https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9947

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT NAIROBI** **MILIMANI LAW COURTS** **THE CIVIL APPELLATE DIVISION** ***(Coram: A.C. Mrima, J.)*** **CIVIL APPEAL NO. E444 OF 2024** ***-between-*** **DAVID LANG ROSS**......................................... **APPELLANT/APPLICANT** ***-versus-*** **ALPHONSE O’MAKALWALA OTIENO** ……........................ **RESPONDENT** **RULING** **Background:** 1. On 21st June 2024, the trial Court in *Nairobi [Milimani] Chief Magistrates Commercial Court Case No. 375 of 2023* [formerly *Nairobi [Milimani] High Court Civil Case E194 of 2021]*, delivered a default judgment in favour of *Alphonse O’makalwala Otieno*, Respondent herein, for a defamation suit he instituted against *David Lang Ross*, the Appellant/Applicant herein. The Respondent subsequently extracted a decree dated 1st April 2025, for the sum of Kshs. 11,000,000/- plus interest. 2. The Appellant’s application to set aside the default judgment was dismissed by the trial Court on 24th March 2025, prompting the current appeal and a series of interlocutory applications addressed in this ruling. On this Court’s directions, all the pending applications were heard together by way of written submissions, hence, this ruling. An overview of the applications is imperative. **The Notice of Motion dated 15th April 2025:** 1. This application was filed by the Appellant. It sought the following orders: - 2. *Spent.* 3. *Spent.* 4. *Spent.* 5. *THAT pending the hearing and determination of the Appeal, this Honourable Court be pleased to stay the execution of the Judgment dated 21st June 2024 and the consequential Decree dated 1st April 2025 and/or Orders dated 3rd April 2025 issued in Milimani Commercial Court Civil Suit 375 OF 2023.* 6. *THAT pending hearing and determination of this Application, this Honourable Court be pleased to stay the execution or implementation of the Ruling and/or Orders issued on 24th March 2025 in Milimani Commercial Court Civil Suit No. 375 OF 2023.* 7. *THAT the costs of the application be provided in the cause.* 8. In the grounds in support of the application, corroborated by the Appellant’s Affidavit and Further Affidavit sworn on 15th and 16th April 2025 respectively, the Appellant claimed that he was condemned unheard in the trial Court. The Appellant asserted that he was out of the Court’s jurisdiction and that the Respondent failed to seek leave to serve him outside the jurisdiction contrary to Order 5 Rule 21 of the Civil Procedure Rules. He stated that any emails sent were blocked by his spam filters. It was his case that stay of execution was necessary to prevent the appeal from being rendered nugatory. 9. This Court considered the application under urgency and issued a stay of execution order for 10 days. The application was served for *inter-partes* on 24th April 2025. Upon hearing Counsel for the parties, the application was directed to be heard together with the main appeal and the stay orders duly extended on condition that the Appellant deposits a security sum of Kshs. 3,000,000/= in Court within 21 days. It was the conditional stay that prompted the Notice of Motion dated 9th May 2025. **The Notice of Motion dated 9th May 2025:** 1. This application was also filed by the Appellant seeking the following orders: - 2. *Spent.* 3. *THAT pending the hearing and determination of this Application herein, this Honourable Court be pleased to vary the condition of the stay of execution of the impugned Decree as contained in Court Order issued by this Court the 24th April 2025.* 4. *THAT pending the hearing and determination of this Appeal herein, this Honourable Court be pleased to vary the condition of the stay of execution of the impugned Decree as contained in the Court Order issued by this High Court on the 24th April 2025.* 5. *THAT the Honourable be pleased to vary the condition of stay of execution as contained in the Court Order dated 24th April 2025 to the extent that Appellant to avail the original title deeds for 16 plots of Land being Nanyuki Marura Block (Ereri) 5354; 5389; 5409; 5415; 5416; 5407; 5378; 5371; 5379; 5372; 5368; 5369; 5363; 5364; 5356; 5357 as security for the Appeal.* 6. *THAT the Honourable Court be pleased to make further and/or necessary orders in furtherance of the interest of justice.* 7. Through the grounds and affidavit in support of the application, the Appellant claimed that he was unable to raise the Kshs. 3,000,000/- cash deposit ordered by this Court due to harsh economic times. He offered his 16 title deeds as alternative security, asserting their value exceeds the Court-sanctioned cash amount. 8. In his written submission dated 5th June 2025, the Appellant relied on the Supreme Court’s decision in *Fidelity Guaranty -vs- Emmanuel Kithinji* (SC Appl 5 of 2014), to advance the argument that Article 48 of the Constitution requires security conditions that do not drive litigants out of Court. The Appellant argued that where a cash deposit is oppressive and there is a constitutionally-compliant alternative of depositing a title deed instead, then doctrinal niceties ought not to override fundamental rights concerning access to justice and proportionality. The Appellant further relied on *Jeremy Arambi Muron -vs- Standard Chartered Bank* (2019) eKLR to demonstrate that Courts routinely grant stays of execution upon the deposit of title deeds, which satisfy the adequacy requirement under Order 42 Rule 6 of the Civil Procedure Rules. **The Notice of Motion dated 14th May 2025:** 1. The Appellant’s application for variation of the stay Orders instigated the Respondent who filed the Notice of Motion dated 14th May 2025. He sought the following orders: - 2. *THAT pending determinations and hearing of this instant Application, the Appellant’s Application dated May 9, 2025 and the main appeal, this Honourable Court be pleased to vary it’s Court Order issued on 24th April 2025 as affects the Applicant’s obligation to file and serve written submission to the Application dated 15th April 2025 and the main Appeal and hereby order that the Applicant herein shall have leave to file a Replying Affidavit to the main appeal, within 14 days of determination of the application dated 9th May 2025, in response to the memorandum of appeal and thereafter file his submissions to the application dated April 15, 2025 and the main appeal within 10 days.* 3. *THAT costs of this Application be decided upon determination of the main appeal.* 4. In the grounds in support of the application, it was the Respondent’s case that he was served with pleadings late during the Easter Holiday, had a massive workload handling over 20 cases, and required the opportunity to file a response to the main appeal to ensure a fair and definitive determination. Again, this application precipitated the following application. **The Notice of Motion dated 5th June 2025:** 1. Subsequently, the Appellant lodged the Notice of Motion dated 5th June 2025 where he sought the following orders: - 2. *Spent.* 3. *THAT this Honourable Court be pleased to EXPUNGE from record the Respondent’s Replying Affidavit sworn by* *ALPHONSE O’MAKALWALA OTIENO on 30th May 2025.* 1. *THAT costs be in the cause.* 2. In the grounds in support of application, the Appellant stated that the Respondent filed his Replying Affidavit on 30th May 2025, outside the 14-day timeline previously directed by the Court on 14th May 2025, and did so without seeking leave of the Court. **Responses to the Appellant’s applications:** 1. In response to the application for stay, the Respondent filed a Replying Affidavit deposed to on 24th April 2025 where he indicated that he was not opposed to the stay of execution provided that the Appellant deposits the full decretal amount into a joint interest-earning account at ABSA Bank. 2. The Respondent averred that the Appellant lied under oath regarding his Tanzanian residence. He maintained that the Appellant was properly served with all summonses and notices *via* his active email, david@strateracapital.com. Further to the foregoing, the Respondent demonstrated his own financial capacity to refund the decretal sum by adducing evidence of assets valued at Kshs. 18,200,000/-. 3. In response to the application for variation of orders, the Respondent filed a Replying Affidavit deposed on 30th May 2025. He opposed the variation of security by arguing that the Court’s order for a cash deposit of Kshs. 3,000,000/- required specific performance and that the 16 title deeds were inappropriate security because they are subject to litigation in *High Court Commercial Case E150 of 2020*. He further alleged that the Appellant had previously testified that the value of the plots had dropped to Kshs. 99,000/-. 4. Through written submissions dated 14th June 2025, the Respondent posited that the Appellant failed to adduce evidence demonstrating any change of circumstances that warranted a review of the security terms. The Respondent submitted that the proposed alternate security is not fit for purpose and that the aggregate value of the properties must significantly exceed the decree’s value, given that auction sales invariably attract supplementary costs. The Respondent additionally highlighted the Appellant’s past failure to comply with trial Court orders concerning the disclosure of his financial assets, urging the Court to exercise its discretion fairly while considering the Appellant’s conduct. 5. The Appellant rebutted the foregoing through a further affidavit deposed on 4th June 2025. It was his position that the KRA stamp duty assessment confirmed a value of Kshs. 350,000/- per plot, bringing the total to Kshs. 5,600,000/-. To substantiate the current market value, the Appellant filed a Supplementary Affidavit on 24th July, 2025, which presented a Valuation Report by *Valuetec Consultants* dated 21st July 2025. It was his case that the valuations confirmed the market value of Plot 5354 at Kshs. 325,000/-. 6. In his supplementary written submissions dated 18th June 2025, the Appellant urged the Court to expunge unverified and extraneous facts, such as references to KRA assessments, leasehold, and freehold land structures, introduced by the Respondent in his submissions. It was his case that they were never pleaded in the Replying Affidavit dated 30th May 2025. The Appellant reiterated that the right of a party to enjoy the fruits of a judgment must be carefully balanced against the constitutional imperative that no person should be shut out from accessing a Court of competent jurisdiction. 7. Whereas the Appellant did not file a response to the Respondent’s Application dated 14th May 2025, in his Affidavit dated 5th June 2025, he indicated he was not opposed to the Respondent seeking leave to file supplementary affidavits to the main appeal, save for reserving his right to file a rejoinder. 8. In response to the application dated 5th June 2025, the Respondent filed a Replying Affidavit on 28th July 2025, conceding that his 30th May 2025 response was filed two days late. He explained that the delay was due to severe illness and an overwhelming workload. He provided M-PESA payment receipts for medication purchased from Asmit Pharmacy as proof of his incapacity. **Analysis and Determination:** 1. From the foregoing applications and the rival submissions, the following issues crystallize for determination: - 1. *Whether stay of execution orders should be granted pending the determination of the appeal.* 2. *Whether the Respondent’s Replying Affidavit sworn on 30th May 2025, should be expunged from the record.* 3. *Whether the Respondent should be granted leave to file a Replying Affidavit and submissions to the main appeal out of time.* 4. *Whether the conditions for stay of execution should be varied from a cash deposit of KES 3,000,000/- to the deposit of 16 title deeds.* 2. A consideration of above issues follows. **[a] Whether stay of execution orders should be granted pending the determination of the appeal:** 1. This Court’s disposition on this issue largely determines the fate of the other applications. *Order 42 Rule 6(2)* of the *Civil Procedure Rules* provides for stay of execution and attaches three conditions thereto. They are proof of substantial loss to the Applicant, that the application be made without any undue delay and lastly, that 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. 2. In *Civil Application Nai 6 of 1979, Butt -vs- Rent Restriction Tribunal [1979] eKLR,*the Court of Appeal crystallized the conditions for grant of stay as hereunder; 1. *The power of the court to grant or refuse an application for a stay of execution is discretionary; and the discretion should be exercised in such a way as not to prevent an appeal.* 2. *Secondly, the general principle in granting or refusing a stay is, if there is no other overwhelming hindrance, a stay must be granted so that an appeal may not be rendered nugatory should the appeal court reverse the judge’s discretion.* 3. *Thirdly, a judge should not refuse a stay if there are good grounds for granting it merely because, in his opinion, a better remedy may become available to the applicant at the end of the proceedings.* 4. *Finally, the Court in exercising its discretion whether to grant or refuse an application for stay will consider the special circumstances and its unique requirements. The court in exercising its powers under Order XLI Rule 4(2) (b) of the Civil Procedure Rules, can order security upon application by either party or on its own motion. Failure to put security of costs as ordered will cause the order for stay of execution to lapse.* 3. This Court will now consider the requirements in turn. *Delay:* 1. The trial Court delivered the impugned ruling that declined to set aside the default judgment on 24th March 2025. On 15th April 2025, barely three weeks later, the Appellant lodged the application for stay before this Court. In the circumstances of the case, a delay of three weeks does not represent inordinate delay. *Substantial Loss:* 1. The circumstances of the dispute herein are peculiar. The Appellant claims to reside outside the jurisdiction of this Court. At the heart of the appeal is the contention that the Respondent failed to seek leave of the trial Court to effect service of Court documents upon him pursuant to Order 5 Rule 21 of the Civil Procedure Rules. The Respondent argued that the Appellant was properly served in law and that his failure to defend the suit yielded the default judgment. However, the resolution of this issue rests in the main appeal. 2. The Court in ***James Wangalwa & Another -vs- Agnes Naliaka Cheseto***[2012] eKLR discussed substantial loss as follows: *…. 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… 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.* 1. In this Court’s view, if stay is not granted, substantial loss will occur since the very foundation of the trial Court’s default judgment is impugned. Allowing the execution to proceed where service of summons is disputed goes to the root of the right to fair hearing, a constitutional imperative that cannot be derogated from. 2. The circumstances in this matter are, therefore, in favour of granting the stay orders. *Security:* 1. The Appellant indicated willingness to provide security. However, in view of the Appellant’s application to vary the terms of the order of this Court to deposit Kshs. 3,000,000/-, this limb of the requirements shall abide the outcome of that application. **[b] Whether the Respondent’s Replying Affidavit sworn on 30th May 2025, should be expunged from the record:** 1. This Court notes that the Respondent conceded that the filing was delayed by two days. However, over and above the short period of delay, the Respondent sufficiently explained it the delay resulted from unexpected health challenges and a heavy workload. To corroborate the latter, he availed pharmacy receipts, marked AM-2 which this Court has appraised itself of. It is evidence of payment of drugs. 2. In addition to the foregoing, this Court is minded about *Article 159(2)(d)* of the *Constitution*. It obligates Courts to administer substantive justice without undue regard to procedural technicalities. The minimal delay caused no irremediable prejudice to the Appellant. Accordingly, this Court finds no merit in the quest to expunge the affidavit. The Affidavit is, hence, to be properly on record. **[c] Whether the Respondent should be granted leave to file a Replying Affidavit and submissions to the main appeal out of time:** 1. The Respondent’s sought leave to file a response to the main appeal out of time. Extension of time is a discretionary power of the Court aimed at achieving the ends of justice. The Supreme Court in Salat Vs Independent Electoral and Boundaries Commission & 7 Others (Application 16 of 2014) (2014) KESC 12 (KLR) (Civ) (4 July 2014) observed as follows:- *77. This discretion is a very powerful tool which in our view should be exercised with abundant caution, care and fairness; it should be used judiciously and not whimsically to ensure that the principles enshrined in our Constitution are realised.* *80. An extension of time is an indulgence requested from the court by a party in default. He is not entitled to an extension. He has no reasonable or legitimate expectation of receiving one. His only reasonable or legitimate expectation is that the discretion relevant to his application to extend time will be exercised judicially in accordance with established principles of what is fair and reasonable. In those circumstances, it is incumbent on the applicant for an extension of time to provide the court with a full, honest and acceptable explanation of the reasons for the delay. He cannot reasonably expect the discretion to be exercised in his favour, as a defaulter, unless he provides an explanation for the default.* 1. From the Supreme Court’s reasoning, it its undoubtedly clear that in exercising the discretion to grant leave out of time, one of the many considerations is that it must advance the fundamental tenets of justice. The Appellant was not opposed to the application. Therefore, granting leave to the Respondent to file his response, in the circumstances of the case, facilitates the fair disposal of the appeal on its substantive merits. **[d] Whether the conditions for stay of execution should be varied from a cash deposit of Ksh. 3,000,000/- to the deposit of 16 title deeds:** 1. The Appellant offered 16 title deeds as an alternative to the Kshs. 3,000,000/- cash deposit. The Respondent vehemently opposed this substitution, claiming that the properties’ values depreciated and are encumbered by other litigation. In rebuttal, the Appellant supplied a valuation report dated 21st July 2025, marked as DLR-1. It indeed confirmed the market value of at least one of the plots (Plot 5354) at Kshs. 325,000/-. Even at the lower threshold, 16 unencumbered plots collectively amount to Kshs. 5,200,000/-, which sufficiently covers the Kshs. 3,000,000/- condition previously set by this Court. However, in order to cushion any possible depreciation of value of the properties, a reasonable monetary deposit shall issue. 2. As regards the claim that the plots are encumbered, firstly, the Respondent did not substantiate the claim. Secondly, this Court has intently gone through the annexures by the Appellant. Absent a final judgment in the dispute or a formal Court order in the nature of an injunction restraining any further dealing with the properties, this Court’s hands cannot be tied on the basis of proceedings. The Court notes that in the event the title deeds are encumbered, then appropriate orders will no doubt issue. 3. In the premise, this Court is satisfied that the alternative security offered is sound and suffices to partially safeguard the Respondent’s decree pending the appeal. As stated above, in order to strike a fair balance of the competing interests, a partial monetary deposit shall accompany the deposit of the title deeds as security. **Disposition:** 1. Having considered the applications above, this Court makes the following final orders: - **[a]** **The Appellant’s Notice of Motion dated 5th June 2025, seeking to expunge the Respondent’s Replying Affidavit is hereby dismissed.** **[b] The Respondent’s Notice of Motion dated 14th May 2025, is allowed. The Respondent shall be granted leave to file and serve a Response to the main appeal in this ruling.** **[c] The Appellant’s Notice of Motion dated 9th May 2025, is allowed to the extent that the condition for stay of execution issued on 24th April 2025 shall be accordingly varied.** **[d] There shall be a stay of execution of the judgment dated June 21st 2024, and the Decree dated 1st April 2025 in *Nairobi [Milimani] Chief Magistrates Commercial Court Case No. 375 of 2023*** **pending the hearing and determination of this Appeal, on condition that the Appellant shall deposit the sum of Kshs. 1,000,000/- [Kenya Shillings: One Million Only] together with the 16 original title deeds in COURT within the next 21 days of this Order.** **[e] For avoidance of doubt, the 16 original title deeds referred to in [d] above are as follows: Nanyuki Marura Block (Ereri) 5354; 5389; 5409; 5415; 5416; 5407; 5378; 5371; 5379; 5372; 5368; 5369; 5363; 5364; 5356; and 5357.** **[f] In default of order [d] and/or order [e] above, the stay orders in force shall automatically be discharged and/or set-aside and the Appellant’s Notice of Motion dated 15th April 2025 and the Notice of Motion dated 9th May 2025 [alongside the already dismissed Notice of Motion dated 5th June 2025] shall all stand dismissed with costs. The Respondent shall be at liberty to levy execution.** **[g] Since the pending appeal is against part of the trial Court’s ruling dated 24th March 2025, then the following directions hereby issue on the main appeal: -** **[i] The filing of the Record of Appeal is hereby dispensed with.** **[ii] The Respondent be at liberty to file and serve any response to the appeal within 14 days of this Order.** **[iii] Once served, the Appellant shall file and serve any supplementary response to the appeal alongside written submissions within 14 days of service.** **[iv] The Respondent shall be at liberty to file and serve any written submissions within 14 days of service.** **[v] The Appellant, if need be, shall file and serve rejoinder submissions within 7 days of service.** **[h] This matter shall be fixed for highlighting of submissions on the main appeal on a date to issue.** **[i] Meanwhile, the costs of the applications subject of this ruling shall be in the main appeal.** Orders accordingly. **DELIVERED**, **DATED** and **SIGNED** at **NAIROBI** this **9th** day of **July, 2026.** **A. C. MRIMA** **JUDGE** **Ruling virtually delivered in the presence of:** **Mr. Alphonse,** LearnedCounsel for Respondent. **Mr. Akello,** Learned Counsel for Applicant. **Amina** –Court Assistant.