https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10976

 **REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT KAKAMEGA** **CIVIL APPEAL NO. E047 OF 2026** **WEST KENYA SUGAR COMPANY LIMITED ………………..…… APPELLANT/APPLICANT** **VERSUS** **PRISCA ANDEKA MUYONGA ……….....…………….………….…….……. RESPONDENT** **RULING** 1. This is a ruling on an application dated 9th April 2026. The application is for stay of execution of the decree emanating from the Judgement in Butali CMCC No. E043 of 2024 pending the hearing and determination of the appeal. 2. The application is premised on the grounds on the face of it and the affidavit sworn on the same date by Eunice Owuor who depones that she is the Legal Officer of the Appellant/Applicant company. 3. The brief facts as deposed by the Applicant is that liability was highly contested in the impugned judgment and that it was aggrieved by the trial court’s apportionment of liability. Further, the deponent avers that the total decretal sum of Ksh. 3,646,809 is a substantial amount that would cause significant financial strain if paid out and the appeal subsequently succeeds. According to the Applicant, the 30 days stay automatically granted by the trial court was set to lapse on the day the present application was filed wherefore the Respondent would be at liberty to execute which would occasion it substantial loss. 4. The Applicant’s Legal Officer averred that it is willing to provide such security for the due performance of the decree as the court may deem fit to impose. Specifically, it offered to deposit half the decretal sum as security in a joint interest earning account, in the names of both parties’ advocates pending determination of the appeal. 5. The Respondent opposes the application, terming the application incompetent, frivolous, and an abuse of the court process as the Applicant has failed to satisfy the mandatory conditions for grant of an order of stay of execution pending appeal as stipulated under Order 42 Rule 6(2) of the Civil Procedure Rules (2010). She also contends that she is entitled to the fruits of her litigation and that the application is made in bad faith with the mere intention of delaying and frustrating the lawful process of execution. 6. At the instance of the parties’ Advocates, the court issued directions that the application be canvassed through written submissions. However, only the Applicant filed its written submissions. 7. The principles governing applications for stay of execution are laid down in Order 42 Rule 6 (2) of the Civil Procedure Rules (2010) which provides as follows:- ***“(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. The issues for determination regarding the application are:- 2. *Whether the application was made without unreasonable delay.* 3. *Whether the Applicant will suffer substantial loss unless stay is granted.* 4. *Whether the Applicant has offered sufficient security for due performance of the decree.* 5. *Whether the Applicant’s appeal raises triable issues.* 6. The application was filed on the day the 30 days stay of execution was lapsing. It was therefore filed timeously. 7. As was emphasized in the case of **James Wangalwa & Another v. Agnes Naliaka Cheseto [2012] KEHC 1094 (KLR)**, an applicant must establish factors that will show that execution will create a state of affairs that would irreparably affect its case or render his appeal nugatory. 8. The Applicant’s averment that if execution were to proceed its cashflow would be negatively impacted and that attachment of its business assets would jeopardize the livelihoods of hundreds of employees was uncontroverted. See **Tropical Commodities Suppliers Ltd & Others v. International Credit Bank Ltd (In Liquidation) [2024] EA 331**. 9. The Respondent also did not controvert the Applicant’s averments that she is a person of unknown financial means with no guarantee that she would be able to refund the decretal amount should the appeal succeed. 10. I am satisfied that the Applicant has demonstrated that it stands to suffer substantial loss should execution proceed. 11. Regarding security, this is a money decree, and the Applicant has offered security as required. This is an indication of good faith on the part of the Applicant. In **Charles Ogoti Augisi v. Paul Ooko & Another [2024] KEHC 5823 (KLR)**, Sergon J. found that an applicant who had offered to deposit security had satisfied the conditions of stay and ordered him to deposit half the decretal sum as security. 12. I have perused the memorandum of appeal and established that the appeal against liability and quantum raises triable issues. 13. Having carefully considered the application dated 9th April 2026, I find the same to be meritorious. I allow the same and make the following orders:- 14. **There shall be stay of execution pending hearing and determination of this appeal subject to the Applicant depositing half the decretal sum in a joint interest-earning account in the names of the Advocates of both parties within 30 days and in default, the Respondent shall be at liberty to execute.** 15. **The Respondent shall have the costs of this application.** Dated, signed, and delivered at Kakamega, this 20th day of July 2026. **A. C. BETT** **JUDGE** **In the presence of:** Ms. Makau for the Appellant/Applicant Mr. Mbetera for the Respondent Court Assistant: Polycap