https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10332

**REPUBLIC OF KENYA** **JURISDICTION:** IN THE HIGH COURT, BUNGOMA **FILE NUMBER:** HCC MISC.APP No. E171/2025 **BETWEEN:** JONAH WANDUNGU VS MILICENT NEKESA WAFULA **CORAM:** R.K. ONDIEKI, J **HEARD:** 21st JUNE, 2026. **DELIVERED:** 18th JUNE, 2026. **RULING OF THE COURT:** 1. **Perhaps, it fits this case from the outset to drop anchor so that when I come back to the surface, I do not lose my footing. It is now cast in stone and founded in many jurisprudential passages so** often repeated and yet bear repetition. In *Halsbury’s Law of England, 4th Edition. Vol.* *37 page 330 and 332,* the relevant passage reads: **“The stay of proceedings is a serious, grave and fundamental interruption in the right that a party has to conduct his litigation towards the trial on the basis of the substantive merits of his case, and therefore the court’s general practice is that a stay of proceedings should not be imposed unless the proceeding beyond all reasonable doubt ought not to be allowed to continue…This is a power which, it has been emphasized, ought to be exercised sparingly, and only in exceptional cases….It will be exercised where the proceedings are shown to be frivolous, vexatious or harassing or to be manifestly groundless or in which there is clearly no cause of action in law or in equity. The applicant for a stay on this ground must show not merely that the plaintiff might not, or probably would not, succeed but that he could not possibly succeed on the basis of the pleading and the facts of the case.”** 2. There is also this English passage from the Judgment of *Cotton LJ* inWilson Vs Church *(No 2) (1879) 12 Ch D 454 at p 458,* which I find so apposite to mention. It was said; - **“I will state my opinion that when a party is appealing, exercising his undoubted right of appeal, this court ought to see that the appeal, if successful, is not nugatory.”** 3. In his application dated 26th day of February 2026, the appellant seeks stay of execution of trial court’s judgement delivered on 30th October, 2025 together with decretal orders thereto pending hearing and determination of this application *inter parte*. Further, the appellant seeks stay of execution of the trial court’s judgement delivered on 30th October, 2025 together with decretal orders thereto pending hearing and determination of this appeal. 4. The grounds are on the body of the Notice of Motion as well as in the supporting affidavit which I deduce as hereunder; 1. The trial Court delivered a judgement in *Kimilili CMCC No. E191/2021* on the 30th October, 2025 in favour of the Respondent against the Appellant/Applicant. 2. That the appellant was aggrieved by the Judgement and has already proffered an appeal in the High Court of Bungoma being *Bungoma High Court Civil Appeal No. E171/2025* as evidenced by JW1. 3. The stay of execution ought to be granted as it is not automatic upon filing the Appeal. 4. Unless granted, the appeal will be rendered nugatory and the appellant will suffer substantial loss. 5. The appellant is ready to deposit the logbooks of Motor Vehicles KCK 291, KCK177Q and KCN 134C as security for the decretal sum. 6. The appellant is ready to abide by the conditions of the court pending the outcome of the appeal. 7. The applicant will not be prejudiced in any way and it is only just, fair and expedient that the application be allowed. 5. The Respondent on the other hand filed replying affidavit proposing that the entire decretal sum be deposited in a joint account of both counsel as security. In addition, written submissions dated 7th May, 2026 were filed. I have taken into context, the written submission of both counsel in this appeal. Analysis and Determination: 1. The common thread that runs in all applications for a stay of execution pending appeal in our courts, is well established in a host of decisions and some of them being, the case of *Kenya Shell Ltd vs Kabiru & Another [1986] KLR 410 Gachuhi, JA* said**: - “In an application of this nature, the applicant should show the damages it would suffer if the order of stay is not granted. By granting a stay would mean that status quo should remain as it were before judgment. What assurance can there be of the appeal succeeding? On the other hand granting the stay would be denying a successful litigant of the fruits of his judgment. The applicant has not given to the court sufficient materials to enable it to exercise its discretion in granting the order of stay.** 2. In the case of *Kenya Commercial Bank Ltd vs Sun City Properties Ltd & 5 others* [2012] eKLR the court said**: - “In an application for stay, there are always competing interests that must be considered. These are that a successful litigant should not be denied the fruits of his judgment and that an unsuccessful litigant exercising his undoubted right of appeal should be safeguarded from his appeal being rendered nugatory. These competing interests should always be balanced. In a bid to balance the two competing interests, the courts usually make an order for suitable security for the due performance of the decree as the parties wait for the outcome of the appeal.** 3. In the case of *Federal Commission of Taxation v Myer Emporium Ltd 1986 160 CLR 220*the court held: **“It well established by authority that the discretion which it confers to order stay of proceedings is only exercised where special circumstances exist which justify departure from the ordinary rule that a successful litigant is entitled to the fruits of his litigation pending the determination of any appeal.** 4. In*Arun C Sharma Vs Ashana Raikundalia T/A Rairundalia & Co. Advocates* Justice Gikonyo the Court stated that: **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 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.** Substantial Loss: 1. In respect to this sub-heading, I have these words which fell from **Gikonyo J’s lips in *James Wangalwa & another Vs Agnes Naliaka Cheseto, Misc Application No 42 of 2011 [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. This is what substantial loss would entail, a question that was aptly discussed in the case of *Silverstein Vs. Chesoni [2002] 1KLR 867,* and also in the case of *Mukuma Vs. Abuoga* quoted above. The last case, referring to the exercise of discretion by the High Court and the Court of Appeal in the granting stay of execution, under Order 42 of the CPR and Rule 5(2) (b) of the Court of Appeal Rules, respectively, emphasized the centrality of substantial loss thus: “…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.”** 2. The appellant alleges that he stands to lose the decretal sum. On the other hand, the Respondents have deponed that they are economically disadvantaged. Thus, in event the appeal is successful, the Appellant is likely to suffer substantial loss. But more significantly, the Respondent has not filed any affidavit of means in event the appeal succeeds. No doubt, the appellant will stand stranded in retrieval of the decretal sum. **Unreasonable Delay:** 1. The totality of the evidential affidavits and written submissions of both counsel, show that the Judgement was delivered on 30th October, 2025 and the Notice of Motion was filed 11th February, 2026 but later amended to 26th February, 2026. However, there was no mention of any prejudice by the respondent. In the circumstances, I believe, the delay is not inordinate. Security: 1. The jurisprudence on security need not be gainsaid. When an applicant undertakes to deposit the logbooks for three vehicles, it appears that the applicant has assembled his arsenals and satisfied himself as a heavy-lifter. Put differently, he is certain, that his appeal is not frivolous, vexatious and not intended to deny the Respondent’s fruits of judgment but, has overwhelming chances of success. I am not alone. In Focin Motorcycle Co. Limited Vs Ann Wambui Wangui & another [2018] eKLR, it was stated that:**“Where the applicant proposes to provide security as the Applicant has done, it is a mark of good faith that the application for stay is not just meant to deny the respondent the fruits of judgment. My view is that it is sufficient for the applicant to state that he is ready to provide security or to propose the kind of security but it is the discretion of the Court to determine the security. The Applicant has offered to provide security and has therefore satisfied this ground for stay.”** 2. Having made the above findings, exercise my discretion in favor of the appellant and make the following orders. 1. The applicant’s Notice of Motion for stay of execution pending appeal dated 26th February, 2026, is hereby allowed. 2. In so far as it relates to security for the performance of the decree, the applicant to deposit a sum Four Hundred Thousand (Kshs400,000/) within 45 days from the date of the reading of this ruling in escrow account of both counsel, in a bank of their choice. 3. That in default of depositing of security within the time stipulated in this Order of stay of execution, automatically lapses. 4. The costs of this application do abide the outcome of the appeal. Delivered virtually this 18th June, 2026. Hon. R.K. Ondieki, Judge. In the presence of: Brian Kanja C/A Mr Juma for counsel for Respondent. Ms Labonga for the Appellant. **Proe: I seektyped proceedings and the ruling** **Court: the ty[ed proceedoinfs and the ruling tob esuppied.**