https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9987

**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. E1025 OF 2025** ***-versus-*** **PATRICK RWAMBA……………...........…....…...APPLICANT/APPELLANT** ***-versus-*** **JOSEPHAT AMUGUNE MUHIGA…..…………………………..RESPONDENT** **RULING** **Background:** 1. This ruling relates to the Notice of Motion dated 8th October 2025 filed by the Appellant/Applicant. It sought to stay execution of the judgment and decree in *Nairobi [Milimani] Chief Magistrates Commercial Court Suit No. 646 of 2017* [hereinafter referred to as ***‘the suit’***] which was delivered on 8th September 2021 in favour of the Respondent in the sum of Kshs. 5,002,000/= with interests and interest. The suit related to personal injuries sustained by the Respondent on 7th February 2011 at a construction site in Kahawa West in Nairobi County. The suit attributed the injuries to the Appellant’s negligence. 2. The Applicant then sought to set-aside the judgment through an application by way of Notice of Motion dated 23rd May 2025. The application was vehemently opposed and was eventually dismissed *vide* a ruling dated 22nd September 2025. It was the dismissal that prompted the appeal and the instant application. **The Application:** 1. The application was supported by the Applicant’s affidavit deposed to on 8th October 2025. It was his case that he was never served with any Summons to enter appearance in the suit and that the impugned *exparte* judgment ought to be set-aside as of right. That, he promptly filed the application to set aside the *exparte* judgment when he learnt of it. 2. The Applicant contended that his application was erroneously dismissed yet it was merited in the circumstances of the case and that unless the stay orders are granted, he stands to be prejudiced by being compelled to settle a judgment which the trial Court essentially lacked jurisdiction to determine. 3. The Applicant filed written submissions dated 3rd November 2025 wherein he espoused the above, and urged this Court to allow the application. Decisions were also referred to. **The Respondent’s case:** 1. The Respondent opposed the application through a Replying Affidavit sworn by one *Irene Amugune Muhigai*, the Administratrix of the estate of the Respondent as the Respondent died on 10th June 2022. 2. Irene vehemently disputed the Applicant’s allegation of non-service since he was duly served with Court process and he entered appearance and filed a Defence in the suit. That, the Applicant then kept on changing Advocates until judgment in the suit on 8th September 2021. That, the Applicant then filed *Nairobi [Milimani] High Court Civil Appeal No. E645 of 2021* alongside a stay application. According to the Respondent, this appeal was dismissed for want of prosecution on 21st July 2023. 3. The Respondent deposed that the Applicant continued in his slumber and since the Applicant approached this Court with unclean hands and misled it about the facts in the suit, and as he proffered no grounds for not taking part in the suit, then the appeal as well as the application ought to be disallowed. 4. The Respondent filed written submissions dated 26th November 2025 where he raised two main issues for determination being whether the Appellant met the threshold of stay of execution pending appeal and, whether the application is *res-judicata*. Several decisions were also referred to in support. **Analysis:** 1. The main issue for determination is whether the application satisfies the mandatory conditions for the grant of a stay of execution pending appeal. *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 above stated requirements in turn. 4. *Delay:* 5. The Applicant filed for stay approximately two weeks after the trial Court dismissed the setting-aside application. The delay is not inordinate. 6. *Substantial loss:* 7. The Applicant intends to raise several issues for reconsideration by this Court in the main appeal. They include the jurisdiction of the trial Court, whether the Applicant was duly served with Summons to enter appearance and other processes, among others. These are fundamental and foundational issues which go to the root of the appeal. In the event execution proceeds and the appeal is successful; say for instance on account of want of jurisdiction, then the execution would be unlawful and warranting reversal including claims of damages. Further, more of the Court’s limited time will be unnecessarily expended on this matter as well as more expenses incurred. 8. It is on that score that this Court finds that the Applicant has demonstrated that he is likely to suffer substantial loss if the application is not allowed. 9. *Security:* 10. The Applicant averred that he was open to any conditions this Court will set as precedent to the grant of the orders. The Respondent posited that the decretal sum be deposited in Court in case the application is allowed. 11. The decretal sum in the suit runs to over Kshs. 8 million. That is a colossal sum by any standard. Whereas the Applicant ought to deposit security in this matter, making an order for the entire sum to be deposited may be tantamount to not allowing the application. As such, this Court will settle for a reasonable figure so as to balance the parties’ interests. 12. **Coming** to the end of the analysis, this Court states that since the initial application for stay of execution was dismissed for want of prosecution, then the doctrine of *res judicata* cannot be a bar to the instant application. **Disposition:** 1. Flowing from the above, the application is merited and the following orders hereby issue: - **[a] There shall be a stay of execution of the judgment and decree in *Nairobi [Milimani] Chief Magistrates Commercial Court Suit No. 646 of 2017* pending the determination of this appeal on condition that the Applicant shall deposit the sum of Kshs. 1,000,000/= [One Million Only] in COURT within 30 days of this Order.** **[b] In the event of default in [a] above, the stay orders issued shall stand discharged and/or set-aside and the Notice of Motion dated 8th October 2025 shall stand dismissed with costs and the Respondent will be at liberty to levy execution.** **[c] Since the appeal is against a ruling, the following directions do hereby issue: -** **[i] The filing of the Record of Appeal is hereby dispensed with. The trial Court file shall be availed.** **[ii] The Appellant shall file and serve written submissions on the main appeal within 14 days of this order.** **[iii] Once served, the Respondent shall file and serve written submissions within 14 days of service.** **[d] This matter shall be fixed for highlighting of submissions.** **[e] Meanwhile, the costs of the application shall be in the 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. Rajoro,** LearnedCounsel for the Applicant. **Amina** –Court Assistant.