https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11421

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT BUNGOMA** **CIVIL APPEAL NO. E032 OF 2025** **WEST KENYA SUGAR COMPANY ...............APPELLANT/APPLICANT** **VERSUS** **JANET NAFUNA JUMA (Suing as the administrator and personal representative of** **the estate of GODWIN WANJALA** **JUMA (Deceased))……………………………………….1ST RESPONDENT** **DAVID SIMIYU NJIULE (Suing as the administrator and personal representative of** **the estate of GODWIN WANJALA** **JUMA (Deceased)) ...........................................................2ND RESPONDENT** **RAHAB NJOKI NDUNGU .............................................3RD** **RESPONDENT** **RULING** 1. By way of a Notice of Motion dated 26th March 2026 brought under **Sections 1A, 1B and 3A of the Civil Procedure Act and Order 42 Rule 6 and Order 51 Rule 1 of the Civil Procedure Rules, 2010**, the Appellant/Applicant, West Kenya Sugar Company seeks the following orders: 2. **Spent.** 3. **Spent** 4. **That there be a stay of execution of the judgment and/or decree of this Honourable Court delivered on 3rd March 2026, pending the hearing and determination of the Appellant's preferred appeal at the Court of Appeal.** 5. **That the costs of this Application be provided for.** 6. The Application is premised on the grounds of the face of it and the Supporting Affidavit of Eunice Owuor, the Legal Officer of the Applicant, sworn on 17th March 2026. The deponent states that the Applicant has filed the present appeal against the judgment of the subordinate court delivered on 31st January 2025, in which the 1st and 2nd Respondents were awarded damages amounting to Kshs. 1,098,900/=. 7. Furthermore, as a condition for obtaining a stay pending the appeal, the Applicant was instructed to deposit the entire decretal sum into a joint interest-earning account maintained in the names of the advocates for the parties. The Applicant has duly complied with this order, and the funds remain held to date. 8. The deponent further avers that this appeal was heard and judgment was delivered on 3rd March 2026. In the judgment, the sum awarded for loss of dependency was reduced from Kshs. 2,000,000/= to Kshs. 1,500,000/=, with the remainder of the award in the subordinate court remaining intact. Dissatisfied with the said judgment, the Applicant has since filed a second appeal before the Court of Appeal, submitting a Notice of Appeal dated 13th March 2026. 9. It is deposed that the Applicant is apprehensive that the 1st and 2nd Respondents are likely to move to execute and/or apply for the release of the sum held as security. The Applicant, who has an appeal pending before the Court of Appeal, desires to be heard. The financial capacity of the 1st and 2nd Respondents is unknown, and they are unlikely to refund the decretal amount should the intended appeal succeed. 10. Furthermore, the Applicant is prepared and willing to comply with reasonable conditions, including an order that the sum held in the joint account remain therein pending the hearing and determination of the intended appeal. 11. Upon considering the Application on 27th March 2026, this court (differently constituted) determined that no urgency had been demonstrated. It was ordered that the Application be served upon the Respondents within seven (7) days, with leave granted to the Respondents to file and serve a response within an additional seven (7) days. Moreover, the matter was scheduled for mention on 13th April, 2026, to receive directions regarding the inter partes hearing. **Replying Affidavit** 1. The Application is opposed by a Replying Affidavit sworn by Janet Nafuna Juma, the 1st Respondent, on 9th April 2026, on her own behalf and with the instructions of the 2nd Respondent. She states that she is aware that this Honourable Court, in its judgment of 3rd March 2026, only reduced the amount awarded for loss of dependency from Kshs. 2,000,000/= to Kshs. 1,500,000/= and rejected the other submissions contained in the memorandum of appeal. Additionally, she indicates that the Applicant has since filed a further appeal with the Court of Appeal. 2. She further deposes that the sum awarded in the subordinate court, being Kshs. 1,098,900/= exclusive of costs, remains held in the joint interest-earning account, and the estate of the deceased has waited long enough for this appeal to be determined and that any further holding of the decretal sum will occasion more suffering to the estate. 3. She further contends that she and the 2nd Respondent are persons of means and will be able to refund the decretal sum should the intended appeal succeed, which she contends is unlikely. Also, in the alternative and in the interest of justice, should the court decline to release the full sum to the estate, one-half of the decretal sum, which, together with accrued interest, she computes at approximately Kshs. 955,246/=, together with the costs of the lower court, be released to the estate, with the other half remaining held in the joint account. **Submissions** 1. The court gave directions on the mode of disposal of the Application by way of written submissions, which both parties duly filed. **Applicant's Submissions** 1. Learned counsel for the applicant submitted that the conditions for the grant of an order for stay of execution pending appeal are specified under **Order 42 Rule 6(1) and (2) of the Civil Procedure Rules, 2010**, and that the applicant has satisfied each of these conditions. Counsel further contended that the judgment intended to be stayed was delivered on 3rd March 2026, and that the instant application was filed on 26th March 2026, which is twenty-three (23) days thereafter, demonstrating that the application was filed without unreasonable delay. 2. Regarding the issue of substantial loss, counsel submitted that, in the absence of an order of stay, the sum of Kshs. 1,098,900/= held in the joint interest-earning account would be released to the 1st and 2nd Respondents. Their financial capacity is unknown, and they are unlikely to refund the amount, thereby rendering the intended appeal nugatory. Counsel cited the cases of **James Wangalwa & another v Agnes Naliaka Cheseto [2012] eKLR and Charles Kariuki Njuri v Francis Kimaru Rwara (suing as administrator of the estate of Rwara Kimaru alias Benson Rwara Kimaru, deceased) [2019] eKLR** to elucidate the criteria that constitute substantial loss. 3. On security, Counsel submitted that the entire decretal sum awarded in the subordinate court is already secured in a joint interest-earning account in the names of the advocates for both parties, thereby satisfying the security condition under **Order 42 Rule 6(2)(b)**. Counsel further relied on **Focin Motorcycle Co. Ltd v Ann Wambui Wangui & another [2018] eKLR**, to establish that when an applicant proposes security as deemed appropriate, it is the respondent's responsibility, rather than the applicant's, to demonstrate that the security offered is inadequate. 4. Counsel further submitted, relying on **Cannon Assurance Company Limited v Eric Main Mburu,** that although it is a legal principle that a decree constitutes a legal process and that a successful litigant is prima facie entitled to the fruits of judgment, this principle must yield where, as in this case, the decretal sum is adequately secured and the appellant's right of appeal would otherwise be jeopardized. Counsel urged the court to find that the Applicant has met the threshold under **Order 42 Rule 6** and to approve the Application as requested. **Respondents' Submissions** 1. Learned Counsel for the Respondents submitted that the grant of a stay of execution is discretionary and governed by **Order 42 Rule 6 of the Civil Procedure Rules**. In exercising that discretion, the court's duty is to balance the interests of both parties: safeguarding the Respondents' entitlement to the decretal sum on the one hand, whilst ensuring that the Applicant's appeal, should it succeed, is not rendered nugatory by an irrecoverable payment on the other. 2. Counsel submitted that this is a second appeal, with the judgment of the subordinate court having been substantially upheld by this Honourable Court, except for a reduction in the award for loss of dependency. The decretal sum, now amounting to approximately Kshs. 955,249/= following the adjustment pursuant to the judgment of 3rd March 2026, together with interest, has been secured in the joint account since the conclusion of the earlier appeal. The estate of the deceased has, therefore, waited an extended period to benefit from the judgment's fruits. 3. Without conceding that the intended appeal has no prospects of success, counsel submitted that it would be fair and in the interest of justice for at least half of the decretal sum to be released to the respondents at this stage, with the balance remaining in the joint interest-earning account pending the hearing and determination of the appeal. This approach would safeguard the respondents' interests while ensuring the applicant's right of appeal is protected through the security retained. Counsel respectfully urged the court to grant the application contingent upon this condition. **Determination** 1. Having carefully considered the Notice of Motion, the supporting and replying affidavits, as well as the rival written submissions filed by Counsel for the respective parties. The court finds that the single issue for determination is: 2. **Whether the Applicant has satisfied the threshold for the grant of an order for stay of execution pending the hearing and determination of its intended appeal to the Court of Appeal.** 3. The principles guiding the grant of a stay of execution pending appeal are well established and are codified under **Order 42 Rule 6(2) of the Civil Procedure Rules, 2010,** which provides that; **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. On delay, I am satisfied that the Application, filed twenty-three (23) days after the delivery of the judgment sought to be stayed, was brought promptly and without unreasonable delay. This limb is not seriously contested by the Respondents. 2. Regarding substantial loss, the court in **James Wangalwa & another v Agnes Naliaka Cheseto [2012] eKLR,** while relying on the case of **Mukuma v Abuoga,** held that, **“…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.”** 1. In the present case, the decretal sum is secured in a joint interest-earning account; however, the Respondents have neither, in their replying affidavit nor in their submissions, demonstrated any tangible means by which they could refund the amount should it be released to them and the appeal subsequently succeed. Based on the material before me, I find that the Applicant has, on a balance of probabilities, shown that it would suffer substantial loss and that the appeal would be rendered nugatory if the security currently held were released in its entirety at this stage. 2. On security, I observe that the entire amount awarded in the subordinate court has, since the earlier appeal, been deposited into a joint interest-earning account in the names of the advocates for both parties. This arrangement was executed in accordance with a prior order of this court. I conclude that this arrangement satisfies, at least in part, the security condition outlined under **Order 42 Rule 6(2)(b)**. 3. I have, however, also taken into consideration that this constitutes a second appeal, that the judgment of the subordinate court has now been substantially affirmed, and that the estate of the deceased has consequently endured a significant delay in realizing the benefits of that judgment. A successful litigant should not, except in the most explicit cases, be entirely deprived of those benefits solely on account of filing a further appeal. 4. The purpose of security for costs, as articulated in **Arun C. Sharma v Ashana Raikundalia t/a A. Raikundalia & Co. Advocates & 2 others [2014] eKLR**, is to ensure the proper execution of the decree that may ultimately be binding on the Applicant, rather than to penalize the judgment debtor. 5. In this context, it is my considered view that a fair and equitable compromise would be achieved by an order directing that a portion of the currently held sum be disbursed to the Respondents at this juncture, and the remaining amount to be retained as security until the hearing and determination of the intended appeal. In substance, this course of action has been jointly proposed as an acceptable middle ground by both parties. 6. In light of the foregoing, I find that the Application dated 26th March 2026 has merit, and I hereby grant it under the following terms: 1. **That an order of stay of execution of the judgment and decree of this Honourable Court delivered on 3rd March 2026 is be and is now hereby issued pending the hearing and determination of the Appellant's intended appeal to the Court of Appeal.** 2. **That as a condition of the stay, one half of the decretal sum currently held in the joint interest-earning account in the names of the advocates for the parties, together with the interest accrued thereon, shall be released and paid out to the 1st and 2nd Respondents, as administrators of the estate of the deceased Godwin Wanjala Juma, within thirty (30) days from the date of this ruling.** 3. **That the remaining half of the said decretal sum, together with the interest accrued thereon, shall be retained in the aforementioned joint interest-earning account until the Appeal herein filed is heard and determined.** 4. **That in the event of non-compliance with orders as in (ii) above the stay orders herein issued shall be deemed to have been vacated, and the Respondents shall be at liberty to execute for the full decretal sum without any further reference to this court.** 5. **That the costs of this Application shall be in the appeal.** **Read, Dated and Signed at BUNGOMA on 23rd JULY 2026** **E. OMINDE** **JUDGE**