Afyare Enterprises Company Ltd v Nyaribo t/a I.N. Nyaribo & Co. Advocates (Civil Appeal 501 of 2019) [2025] KECA 1819 (KLR)
The bottom line
#Kenya's Court of Appeal ruled that judges cannot grant a stay of execution unless the strict legal conditions are met, no matter how 'just' it feels.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the learned Judge of the High Court exercised his discretion appropriately in granting a stay of execution under Order 42 rule 6 of the Civil Procedure Rules where the application had not satisfied the mandatory conditions of that rule
Key legal issues
#Whether the High Court Judge properly exercised his discretion in granting stay of execution despite finding that the mandatory conditions under Order 42 rule 6(2) were not satisfied
The Judge erred. Having found no substantial loss demonstrated and no security offered, he had no basis to grant the stay on general interest-of-justice grounds; the decision was contradictory and irreconcilable and the Court of Appeal interfered.
Order 42 rule 6(2) prescribes mandatory conditions: substantial loss, application without unreasonable delay, and security. The Judge expressly found that no substantial loss had been demonstrated, that the appellant was likely to refund any amount paid, and that no security had been offered in the supporting affidavit. Having made those findings, he nonetheless granted the stay on 'unique circumstances'. The Court held that the interest of justice cannot justify departing from mandatory statutory conditions, and that the ruling was self-contradictory, warranting appellate interference.
The circumstances in which the Court of Appeal may interfere with the exercise of discretion by a lower court
Interference is warranted only where the judge misapprehended the facts, misdirected himself on law, took into account irrelevant matters, failed to take relevant considerations into account, or where the decision was plainly wrong; here the decision was plainly wrong.
Restating the principle in Mbogo & Another v Shah, the Court reaffirmed that discretionary decisions are not overturned simply because the appellate court would have decided differently. Interference requires demonstrated misdirection on fact or law, consideration of irrelevant matters, omission of relevant considerations, or a plainly wrong decision. The Court found that the Judge, by ignoring his own findings on the mandatory conditions, misdirected himself on the law and arrived at a plainly wrong outcome, justifying intervention.
Legal principles established
#- The conditions in Order 42 rule 6(2) of the Civil Procedure Rules for stay of execution are mandatory; a court cannot grant a stay where the applicant has failed to demonstrate substantial loss or offer security merely because it considers it in the interest of justice to do so.
- An appellate court may interfere with the exercise of judicial discretion by a lower court only where the judge misapprehended the facts, misdirected himself on law, took into account irrelevant matters, failed to take into account relevant considerations, or where the decision was plainly wrong.
- Discretionary power is derived from the law and must be exercised judiciously, upon legal principles and according to the circumstances of each case, to do substantial justice to the parties.
Court orders
#- 1.Appeal allowed
- 2.The impugned ruling of the High Court dated 7th December, 2018 set aside
- 3.Substituted therefor an order dismissing with costs the motion for stay of execution dated 24th April, 2018
- 4.The respondent shall bear the costs of this appeal
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya
- Nairobi High Court Miscellaneous Application No. 112 of 2017; Ishmael Nyaribo T/A I. N. Nyaribo Advocates v Afyare Enterprises Limited (ruling dated 7th December, 2018)
- Jurisdiction invoked
- First appeal to the Court of Appeal against an interlocutory decision of the High Court (no specific constitutional or statutory provision invoked in the judgment)
Relief refused
#The respondent's application for stay of execution pending the hearing and determination of his intended reference
The mandatory conditions of Order 42 rule 6(2) were not met; the applicant failed to demonstrate substantial loss and offered no security, and the Judge could not circumvent the mandatory provisions in the interest of justice
Costs
The respondent shall bear the costs on this appeal.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
In consequence, we allow the appeal and set aside the impugned ruling, substituting therefor an order dismissing with costs the motion for stay of execution dated 24th April, 2018.
The provisions of Order 42 rule 6 being in mandatory terms, it was not open to the learned Judge to circumvent them and allow the application.
He impermissibly disregarded principle to grant a stay that was unwarranted.
While we agree that ordinarily it would be in the interest of justice to allow an application for stay of execution, on a case by case basis, the same has to be done within the parameters of the applicable law.
we can only interfere with the judicial discretion of the learned Judge if satisfied that he misapprehended the facts; or misdirected himself on law; or that he took into account matters of which he should not have; or failed to take into account considerations which he should have; or that his decision was plainly wrong.
Issues in the judgment
#The High Court ruling is internally contradictory: having found the stay conditions unmet, the Judge nonetheless granted the stay. This contradiction was noted by the Court of Appeal itself, not an inconsistency within the appellate judgment.
The judgment does not state its own appeal number or neutral citation, and the coram is listed by the Deputy Registrar's certified copy without case number details.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Afyare Enterprises Company Ltd v Nyaribo t/a I.N. Nyaribo & Co. Advocates (Civil Appeal 501 of 2019) [2025] KECA 1819 (KLR)", Case Analysis (2025). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/1819/eng@2025-11-07
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.