https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12526

Wanjiru & another v Tritonic (Small Claims Appeal E451 of 2026) [2026] KEHC 12526 (KLR) (Civ) (22 July 2026) (Ruling) Neutral citation: [2026] KEHC 12526 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Law Courts) Civil Small Claims Appeal E451 of 2026 MS Shariff, J July 22, 2026 Between Esther Wanjiru 1st Appellant Links Geliwa Limited t/a Geliwa Enterprise 2nd Appellant and Tritonic Respondent Ruling A. Application 1.The Appellants have approached this court vide a Notice of Motion dated 24th June 2026, which is supported by an affidavit of Esther Njeri Waruhiu, sworn on even date and they crave for the following orders:1.Spent2.Spent3.That pending hearing and determination of this appeal there be and is hereby ordered that there be a stay of execution of the order obtained by the Decree Holder/Respondent on or about the 19th day of June 2026restraing the Decree Holder/Respondent, it’s servants, agents, and/or employees or any person on behalf of the respondent or own their own behalf from arresting and/or detaining Judgment Debtors/Applicants on the purported decretal sum of KES:211,740.4.That the costs of this Application be provided for. 2.The respondent reacted to this application by filing a replying affidavit sworn on 1st July 2026 by Aden Tobias, a director of the respondent who was categorical that the appellants are undeserving grant of stay orders due to their failure to comply with the provisions of order 42 Rule 6 of the Civil Procedure Rules; by failing to offer security for the due settlement of the judgment sum in the event the appeal fails. 3.The respondent has also assaulted the application on grounds that it is had been made late in the day given that warrants for attachment were issued on 9Th July 2025 and that the appellants sole aim is to frustrate execution and to that end the 1st appellant has relocated her business from Kawangware to El Paso in Ngong so as to avoid execution. 4.The respondent maintain that the appellant’s have failed to demonstrate the existence of exceptional and sufficient circumstances to warrant grant of orders of stay of execution. 5.It is the respondent’s position that the appellants have failed to show the respondent’s impecunity that would translate to it’s failure to reimburse the judgment sum were execution to proceed. 6.Aden Tobias deposes that whereas the appellants had proposed to settle the judgment sum by way of monthly instalments of Ksh 25,000, they reneged on their proposal and have now exhibits mpesa messages of transactions made in 2023 prior to the filing of the primary suit in 2024. Further that no reconciled statements of accounts have been exhibited to prove the alleged part payment of the judgment sum. 7.The respondent further maintain that the application herein was filed irregularly by new advocates who did not represent the appellants in the subordinate court. B. Submissions 8.This application was argued orally. Mr Bw’Oigara for the Appellants submitted that the appellants are only ready and willing to offer security of Ksh 20,000 against the judgment sum of Ksh 221,000 and he cited the case of RWW Vs EKW (2019) eKLR for the proposition that courts must balance the interest of all parties when determining the issue of costs. He further submitted that the 1st appellant business went under and that she is currently employed and earns a meagre Ksh 300 per day wherefore this court ought not make any decision in vain by ordering the deposit of the entire judgment sum. Further that such an order would be oppressive to the appellants. 9.Ms Nyagasi counsel for the respondent opposed the proposal that the appellants be ordered to deposit security of Ksh 20,000 and she instead urged this court to order that the entire judgment sum of Ksh 221,000 be deposited in a joint interest earning account of parties’ advocates pending hearing and determination of the appeal. 10.Counsel for the respondent further submitted that the 1st Appellant had relocated to El Paso in Ngong from Kawangware where she continues to trade in the commodities supplied to her by the respondent. Analysis and determination 11.I have duly considered the application herein, the rival affidavits sworn in support thereof and in opposition thereto. I have also considered the rival submissions of parties’ counsels and the sole issue that arises for determination is whether the appellants have made out a case for stay of execution pending the hearing and determination of this appeal. 12.Stay of Execution is prescribed for under order 42 Rule 6 of the Civil Procedure Rules which reads verbatim as below: 13.6.(1)No appeal or second appeal shall operate as a stay of execution or proceedings under a decree or order appealed from except appeal case of 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 order set aside. 14.(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 applicant unless the order is made and that the application has been made without unreasonable delay; and 15.(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. 16.The appellants herein have to satisfy this court that they have approached this court without delay, that they risk to suffer substantial loss if stay is not granted, that they shall offer security for the due performance of the decree in the event that they loss the appeal, that their appeal is arguable and that the balance of convenience tilts in their favour. Delay 17.The impugned decision was delivered on 19th June 2026 while the appellants approached this court on 25th June 2026. Their application was filed without delay. Substantial loss 18.The 1st appellant has deposed that she risks being arrested pursuant to warrants in execution of the judgment in the event a stay order is not issued. She further maintains that she has made substantial settlement of the judgment sum and that one of the appellants’ grounds of appeal is the issue of reconciliation of their account. It is trite that execution is a lawful process and the fact that a decree-holder is executing a judgment or has already executed a judgment does not amount to what is termed as substantial loss to the judgment debtor. 19.Gikonyo J in James Wangalwa & another v Agnes Naliaka Cheseto Misc Application No 42 of 2011 [2012] eKLR. 20.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. 21.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.” 22.The appellants herein have not led any evidence to establish that they stand to suffer substantial loss if orders of stay of execution are not granted save that the 1st appellant risks being committed to civil jail. Security 23.The appellant have maintained that they can only offer security of Ksh 20,000/= while the respondent has urged this court to order for the deposit of the entire judgment sum. I am persuaded by the respondent’s position given that this court has to balance the interests of all parties; to ensure that the appeal is not rendered nugatory while safeguarding the interest of the decree- holder who is entitled to enjoy the fruits of a judgment entered in it’s favour. 24.At this juncture I will refrain from making any reference to the merits or otherwise of the appeal. 25.On the balance I am inclined to allow the application herein and I thus make the following orders;i.An order of stay of execution is hereby granted in respect of the judgment delivered on 8th may 2026 in Milimani SCCCOM/E108565/2025; Tif Engineering Services Vs Radmarc Mining Complimentative Company Limited, until the appeal herein is heard and determined on the following conditions;a.The appellant to deposit, within 45 days from the date hereof, the entire decretal sum of Ksh 221,000 in a joint interest earning account in the names of the parties' advocates with a reputable bank.b.In the event of default in compliance with order 1(a) hereinabove, the stay order shall automatically lapse and the respondent shall be at liberty to execute.ii.The costs of this application shall abide the outcome of the appeal.It is herby so ordered DELIVERED, DATED AND SIGNED AT MILIMANI THIS 22ND DAY OF JULY 2026.M. S. SHARIFFJUDGE