Gibson & another (Both t/a Nemka Commercial Agencies) v National Social Security Fund (NSSF) & 13 others (Environment and Land Case Civil Suit 543 of 2013) [2026] KEELC 1210 (KLR)
The bottom line
#The Environment and Land Court refused to pause execution of a Kshs. 16.4 million judgment because the applicants offered no proof of loss, filed late, and gave no security.
What this practically means
#Executive summary
#Key legal issues
#Whether the Applicants demonstrated substantial loss under Order 42 Rule 6(2)(a)
No. The decree is monetary, execution was lawful, and the Applicants adduced no evidence (audited accounts, affidavit of means) that the Interested Parties could not refund the decretal sum if the appeal succeeded.
The court held that the Applicants had to prove, not merely assert, substantial loss. Since the decree was essentially monetary and the execution process was not shown to be irregular, the fear of attachment or sale did not amount to substantial loss. No material demonstrated the Interested Parties' lack of financial capacity to make restitution, and mere apprehension of execution cannot satisfy Order 42 Rule 6(2).
Whether the application was made without unreasonable delay
The application, filed about one year and four months after the judgment of 1st March 2023, was delayed; an informal understanding between counsel could not excuse the delay.
Judgment was delivered on 1st March 2023 and the application was filed on 29th July 2024. The explanation of an understanding between counsel was rejected because no formal stay was sought when judgment was delivered or within a reasonable period thereafter. The court found the explanation did not satisfactorily account for the entire period of delay and that a delay of this magnitude without cogent and documented justification is inordinate.
Whether security for the due performance of the decree had been given
No. The Applicants did not express willingness to furnish security, yet Order 42 Rule 6(2)(b) is in mandatory terms.
The court noted that Order 42 Rule 6(2)(b) is mandatory, requiring security for the due performance of the decree. Relying on Arun C Sharma v Ashana Raikundalia, security is a guarantee for due performance, not a punishment. The Applicants having expressed no willingness to provide security, the final condition for a stay was not met.
Legal principles established
#- Execution is a lawful process and the apprehension that assets may be attached or sold in execution does not, by itself, constitute substantial loss under Order 42 Rule 6(2).
- An applicant for stay must prove substantial loss rather than merely assert it, and bare assertions unsupported by evidence are insufficient.
- An informal understanding between counsel cannot substitute for compliance with the requirements of Order 42 Rule 6, and no formal stay having been sought, the delay is inordinate.
Court orders
#- 1.The application dated 12th July 2024 is dismissed with costs
- Jurisdiction invoked
- Order 42 Rule 6 of the Civil Procedure Rules (court appealed from may order stay of execution of its decree)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Gibson & another (Both t/a Nemka Commercial Agencies) v National Social Security Fund (NSSF) & 13 others (Environment and Land Case Civil Suit 543 of 2013) [2026] KEELC 1210 (KLR)", Case Analysis (2026). Not stated in the judgment (application dated 12th July 2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1210/eng@2026-02-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.