https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7603

Munialo v Comity & another (Miscellaneous Application 12 of 2024) [2026] KEHC 7603 (KLR) (28 May 2026) (Ruling) Neutral citation: [2026] KEHC 7603 (KLR) Republic of Kenya In the High Court at Kakamega Miscellaneous Application 12 of 2024 S Mbungi, J May 28, 2026 Between Stanely Masinde Munialo Applicant and Juliana Auma Comity 1st Respondent Independent Electoral & Boundaries Comission 2nd Respondent Ruling 1.Before this Court is the Applicant’s Notice of Motion dated 16th July 2025, brought under Order 42 Rule 6 of the Civil Procedure Rules, 2010, seeking the following orders;a.That this application be and is hereby certified urgent, heard exparte in the first instance and service of the application be and is hereby dispensed with. (spent)b.That this Honourable court be and is hereby pleased to issue an Order staying execution in this matter as a result of the ruling delivered on 9th July 2025 pending hearing and determination of this application.c.That this Honourable court be and is hereby pleased to issue an order staying execution in this matter as a result of the ruling delivered on 9th July 2025 against the Applicant pending hearing and determination of the intended appeal.d.That the stay of execution orders be and are hereby served upon Jakacha Auctioneers.e.That the costs of this application be provided forf.That such further and other relief be granted to the Applicant as this court deems fit and expedient in the circumstances. 2.The application is supported by the affidavit of the Applicant sworn on the same day by the Applicant who states that this court in a ruling dismissed his application dated 14th April 2025 where he sought for review of orders issued in Kakamega Miscellaneous Reference application No. 12 of 2024. 3.He avers that he is in the process of filing an appeal against the ruling which he asserts that if it is executed he would be exposed to high risk and possibility of an auction by the Respondent and claims that he has a strong viable Appeal with a high chance of success. 4.He contends that he is a man of means and able to comply with any reasonable condition for stay of the execution should it be granted by this court and states that he will suffer great prejudice and substantial loss should the execution process be carried out and contends that the Respondent will suffer no loss if the stay is granted. Applicant submissions 5.The Applicant’s relied on Order 42 Rule 6(2) of the Civil Procedure Rules, which sets out the conditions for grant of a stay of execution pending appeal. On the issue of substantial loss, the Applicant submits that he had satisfied the requirement to demonstrate substantial loss. He relied on the case of RWW VS. EKW (2019) Eklr. 6.He contends that execution of the decree would occasion him substantial loss because he operates extensive farming activities involving tractors, lorries, a dairy programme and other farm machinery. Attachment and sale of these assets would severely affect his livelihood, family, employees and members of the community who depend on the farm for employment and food production. Consequently, unless execution is stayed, the intended appeal would be rendered nugatory and he would suffer irreparable prejudice. 7.On the issue of filing the stay application within the required timelines, the counsel submits that the ruling which the application is based was delivered on 9th July 2025, the notice of appeal was filed on 15th July 2025 and the application for stay of execution pending appeal filed on 17th July 2025. He quoted the case of Jaber Mohse Ali and another vs. Priscillah Boit and another (2014) Eklr. 8.The Applicant states that he is in the process of lodging an appeal within the prescribed timelines and therefore seeks preservation of the subject matter pending the hearing and determination of the intended appeal. 9.On the issue of security for costs the applicant submits that he is willing to provide such security as the court may order for the due performance of the decree or order. He states that he is a man of means and quoted the case of Sharma vs. Ashana Raikundalia T/A Raikundalia. 1st and 2nd Respondent Submissions 10.In their submissions dated 24th March 2026, the respondent raised three issues for determination. On the first issue they submit that the Applicant has failed to satisfy the requirement of allowing for stay of execution by failure to providing adequate security for the due performance of the decree. They argue that the Applicant has previously failed to comply with security orders and should not be granted further discretionary relief. 11.In support of this position, reliance is placed on Mwaura Karuga t/a Limit Enterprises v Kenya Bus Services Ltd, where the court held that security must cover the due performance of the entire decree, including costs and interest, and not merely a portion thereof. 12.The Respondents also cited Arun C. Sharma v Ashana Raikundalia (2014) eKLR where the court emphasized that while security is intended to guarantee performance of a decree, it should not operate as a punishment against a judgment debtor. 13.The Respondents further contend that the Applicant has made no genuine effort to settle the decretal costs. No proposal for payment, whether by instalments or otherwise, has been made. Instead, the Applicant has allegedly filed numerous unmeritorious applications aimed at delaying payment and frustrating the Respondents’ enjoyment of the fruits of their judgment. The court is therefore urged to uphold the principle that costs follow the event and to discourage abuse of the judicial process. 14.Additionally, the Respondents submit that the Applicant has previously disobeyed court orders relating to security for costs and is therefore undeserving of the court’s discretion. They argue that where an applicant fails to comply with conditions imposed by the court, execution should proceed unhindered. 15.Reliance is also placed on Thuo v Kimani & 2 Others (2025) eKLR, where the court observed that a party who refuses to comply with court orders cannot establish sufficient cause for denying the successful litigant the fruits of a judgment. The Respondents submit that the Applicant’s conduct demonstrates lack of good faith and deprives the present application of merit. 16.The Respondents further argue that the intended appeal is frivolous and constitutes an abuse of the court process. They quoted the supreme court decision in Gatirau Peter Munya vs. Dickson Mwenda & 2 others (2014) Eklr, they note that the ruling sought to be appealed against merely dismissed an application for review. Since review is only available on grounds such as discovery of new evidence or an error apparent on the face of the record, the Applicant improperly sought to challenge the substantive findings of the court through a review application instead of an appeal. Consequently, the review application was correctly dismissed, and the intended appeal lacks any arguable basis. 17.The Respondents urge the court to dismiss the application for stay of execution with costs. Analysis and determination 18.I have carefully considered the application, the supporting and opposing affidavits, the written submissions by the parties, and the authorities cited. The main issue for determination by this court is whether the Applicant has met the required threshold to be granted stay of execution pending appeal. 19.The law that supports stay of execution pending appeal is derived from Order 42 Rule 6 of the Civil Procedure Rules, which provides in mandatory terms: “(1) No appeal or second appeal shall operate as a stay of execution or proceedings under a decree or order appealed from except in so far as the court appealed from may order but, the court appealed from may for sufficient cause order stay of execution of such decree or order...(2)No order for stay of execution shall be made under subrule (1) unless—(a)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(b)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.” 20.The jurisdiction to grant stay is discretionary. However, such discretion must be exercised judicially and not capriciously. In Butt v Rent Restriction Tribunal [1982] KLR 417, the Court of Appeal held: -“The power of the court to grant or refuse an application for stay of execution is discretionary. The discretion should be exercised in such a way as not to prevent an appeal. The general principle is that where there is no overwhelming hindrance, a stay should be granted so that an appeal may not be rendered nugatory.” 21.Similarly, in Halai & Another v Thornton & Turpin (1963) Ltd [1990] KLR 365, the Court of Appeal emphasized that an applicant must satisfy the requirements set out under Order 42 Rule 6 before the court can exercise its discretion in his favour. 22.The first issue that this court has to determine before granting the stay is whether the Applicant has demonstrated substantial loss. On the definition of substantial loss, the Court of Appeal in Kenya Shell Limited v Benjamin Karuga Kibiru & Another [1986] KLR 410 stated: as follows “Substantial loss in its various forms is the cornerstone of both jurisdictions for granting stay. That is what has to be prevented.” 23.In the present matter, the Applicant avers that execution has already been commenced and that there exists a real danger of attachment and sale of his farming assets including tractors, lorries, dairy equipment and other machinery utilized in his business. 24.His contention is that attachment and sale of the said assets would disrupt his farming operations, negatively affect his livelihood, his employees who depend on him. He further argues that if execution proceeds before the intended appeal is heard, the appeal would be rendered nugatory. 25.The Respondents on the other hand contend that the Applicant has merely made generalized allegations and has failed to establish actual substantial loss. They argue that execution of a lawful decree cannot by itself constitute substantial loss. 26.I am in agreement with the principle that execution of a lawful given decree does not automatically amount to substantial loss. A successful litigant is entitled to enjoy the fruits of his judgment. This principle was aptly stated in Machira T/A Machira & Co. Advocates v East African Standard (No.2) [2002] KLR 63, where the court observed that:-“A successful party is entitled to the fruits of his judgment and should not be deprived of the same without just cause.” 27.However, each case must be determined on its own individual circumstances. The court must balance the right of the successful litigant to enjoy the fruits of judgment against the equally important right of an unsuccessful litigant to pursue an appeal. 28.This was so rightfully quoted in the case of RWW v EKW [2019] eKLR, where the court stated that “The purpose of an application for stay of execution pending appeal is to preserve the subject matter in dispute so that the rights of the appellant who is exercising the undoubted right of appeal are safeguarded and the appeal, if successful, is not rendered nugatory.” 29.I have considered the parties evidence before this court. I do note that the Applicant has demonstrated that execution proceedings have been initiated through auctioneers and that attachment of movable assets is imminent. If attachment and sale proceed before the intended appeal is heard, recovery of such assets may prove difficult or impossible. 30.In my view, the possibility of sale by public auction of productive farming machinery and equipment before the appellate process is exhausted constitutes a sufficient basis upon which this court may find that substantial loss has been demonstrated. 31.While the Respondents contend that the intended appeal lacks merit, it is not the function of this court at this stage to determine the merits of the intended appeal. The court is only required to determine whether sufficient cause exists to preserve the subject matter pending appeal. 32.The Supreme Court in Gatirau Peter Munya v Dickson Mwenda Kithinji & 2 Others [2014] eKLR observed that preservation orders are intended to safeguard the substratum of litigation pending appellate proceedings. 33.Consequently, I am persuaded that the Applicant has established the likelihood of substantial loss if stay is denied. 34.On whether the application was filed without unreasonable delay, both parties are in agreement that the application was filed within the reasonable time. The ruling that is being appealed against was delivered on 9th July 2025. While the notice of appeal was filed on 15th July 2025 and thereafter filed the present application on 16th July 2025. 35.There was therefore a lapse of approximately seven days from the date of delivery of the ruling to the filing of the application. Such delay cannot be said to be inordinate or unreasonable. 36.I am satisfied that the present application was filed expeditiously and without unreasonable delay. 37.On whether the applicant offered security, the Respondents submit that the Applicant has not provided any concrete proposal regarding security and has previously failed to comply with orders issued by the court. 38.The Applicant on the other hand has expressly stated that he is willing to comply with any conditions regarding security imposed by the court. Although he has not proposed a specific amount, the law does not require an applicant to dictate the form of security. It is the court that determines appropriate security depending on the circumstances of each case. 39.The court must also bear in mind that the purpose of security is not to deny a litigant access to the appellate process but rather to balance the competing interests of the parties. 40.In the circumstances of this case, I am satisfied that the interests of justice would be adequately safeguarded by requiring the Applicant to deposit security as a condition for stay. 41.On whether sufficient cause has been established the Respondents have strongly argued that the intended appeal is frivolous and constitutes an abuse of the court process because the impugned ruling merely dismissed an application for review. 42.While that argument may ultimately fall for determination before the appellate court, it would be inappropriate for this court at this interlocutory stage to delve into the merits of the intended appeal in a manner that may prejudice the appellate process. 43.Having found that the application was filed promptly, that substantial loss has been demonstrated and that appropriate security can be ordered, I am satisfied that sufficient cause exists to warrant preservation of the status quo pending the intended appeal. 44.In balancing the competing rights of both parties, I am persuaded that the ends of justice would be better served by granting a conditional stay rather than allowing immediate execution. 45.Consequently, the Notice of Motion dated 16th July 2025 is hereby allowed on the following terms: -a.There shall be a stay of execution of the ruling, and all consequential orders arising from the ruling delivered on 9th July 2025 pending the hearing and determination of the intended appeal.b.The stay granted herein is conditional upon the Applicant depositing the entire decretal sum and taxed costs, if any, in an interest earning joint account in the names of the parties’ advocates within forty-five days from the date hereof.c.In default of compliance with order (b) above within the stipulated period, the stay granted herein shall automatically lapse without further order of the court.d.Costs of the application shall abide the outcome of the intended appeal.e.Orders accordingly.f.Mention 23.9.2026 for directions on the appeal. DATED SIGNED, AND DELIVERED IN OPEN COURT AT KAKAMEGA THIS 28TH OF MAY, 2026.S.N. MBUNGIJUDGEIn The Presence of;CA: Angong’a/VelmaMr Wilunda for the 1st and 2nd Respondents present online.Mr Menda absent.