,325.56/- comprising of the decretal sum of ksh 814,212/-, taxed costs of ksh 78,800/- and interest of ksh 12,313.56/- 3. That following the judgment debtor’s failure to honor the said decree he caused execution proceedings to be commenced and lawful warrants of attachment and sale of movable property were duly issued and served. The respondent deposes that the court is left entirety in the dark as to the applicant's capacity to honor any proposed instalment schedule, no concrete instalment proposal has been availed and bare averment that he is ready and willing to comply with court orders is wholly insufficient to found the grant of the relief sought. 4. That the application has been brought nearly 3 months after the decree was passed and only upon the execution proceeding having been commenced and the warrants of attachment having been executed. The respondent further maintained that he executed a written agreement dated 27th August 2025 expressly acknowledging the debt and undertaking to settle it on or before 30th September 2025 but failed to honour the said self-imposed deadline, failed to attend court and now seeking for extension of time. The deponent further averred that he stands to suffer irreparable prejudice if execution is stayed further without any security or concrete undertaking and that he has been denied the fruits of this judgment for an extended period and staying execution without any credible instalment proposal or security offered would deny the respondent justice. 5. The application was canvassed by way of written submissions. By the time of preparing this ruling, only the decree-holder/respondent had filed its submissions, notwithstanding the Court's directions requiring both parties to file and exchange their submissions within three (3) days. From the application, replying affidavit and the trivial submissions, the issue for determination is: *whether the applicant is entitled to stay of execution orders.* 6. This is a concluded matter, judgment having been delivered on 7th April, 2026. To date the said judgment is yet to be satisfied by the applicant herein. The truth is, the claimant herein has been denied the opportunity of enjoying the fruits of the judgment delivered. From the applicant's averment he admits that he is yet to satisfy the judgment that is why he is before this court seeking for extension of stay of execution orders. By all means the decree holder/ respondent has the right to proceed in the manner that he did. It is also important to note that it is more three months since judgment was delivered and the applicant has not paid even a single penny towards settle the judgment. He prays to be allowed to pay in installment without even giving a proposal of how he intends to do so. At least i have not seen any memorandum of appeal and an application to the effect that the appeal might be rendered nugatory and as it stands, the applicant just wants to satisfy the judgment at his pace and will. 7. The Small Claims Court was established to ensure the timely disposal of all proceedings before the Court using the least expensive method; equal opportunity to access judicial services; fairness of process; and simplicity of procedure. Holding unrealized judgment for more than 3 months beats the essence of having the small claims in place. Section 42(2) provides that; Any stay of execution may be subject to such conditions as to costs, payment into the Court, the giving of security or otherwise as the Adjudicator considers fit. The power is therefore conditional in nature and the burden lies squarely on the applicant to place sufficient material before the Court to justify the exercise of that discretion in its favour. 8. Further, it is trite law that stay of execution is a discretionary and equitable remedy which is not granted as of right merely because it is sought. In **Butt v Rent Restriction Tribunal [1979] eKLR,** the Court of Appeal set out the conditions that must be satisfied before a stay can be granted, namely: 9. That substantial loss may result to the applicant unless the stay is granted; 10. That the application has been made without unreasonable delay; and 11. That the applicant has furnished such security as the court considers sufficient for the due performance of the decree. 12. The attachment and proclamation of the Applicant's office equipment is not, in itself, "substantial loss". It is the ordinary and lawful consequence that befalls any judgment debtor who fails to satisfy a decree. To hold otherwise would be to immunize every defaulting judgment debtor from execution simply by virtue of the fact that execution has lawfully been commenced. I am reminded of the sentiments of Gikonyo J in James Wangalwa & another v Agnes Naliaka Cheseto Misc Application No 42 of 2011 [2012] eKLR. No doubt, in law, the fact that the process of execution has been put in motion, or is likely to be put in motion, by itself, does not amount to substantial loss. Even when execution has been levied and completed, that is to say, the attached properties have been sold, as is the case here, does not in itself amount to substantial loss under Order 42 Rule 6 of the CPR. This is so because execution is a lawful process. The applicant must establish other factors which show that the execution will create a state of affairs that will irreparably affect or negate the very essential core of the Applicant as the successful party in the appeal. This is what substantial loss would entail, a question that was aptly discussed in the case of Silverstein Vs .Chesoni [2002] 1KLR 867, and also in the case of Mukuma Vs. Abuoga quoted above. The last case, referring to the exercise of discretion by the High Court and the Court of Appeal in the granting stay of execution, under Order 42 of the CPR and Rule 5(2) (b) of the Court of Appeal Rules, respectively, emphasized the centrality of substantial loss thus: “…the issue of substantial loss is the cornerstone of both jurisdictions. Substantial loss is what has to be prevented by preserving the status quo because such loss would render the appeal nugatory.” 13. Substantial loss is a relative term and more often than not can be assessed by the totality of the consequences which an applicant is likely to suffer if stay of execution is not granted and that applicant is therefore forced to pay the decretal sum. This matter is not appealed, I am therefore, not satisfied that the attachment amounts to substantial harm on the part of the applicant, the applicant is exercising his right. 14. The applicant has deponed that he is ready to provide security. It is the Court which determines the security upon ordering stay to ensure the due performance of the obligations by the applicant as to costs and to satisfy the decree. In Arun C Sharma -V- Ashana Raikundalia T/A Rairundalia & Co. Advocates Justice Gikonyo the Court stated that: “The purpose of the security needed under Order 42 is to guarantee the due performance of such decree or order as may ultimately be binding on the applicant. It is not to punish the judgment debtor…. Civil process is quite different because in civil process the judgment is like a debt hence the applicants become and are judgment debtors in relation to the respondent. That is why any security given under Order 42 rule 6 of the Civil Procedure Rules acts as security for due performance of such decree or order as may ultimately be binding on the applicants. I presume the security must be one which can serve that purpose.” 15. Nevertheless, where the applicant proposes to provide security as the applicant has done, it is a mark of good faith that the application for stay is not just meant to deny the respondent the fruits of judgment. My view is that it is sufficient for the applicant to state that he is ready to provide security or to propose the kind of security but it is the discretion of the Court to determine the security. The Applicant has offered to provide security and has therefore satisfied this ground for stay. 16. In the result, the application is allowed in part on the condition that the applicant pays one-third (1/3) of the decretal sum, together with the costs and accrued interest, to the respondent within fifteen (15) days from the date hereof. In default of such payment, the decree holder/respondent shall be at liberty to proceed with execution. Upon compliance, the balance of the decretal sum shall be settled within six (6) months from the date of this ruling. Each party shall bear its own costs of the application. 17. Leave to appeal is granted to parties Ruling dated and delivered at Eldoret this 31st July, 2026. M.E Aligula-RM In the presence of C/A Mr. Lepatoiye Mr Cheruiyot for respondent/applicant Mr. Omondi h/b for Mr. Kibet for the decree holder/ respondent