https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/13096

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT MERU** **HCCSA/E035/2026** **DK RONO, J** **21 JULY 2026** **BETWEEN** **LYDIA WANJA ............................................................... APPELLANT/APPLICANT** **AND** **GEOLAND CREDIT LIMITED .........................................................RESPONDENT** **RULING** 1. Before this Court is the Notice of Motion dated 8th July 2026 filed by the Appellant/Applicant seeking an order of stay of execution of the Warrant of Attachment dated 17th March 2026 and the subsequent Proclamation dated 18th March 2026 issued pursuant thereto. The application is made pending the hearing and determination of the Applicant’s appeal against the ruling delivered by Hon. S.M. Azei, Adjudicator of the Meru Small Claims Court, on 6th July 2026. 2. This Court has carefully perused the entire record of proceedings. It is evident that the genesis of the dispute lies in a loan agreement entered into between the Applicant and the Respondent. Following the Applicant's default in repayment of the agreed sums, the Respondent instituted proceedings before the Small Claims Court at Meru in SCCCOMM No. E021 of 2023 seeking recovery of the outstanding loan together with interest. Upon hearing the matter, the Small Claims Court (Hon. Lilian Wangari Maina, Adjudicator) entered judgment in favour of the Respondent on 20th March 2023 in the sum of Kshs.1,000,000/= together with the attendant reliefs. 3. The Applicant did not lodge an appeal within the period prescribed by section 38 of the Small Claims Court Act. Instead, on 9th May 2023, she approached the High Court in Meru Miscellaneous Application No. E034 of 2023 seeking enlargement of time within which to appeal and an order of stay of execution pending the intended appeal. 4. In a ruling delivered on 21st June 2023, Mureithi J. exercised the Court's discretion in the Applicant's favour. The learned Judge granted leave to appeal out of time and, in order to balance the competing interests of the parties, granted a conditional stay of execution upon the Applicant paying Kshs.400,000/= to the Respondent and depositing the balance of Kshs.600,000/= into a joint interest-earning escrow account within thirty (30) days. The Applicant was further directed to file the Record of Appeal within sixty (60) days. Those orders were neither ambiguous nor onerous. They represented a considered judicial accommodation intended to preserve the Applicant's right of appeal while safeguarding the Respondent's entitlement to enjoy the fruits of its judgment. 5. The record, however, demonstrates that the Applicant did not comply with any of those conditions. She neither paid the sum ordered by the Court nor deposited the balance into the joint account. More significantly, although an appeal was eventually filed as HCCA No. E120 of 2023, it was never prosecuted and was ultimately dismissed for want of prosecution on 7th May 2025. The conditional stay granted by the High Court therefore lapsed through the Applicant's own default, leaving the Respondent at liberty to execute the judgment lawfully obtained in its favour. 6. Following the dismissal of the earlier appeal, the Respondent commenced execution proceedings culminating in the issuance of warrants of attachment and proclamation in satisfaction of the decree. Rather than comply with the judgment or seek appropriate relief before the High Court that had previously exercised its discretion in her favour, the Applicant returned to the Small Claims Court through an application dated 20th March 2026 seeking a stay of execution, reconciliation of accounts and permission to liquidate the decretal sum by instalments. 7. That application was heard by Hon. Sylvia Martha Azei, Adjudicator, who, in a ruling delivered on 6th July 2026, dismissed it on the basis that it merely sought to reopen matters that had already been determined, rejected reliance on historical loan statements that ought to have been produced earlier, and held that the Respondent was at liberty to proceed with execution. Aggrieved by that decision, the Applicant lodged the present appeal together with the instant application seeking stay of execution pending appeal. 8. The application invokes the jurisdiction of this Court under Order 42 Rule 6 of the Civil Procedure Rules, 2010, which empowers an appellate court to grant a stay of execution where sufficient cause has been demonstrated. The Applicant’s case is that unless execution is stayed, the intended appeal shall be rendered nugatory and substantial injustice shall be occasioned to her. 9. The Applicant contends that the impugned warrant demands payment of Kshs. 718,258.00, whereas the actual outstanding balance, based on documentary records emanating from the Respondent itself, is substantially lower. 10. In support of that contention, the Applicant relies upon internal loan statements issued by the Respondent dated 12th November 2025. According to the Applicant, those statements acknowledge payments amounting to Kshs. 683,282.93, leaving an outstanding balance of approximately Kshs.394,975.07. 11. The Applicant places considerable emphasis on the alleged discrepancy between the amount demanded under the warrant and what she considers the correct outstanding balance. She equally complains that property belonging to third parties has been proclaimed. Those are matters which, if properly established, may constitute arguable grounds of appeal. However, the existence of arguable grounds is not, without more, sufficient to warrant the grant of stay. An applicant must satisfy all the conditions stipulated under Order 42 Rule 6(2), including demonstrating substantial loss and furnishing security for the due performance of the decree. 12. First, she submits that she has demonstrated substantial loss. According to the Applicant, the discrepancy between Kshs.718,258.00 demanded under the warrant and the admitted balance of Kshs.394,975.07 raises a serious question as to whether execution is proceeding on an accurate basis. 13. Secondly, the Applicant argues that execution against property belonging to third parties would result in grave prejudice incapable of adequate compensation by damages. She submits that once third-party property is sold through execution proceedings, the resulting disputes and consequences cannot easily be reversed even if the appeal eventually succeeds. 14. Thirdly, the Applicant submits that she has approached the Court in good faith and is willing to comply with reasonable conditions imposed by the Court. She proposes payment of the amount she accepts as owing, with the disputed balance secured pending determination of the appeal. 15. The Applicant therefore urges the Court to exercise its discretion in favour of preserving the subject matter of the appeal by granting a conditional stay. 16. The Respondent opposes the application and maintains that the Applicant has not met the threshold required under Order 42 Rule 6(2) of the Civil Procedure Rules. The Respondent’s position is that the application is merely an attempt to delay execution and deprive it of the fruits of a judgment lawfully obtained against the Applicant. 17. The Respondent argued that the Applicant has previously failed to comply with conditions imposed by the Court and that her present application is a continuation of a pattern intended to frustrate recovery of the decretal amount. The Respondent disputes the Applicant’s computation of the outstanding balance and maintains that the amount received towards settlement of the debt is only Kshs.360,000.00. 18. The Respondent further argues that the internal statements relied upon by the Applicant constitute historical documents which ought to have been produced before the trial court and cannot be introduced at this stage to undermine a concluded judgment it was further the Respondent’s position that the Applicant has not demonstrated any substantial loss and that the mere existence of an appeal does not entitle an unsuccessful litigant to an automatic stay of execution. The Respondent therefore urges the Court to dismiss the application and allow execution to proceed. 19. Having considered the application, the affidavits in support and opposition thereto, the submissions by learned counsel, and the entire record before this Court, the issues arising for determination are: 20. Whether the Applicant has satisfied the legal threshold for the grant of stay of execution pending appeal under Order 42 Rule 6 of the Civil Procedure Rules. 21. The jurisdiction of this Court to grant a stay of execution pending appeal is anchored on Order 42 Rule 6 of the Civil Procedure Rules, 2010. The provision confers a discretionary jurisdiction upon the Court, which must be exercised judiciously and on sound legal principles. The purpose of that discretion is not to shield a judgment debtor from the consequences of a lawful decree, but to preserve the subject matter of an appeal where circumstances demonstrate that justice so demands. 22. Order 42 Rule 6(2) provides that an applicant seeking stay of execution must satisfy the Court that: 23. substantial loss may result unless the order is made; 24. the application has been made without unreasonable delay; and 25. such security as the Court may order for the due performance of the decree has been provided. 26. These requirements are conjunctive. The applicant must demonstrate compliance with each of them before the Court can exercise its discretion in his or her favour. Failure to satisfy any of the conditions disentitles an applicant to the relief sought. 27. The principles governing the exercise of this discretion were set out by the Court of Appeal in *Butt v Rent Restriction Tribunal [1982] KLR 417,* where Madan JA observed that the power to grant or refuse stay is discretionary and should be exercised in a manner that does not prevent an appeal from being rendered nugatory. However, that discretion is not exercised in a vacuum. It must be balanced against the equally important principle that a successful litigant is entitled to enjoy the fruits of his or her judgment. 28. Similarly, in *Reliance Bank Ltd v Norlake Investments Ltd [2002] 1 EA 227,* the Court of Appeal emphasised that judicial discretion must be exercised upon reasoned principles and not on sympathy, sentiment or mere convenience. *Whether the Application Was Made Without Unreasonable Delay* 1. The ruling sought to be challenged was delivered by the Small Claims Court on 6th July 2026. The present application was filed on 8th July 2026. In that narrow sense, the Applicant moved the Court without unreasonable delay. 2. However, while the immediate filing of the present application satisfies the express requirement under Order 42 Rule 6(2)(a), the Court is entitled, when exercising its discretion, to consider the broader conduct of the litigant and the history of the proceedings. The exercise of discretion under Order 42 Rule 6 is equitable in nature and requires the Court to consider whether the applicant approaches the Court with clean hands and whether the relief sought would advance or undermine the administration of justice. 3. The record reveals that this is not the first occasion upon which the Applicant has sought the intervention of this Court in relation to the judgment delivered by the Small Claims Court on 20th March 2023. The Applicant previously obtained leave to appeal out of time and was granted an opportunity to challenge the judgment. The Court imposed conditions which were intended to balance her right of appeal with the Respondent’s right to enjoy the fruits of judgment. 4. The Applicant, however, failed to comply with those conditions and failed to diligently prosecute the appeal that had been filed pursuant to the leave granted. Consequently, the appeal was dismissed for want of prosecution. 5. That history is material. The Court cannot consider the present application as though it arises in isolation. A litigant who has already been allowed to challenge a judgment, but fails to utilize that opportunity diligently, cannot ordinarily seek repeated indulgence from the Court on substantially similar grounds whenever execution becomes imminent. *Whether the Applicant Has Demonstrated Substantial Loss* 1. The cornerstone of an application for stay of execution is the demonstration of substantial loss. The Court of Appeal in *Kenya Shell Limited v Benjamin Karuga Kibiru & Another [1986] KLR 410* held that substantial loss is the foundation upon which an application for stay rests. 2. Substantial loss is not established merely because execution will proceed. Execution is a lawful process through which a successful litigant realizes the benefit of a judgment. The applicant must demonstrate that execution will occasion prejudice of such a nature that the appeal, if successful, would be rendered nugatory or that the applicant would suffer loss incapable of adequate compensation. 3. In *Machira t/a Machira & Co. Advocates v East African Standard (No. 2) [2002] KLR 63,* the Court of Appeal stated that a party seeking stay must establish the specific loss that would arise if execution proceeds. 4. In the present matter, the Applicant relies substantially on a dispute regarding reconciliation of payments made towards settlement of the decree. She contends that the decretal sum demanded under execution has been overstated and relies on internal statements indicating alleged payments. 5. This Court acknowledges that the alleged discrepancy raises an arguable question regarding the computation of the outstanding amount. However, an arguable dispute as to accounts does not, without more, amount to substantial loss within the meaning of Order 42 Rule 6. The Applicant has not demonstrated that execution of the decree would occasion irreversible prejudice or render the intended appeal nugatory. 6. Further, the alleged prejudice largely arises from the Applicant’s own failure to resolve the matter earlier through the appeal process which she had commenced but failed to prosecute. The Court cannot convert the discretionary remedy of stay into a mechanism for reviving a dormant appeal or postponing indefinitely the enjoyment of a lawful judgment. 7. The Court is also not persuaded that the allegation that third-party property has been proclaimed provides sufficient basis for a stay. The Civil Procedure Rules provide a specific mechanism through objection proceedings for third parties claiming an interest in attached property. Those remedies belong to such third parties and cannot, without more, prevent a decree-holder from enforcing a judgment regularly obtained. *Security for Due Performance of the Decree* 1. The Applicant has expressed willingness to pay what she considers to be the undisputed balance and to provide security for the disputed amount. The Court appreciates that willingness. However, the provision of security, though an important requirement under Order 42 Rule 6(2), cannot by itself cure failure to establish substantial loss. 2. The requirement for security is intended to protect the decree-holder against the risk of delay occasioned by an appeal. As held in *Halai & Another v Thornton & Turpin (1963) Ltd [1990] KLR 365,* once the Court grants a stay, provision of security becomes mandatory. 3. Similarly, in *Focin Motorcycle Co. Limited v Ann Wambui Wangui & Another [2018] eKLR, t*he Court observed that security serves to assure the decree-holder that the decree will ultimately be satisfied should the appeal fail. 4. In the present circumstances, although the proposed security arrangement appears reasonable when considered in isolation, the Court must consider the entire history of the matter. The Applicant had previously been granted an opportunity upon terms intended to secure the Respondent’s interests, yet failed to comply with those terms and failed to prosecute the appeal. 5. Granting a further conditional stay on terms substantially similar to those previously ignored would risk undermining the authority of court orders and encouraging repeated applications whenever execution is pursued. 6. The Court is mindful of the constitutional right of access to justice and the right of appeal. However, those rights must be exercised within the framework of orderly judicial process and respect for court orders. The right of appeal cannot be used as a means of frustrating a successful litigant from enjoying the fruits of a judgment or as an avenue for endless extensions of litigation. 7. Having considered the totality of the circumstances, this Court finds that although the Applicant has raised an arguable concern regarding reconciliation of payments, she has failed to demonstrate substantial loss as required under Order 42 Rule 6(2) of the Civil Procedure Rules. 8. The Court further finds that the Applicant’s previous failure to comply with conditions imposed by this Court and her failure to prosecute the earlier appeal weigh heavily against the exercise of discretion in her favour. 9. The overriding objective under Sections 1A and 1B of the Civil Procedure Act requires the Court to facilitate the just, expeditious and proportionate resolution of disputes. It does not require the Court to perpetuate litigation or protect a litigant from the consequences of persistent non-compliance with court orders. 10. In the circumstances, the Applicant has failed to satisfy the threshold for grant of stay of execution pending appeal. 11. Accordingly, this court makes the following orders; 12. The Notice of Motion dated 8th July 2026 lacks merit and is hereby dismissed. 13. The interim orders of stay are hereby discharged forthwith. 14. The Applicant shall bear the costs of this application. 15. Orders accordingly. Signed, Dated and Delivered at Meru this 21st July 2026 **DK RONO** **JUDGE**