https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7082

Waithaka & another v Gachoki & another (Legal and Personal Representatives of the Estate of Francis Mwangi Kahugu (Deceased)) (Civil Appeal E031 of 2026) [2026] KEHC 7082 (KLR) (14 May 2026) (Ruling) Neutral citation: [2026] KEHC 7082 (KLR) Republic of Kenya In the High Court at Thika Civil Appeal E031 of 2026 FN Muchemi, J May 14, 2026 Between Charles Waithaka 1st Appellant Judy Njambi Ndichu 2nd Appellant and Florence Muthoni Gachoki & Esther Muthoni Kahugu (Legal and Personal Representatives of the Estate of Francis Mwangi Kahugu (Deceased) Respondent Ruling Brief Facts 1.The application for determination dated 4th February 2026 seeks for orders of stay of execution in respect of the judgment in Ruiru MCCC No. E298 of 2025 delivered on 30th January 2026 pending the hearing and determination of the appeal. 2.In opposition to the application, the respondents filed a Replying Affidavit dated 25th February 2026. Applicants’ Case 3.The applicants state that judgment in the lower court was delivered on 30th January 2026 in favour of the respondents for the sum of Kshs. 4,192,550/-. Being dissatisfied with the said judgment, the applicants aver that they lodged an appeal and filed their memorandum of appeal which has high chances of success. The applicants are apprehensive that following the judgment delivered on 30th January 2026 and the order of stay of execution lapsing on 1st March 2026, the respondents are likely to proceed with execution of the said judgment. The applicants argue that if the orders sought are not granted, the appeal would amount to an academic exercise. 4.The appellants undertake to file the record of appeal expeditiously within such time as the court may order upon receipt of the typed copies of the proceedings of the lower court. The applicants state that they are willing to abide by any conditions set by the court for the grant of orders sought herein. The Respondents’ Case 5.The respondents state that their case before the trial court was supported by sufficient, credible and uncontroverted evidence which was duly considered by the learned trial magistrate prior to delivery of judgment. Further, the appellants were accorded a full opportunity to prosecute and defend their case before the trial court and they cannot seek to re-litigate issues properly determined by the court. 6.The respondents argue that the applicants have failed to satisfy the mandatory requirements for grant of stay of execution under Order 42 Rule 6(2) of the Civil Procedure Rules. Further, the instant application and appeal have not been brought in good faith and do not disclose any arguable grounds deserving of the court’s discretion. The respondents state that in the event the court allows the application, the applicants be directed to deposit the decretal sum of Kshs. 4,192,550/- in court and pay the costs of the lower court suit. 7.Parties disposed of the application by way of written submissions but the respondents elected not to put in written submissions. The Applicants’ Submissions 8.The applicants rely on Order 42 Rule 6 of the Civil Procedure Rules and submit that their appeal raises triable issues involving the issue of liability while no eye witness testimony was tendered by the respondents as to how the accident occurred and the damages awarded were exorbitant and not commensurate to cases of a similar nature. The applicants submit that the respondents have failed to provide any information to sufficiently prove their ability to repay the sum of Kshs. 4,192,550/- and thus if the appeal succeeds, they will be unable to recover the said sum thus suffering substantial loss. To support their contentions, the applicants rely on the cases of Dickson Muricho Muriuki vs Timothy Kagondu Muruiki & 6 Others [2013] eKLR and Henry Sakwa Maloba vs Boniface Papando Tsabuko [2020] eKLR. 9.The applicants submit that they are not opposed to depositing half the decretal sum in court as a condition for the grant of stay orders. The Law Whether the applicants have satisfied the conditions set out in Order 42 Rule 6 of the Civil Procedure Rules for stay of execution pending appeal 10.It is trite law that an appeal does not operate as an automatic stay of execution. The conditions which a party must establish in order for the court to order stay of execution are provided for under Order 42 Rule 6(2) Civil Procedure Rules. Order 42 Rule 6 of the Civil Procedure Rules stipulates:-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 and whether the application for such stay shall have been granted or refused by the court appealed from the court to which such appeal is preferred shall be at liberty on application being made to consider such application and to make such order thereon as may to it seem just and any person aggrieved by an order of stay made by the court from whose decision the Appeal is preferred may apply to the appellate court to have such orders set aside.2.No order for stay of execution shall be made under sub rule 1 unless:-a.The Court is satisfied that substantial loss may result to the 1st 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.Thus, under Order 42 Rule 6(2) of the Civil Procedure Rules, an applicant should satisfy the court that:1.Substantial loss may result to him/her unless the order is made;2.That the application has been made without unreasonable delay; and3.The applicant has given such security as the court orders for the due performance of such decree or order as may ultimately be binding on him. 12.Substantial loss was clearly explained in the case of James Wangalwa & Another vs Agnes Naliaka Cheseto [2012] eKLR:-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. 13.The applicants argue that they are apprehensive that the respondents shall proceed with execution of the judgment at any time rendering the appeal nugatory. 14.It is trite law that execution is a lawful process and it is not a ground for granting stay of execution. The applicants are required to show that execution shall irreparably affect them or will alter the status quo to their detriment, thereby rendering the appeal nugatory. On perusal of the record, the applicants have just stated that there is an imminent risk of execution which would render the appeal an academic exercise and subvert the ends of justice. It is only in their submissions that the applicants raise the issue of the inability of the respondents to refund the decretal sum in the event the appeal succeeds. It is trite law that submissions are not pleadings and the applicants ought to have expressed the said sentiments in their affidavit to give a chance to the respondents to respond. The applicants have failed to show how execution shall irreparably affect them and render the appeal nugatory. It is therefore my considered view that the applicants have not demonstrated the substantial loss they stand to suffer. Has the application has been made without unreasonable delay 15.Judgment was delivered on 30th January 2026 and the applicants filed the instant application and the memorandum of appeal on 10th February 2026, thus the application has been filed timeously. Security of costs 16.The purpose of security was explained in the case of Arun C. Sharma vs Ashana Raikundalia t/a Raikundalia & Co. Advocates & 2 Others [2014] eKLR the court stated:-“The purpose of the security needed under Order 42 is to guarantee the due performance of such decree or order as may ultimately be binding on the applicant. It is not to punish the judgment debtor…..Civil process is quite different because in civil process the judgment is like a debt hence the applicants become and are judgment debtors in relation to the respondent. That is why any security given under Order 42 Rule 6 of the Civil Procedure Rules acts as security for the due performance of such decree or order as may ultimately be binding on the applicants. I presume the security must be one which can serve that purpose. 17.It is trite that the issue of security is discretionary and it is upon the court to determine the same. The applicants are not opposed to depositing half the decretal amount in court as security for the due performance of the decree. 18.Additionally, grant of stay being a discretionary order, the court is expected to balance out the interests of the successful litigant and the applicant’s unfettered right to file an appeal to fully ventilate his grievances. This was well stated in the case of M/s Porteitz Maternity vs James Karanga Kabia Civil Appeal No. 63 of 1997 where the court held:-That the right of appeal must be balanced against an equally weighty right, that of the plaintiff to enjoy the fruits of the judgment delivered in his favour. There must be a just cause for depriving the plaintiff of that right. 19.Bearing the said balance in mind and considering the provisions of Order 42 Rule 6 of the Civil Procedure Rules, it is my considered view that the applicants have not met the threshold of granting stay of execution pending appeal. Furthermore, I have perused the grounds of appeal in the memorandum of appeal dated 4th February 2026 and without going into the merits of the appeal noted that they do not demonstrate high chances of success of the intended appeal. 20.Accordingly, it is my considered view that the application dated 4th February 2026 lacks merit and is hereby dismissed with costs. 21.It is hereby so ordered. RULING DELIVERED VIRTUALLY, DATED AND SIGNED AT THIKA THIS 14TH DAY OF MAY 2026.F. MUCHEMIJUDGE