https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11603

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT NAIROBI** **MILIMANI LAW COURTS** **COMMERCIAL & TAX DIVISION** **HCCA E052 OF 2025** **TOGI INVESTMENTS (K) LIMITED............................................................APPELLANT** **VERSUS** **DANIEL WAITHANJI MWANGI (suing as the administrator of the esate of) JOSEPH MWANGI G. KANYONGO……………………….……...1ST RESPONDENT** **LYDIA KOKI......................................................................................2ND RESPONDENT** **RULING** 1. The appellant filed the notice of motion dated 21.2.2025 seeking stay of execution of the ruling of **Hon. Rawlings Liluma Musiega** on 10.2.2025 and the decree passed on 15.4.2023 in **Milimani MCCOMMSU/E025/2023**. 2. The application is mainly anchored on **Order 42 Rule 6 (1) of the Civil Procedure Rules**. It is supported by the affidavits sworn by the appellant on 21.2.2025 and on 1.10.2025 as well as written submissions dated 1.10.2025. 3. The major grounds are that the appellant wished to prosecute its intended appeal and is apprehensive that unless stay is granted, the impending risk of execution will materialize and that he will suffer substantial loss and irreparable damage. 4. The appellant highlighted that the subject of the ruling was his objection application; that he was not a party to the proceedings between the 1st and 2nd respondents; that the decree issued to the 1st respondent was against the 2nd respondent and that the warrants of attachment and sale were not issued against him. He thus asserted that he has a good and arguable appeal with high chances of success. 5. The appellant undertook to abide by any order that the court may impose regarding security. 6. The appellant relied on several cases discussing the guiding principles for the grant of stay of execution pending an appeal. Key among them are **Butt v Rent Restriction Tribunal [1982] KLR 417**on the court’s discretion to grant stay to precent an appeal from being render nugatory,**Arun C Sharma v Ashana Raikundalia t/a Raikundalia & Co. Advocates & 2 Others [2014] eKLR**to the effect that the form and amount security is the court’s discretion and**Kenya Tea Growers Association v Kenya Planters & Agricultural Workers Union [2012] eKLR**on the meaning of an arguable appeal. **Response** 1. The 1st respondent opposed the application through grounds of opposition dated 21.4.2025, replying affidavit sworn by the 1st respondent, **Daniel Waithanji Mwangi** on 1.4.2025. He also filed written submissions dated 23.10.2025. 2. The 1st respondent’s foremost contention is that the application is frivolous, vexatious, unmerited, fatally defective, bad in law and an abuse of the court process. He also contended that the application has been brought in bad faith and constitutes a delaying tactic designed to bar him from realizing the fruits of his judgment. 3. The 1st respondent argued that the applicant has not met the threshold for the stay orders sought as he has not demonstrated willingness or ability to furnish security for the performance of the decree if the appeal fails. 4. The 1st respondent also argued that the applicant has not demonstrated how he would suffer substantial loss if stay is not granted. 5. The 1st respondent asserted that if stay is granted, he would be prejudiced as he would be left in a precarious situation with no way to realize the fruits of the judgment if the appeal is unsuccessful. 6. The 1st respondent claimed that he is in a good position to satisfy the decree in the appellate court if the appeal is successful. He deposed that the estate of the deceased has been carrying out business and was able to deliver goods worth Kshs. 1,583,640 to the 2nd respondent who is yet to satisfy the decree issued against her. 7. For these reasons, the 1st respondent urged the court to dismiss the application with costs and affirm its right to proceed with execution. 8. The 1st respondent cited numerous authorities. Major thereof are **Kenya Shell Ltd v Benjamin Karuga Kibiru & Another [1986] KLR 410** on the requirement to prove substantial loss, **Michael Ntouthi Mitheu v Abraham Kivondo Musau [2021] eKLR**, that bare statement of willingness does not satisfy the requirement for security and **Dennis Mogambi Mang’are v Attorney General & 3 others [2012] eKLR** on arguable appeal. **Analysis and Determination** 1. Grant of stay of execution pending an appeal is discretionary. The exercise of discretion is guided by principles and not whims or caprice, considering the circumstances of a case. 2. ***Order 42 Rule 6 (2) of the Civil Procedure Rules*** provides: - ***“(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.”*** 1. In determining such an application, there is a need to balance the applicant’s right to appeal with the respondent’s right to enjoy the fruits of its judgment. **Machira T/A Machira & Co Advocates vs. East African Standard (No 2) [2002] KLR 6** 2. The application must also be brought without undue delay. 3. The 1st respondent conceded that the application has been brought without unreasonable delay. 4. The applicant asserted that he has an arguable appeal. On the other hand, that the applicant’s claim of ownership of the attached goods is unsupported by evidence. 5. The applicant and the respondent have further both raised questions that will appropriately be considered and addressed in the appeal. 6. From the memorandum of appeal, I do not think that the appeal is frivolous. 7. Therefore, I find that the applicant has shown a sufficient cause. 8. The applicant asserted that he stands to suffer substantial loss if stay is not granted as the goods that he claims ownership of will be attached yet the decree is against the 2nd respondent. 9. Conversely, the 1st respondent contended that the applicant has not demonstrated substantial loss and that the estate of the deceased can reimburse the applicant if the appeal is successful. 10. Calling for a proportioned balance of rights. The requirement for security supplies the balance. 11. The applicant indicated its willingness to furnish security. 12. It is within the court’s discretion to determine suitable security depending on the circumstances of the case. **Arun C. Sharma v Ashana Raikundalia t/a Raikundalia & Co. Advocates & 2 Others [supra]** 13. Overall, I am satisfied that the applicant has made out a case for grant of a stay pending appeal but upon provision of security that secures the rights of both parties. **Disposal** 1. In conclusion, the court makes the following orders: - 2. **A stay of execution is issued pending the hearing of the intended appeal or until further orders of the court.** 3. **In consideration of the stay in (1) above, the applicant shall deposit a sum of Kshs. 1,000,000 in an interest earning account in the joint names of both legal counsel within 45 days from today.** 4. **If the applicant fails to comply with these orders within the time allowed, the stay order will lapse automatically.** 5. **No order as to Costs given the outcome of the application.** **Dated, signed and delivered at Nairobi through Microsoft Teams online application this 16th day of July, 2026** **------------** **F. Gikonyo M** **Judge** **In the presence of: -** Mungai for Makanga for 1st respondent Onguti for Appellant CA- Ivan/Aggrey