https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6193

SKM v NWM & another (Family Appeal E002 of 2026) [2026] KEHC 6193 (KLR) (6 May 2026) (Ruling) Neutral citation: [2026] KEHC 6193 (KLR) Republic of Kenya In the High Court at Nakuru Family Appeal E002 of 2026 JM Nang'ea, J May 6, 2026 Between SKM Appellant and NWM 1st Respondent JWM 2nd Respondent Ruling 1.By Notice of Motion dated 28/1/2026, the Appellant craves orders as hereunder;-a.Spent.b.Spent.c.That pending the hearing and determination of Family Appeal No. E002 of 2026, there be a stay of execution of the said judgement, decree, and all consequential orders.d.That costs of this application be in the cause. 2.The Application is supported by the Appellant’s affidavit purportedly sworn on the same date of the Application. He avers inter alia that the impugned decision of the lower court stems from a Separation Cause the 1st Respondent instituted seeking dissolution of her marriage with him among other orders. The lower court is said to have inter alia allowed dissolution of the marriage and ordered the Appellant to pay maintenance costs to the 1st Respondent in the sum of Kshs. 200,000/= monthly. 3.The Appellant points out what he describes as various defects in the court’s decision that in his view merit stay of execution. I shall not delve into the issues raised which go into the merits of the Appeal which is yet to be heard. 4.More relevant to this Application, the Appellant impresses upon the court the need to preserve the subject matter of the Appeal by an order of stay of execution. He expresses his readiness to comply with any conditions the court may impose. According to the Appellant, the Application is brought without unreasonable delay and no prejudice would be occasioned to the Respondents if stay is ordered. 5.The 1st Respondent opposes the Application through her affidavit in reply purportedly sworn on 16/2/2026. She also ventures into various matters that go into the Appeal itself that has not been fixed for hearing. She avers that she stands to suffer irreparable harm and prejudice as she solely relies on the ordered alimony for her upkeep. On the other hand, the Appellant is said to be financially stable as he controls the family company and has comfortably paid the alimony to her in the past. 6.The 1st Respondent further laments that she is not in gainful employment having ceased working with the family company (Resma Commercial Agencies limited) after their separation. She contends that the Appellant has failed to comply with another order of the lower court issued on 29/8/2024 directing him to pay her monthly maintenance of Kshs. 50,000/= pending hearing and determination of the suit. According to the 1st Respondent the Appellant owed her Kshs.400,000/= in respect of the alimony order, as at 16th January 2026. The Appellant is said to have only moved to bring the instant Application when he received the 1st Respondent’s Advocates’ demand for payment of the dues. 7.Were the court to be inclined to grant the Appellant an order for stay of execution, the 1st Respondent proposes that he deposit security for costs in the sum of Kshs. 1,350,000/= being computed arrears owed on account of the two lower court orders. 8.Regarding the decree for dissolution of the marriage, the 1st Respondent argues that the decree is not capable of being stayed. The same case applies to an order of permanent injunction issued by the trial court to restrain the Appellant from harassing or threatening her, or otherwise interfering with her peace, adds the 1st Respondent. She thinks that the Appellant would not suffer any prejudice if stay of execution of the court’s orders is not granted. 9.Learned Counsel for the parties filed written submissions which I have perused against the rival affidavit evidence. 10.Order 42 rule 6 (1) (2) of the Civil Procedure Rules 2010 governs disposal of an application such as before me for stay of execution pending appeal. The legal provisions stipulate that such order may not be granted;-“a.unless 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; andb.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.” 11.The Appellant asserts that has brought the Motion without unreasonable delay. It is should, however, be noted that even delay of one day, if unexplained, is bad enough. He has not explained the long delay of over oneyear to bring this Application. 12.In the circumstances, the delay is found to be unreasonable and inexcusable, no explanation having been given. This condition for grant of stay of execution pending Appeal is not therefore satisfied. 13.Provision of security for costs is a crucial condition precedent to grant of an order of stay of execution pending hearing and determination of an Appeal. This is a mandatory legal requirement that has to be complied with. The court has power to determine the appropriate security for costs but the Applicant must first express willingness and readiness to offer security. 14.In John Odungo vs Joyce Irungu Muhatia [2014] eKLR the court observed that an Applicant does not have to actually make a deposit of security to obtain an order of stay of execution. It suffices if he shows “preparedness as well as readiness to provide security should one be called upon to do so”. 15.The condition as to deposit of security is not also quite complied with. The Appellant merely states that he is willing to comply with any conditions without unequivocally expressing willingness and readiness to offer necessary security for costs. 16.Determination of the application would turn on the question of substantial loss, if any, the Appellant might suffer if stay of execution is not ordered. The case of Nyatera vs Nyakundi (Civil Appeal E033 of 2022) [2023]KEHC 3086 KLR) (16 March 2023) (Ruling) is relevant for the proposition that the Applicant ought to show the manner in which his appeal would be rendered nugatoty if stay of execution is not ordered.. The court opined in the case that it is not enough to say that because the Respondent intends to proceed with execution, he should be stopped because of the appeal. The court is therefore required to tread a delicate balance of the parties’ interests. As it is now trite, this is the cornerstone of the court’s discretion to grant or refuse stay of execution pending appeal. The onus is on the Appellant to show on a balance of probability that the Respondent would not be able to refund the decretal sum if paid out and the appeal eventually succeeds. 17.In RWW vs EKW [2019] eKLR and Re Global Tours & Travel Ltd HCWC No. 43 of 2000In Milimani HCMCA No. 1561 of 2007, Century Oil Trading Company Ltd vs Kenya Shell Ltd, this court again explained that;-“Where execution of a money decree is sought to be stayed, in considering whether the applicant will suffer substantial loss, the financial position of the applicant and that of the respondent becomes an issue. The court cannot shut its eyes when, it appears the possibility is doubtful of the respondent refunding the decretal sum in the event that the applicant is successful in his appeal. The court has to balance the interest of the applicant who is seeking to preserve the status quo pending the hearing of the appeal so that his appeal is not rendered nugatory, and the interest of the respondent who is seeking to enjoy the fruits of his judgement.” 18.In Shell Ltd vs Kibiru & Another (1986) KLR 410 it was famously postulated that;“substantial loss in its various forms is the cornerstone of the court’s jurisdiction to grant stay pending appeal. That is what has to be prevented. Therefore, without this evidence, it is difficult to see why the Respondents should be kept out of their money.’’ 19.Regarding the burden of proof, the Court of Appeal held in National Industry Credit Limited vs Aquinas Francis Wasike & Another [2006] eKLR that;-“once an applicant expresses a reasonable fact that a respondent would be unable to pay back the decretal sum, the evidential burden must then shift to the respondent to show whatever resources he has since that is a matter which is peculiarly within his knowledge.” 20.The legal position elucidated in the cited Case Law has been reiterated in several recent cases including Matata & Another vs Rono & Another (Civil Appeal No. E034 of 2024) [2024] KEHC 2799 (KLR) (19 March 2024) (Ruling) and Muinde Mulatya & Another ( 2021) eKLR and Kenya Commercial Bank Limited vs Sun City Properties Limited 7 & 5 Others ( 2012) eKLR. 21.The Appellant says the 1st Respondent has means while the latter states to the contrary. The 1st Respondent’s financial means to be able to refund the decretal sum if paid out is thus unclear. The onus is on the Appellant to prove the 1st Respondent’s financial incapacity, at least on a prima facie level, so that the 1st Respondent is obligated to make a rebuttal. 22.In balancing the interests of the parties, however, given the Appellant’s right to be heard on his Appeal, stay of execution of the lower court’s order pending determination of the Appeal is allowed on these conditions:a)The Appellant shall pay to the 1st Respondent Kshs. 300,000/= towards her maintenance costs within 60 (sixty) days from the date hereof.c)The Appellant shall further deposit Kshs. 400,000/= into court within the same period being security for costs.d)In default of compliance with both or any of the above orders, the Application for stay of execution shall automatically stand dismissed.e)The costs of the Application shall abide the Appeal. 23.Ruling accordingly. J.M. NANG’EAJUDGERULING DELIVERED VIRTUALLY THIS 6TH DAY OF MAY, 2026.In the presence of:Appellant’s Advocate, Mr. Okiro and Mr. Oseko1st Respondent’s Advocate, Ms Mukira2nd Respondent, AbsentCourt Assistant (Jeniffer)J.M. NANG’EAJUDGE