Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
High CourtPartially Allowed

Esther Njeri Waruhiu & another (suing as Judgment Debtors/Applicants) v Decree Holder/Respondent (Radmarc Mining Complimentative Company Limited matter)

High Court of Kenya
22 July 2026
1,667 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~7 min to read original · ~4 min brief

The bottom line

#

The High Court paused execution of a Ksh 221,000 judgment, but only because the debtors agreed to deposit the full amount in a joint bank account within 45 days.

What this practically means

#

Executive summary

#
The appellants, judgment debtors in Milimani Small Claims Court Case SCCCOM/E108565/2025 (Tif Engineering Services v Radmarc Mining Complimentative Company Limited), moved the High Court by Notice of Motion dated 24th June 2026 seeking stay of execution of a decree of about Ksh 221,000 pending appeal. The respondent, through director Aden Tobias, opposed the application, arguing failure to offer security under Order 42 Rule 6, inordinate delay given warrants issued earlier, the appellants' reneged instalment proposal without reconciled accounts, and relocation of the 1st appellant's business to evade execution. Counsel for the appellants offered security of only Ksh 20,000, citing the 1st appellant's straitened circumstances; counsel for the respondent demanded deposit of the entire judgment sum in a joint interest-earning account. The court framed a sole issue: whether the appellants made out a case for stay. Applying Order 42 Rule 6, it found the application filed without delay (decision 19th June 2026, application 25th June 2026). On substantial loss, applying James Wangalwa v Agnes Naliaka Cheseto, Silverstein v Chesoni and Mukuma v Abuoga, it held that execution alone is not substantial loss and the appellants led no evidence beyond the risk of committal to civil jail. On security, the court adopted the respondent's position, ordering deposit of the entire decretal sum within 45 days in a joint interest-earning account of the parties' advocates, with the stay lapsing automatically on default. Costs of the application were ordered to abide the outcome of the appeal. The application was accordingly allowed on conditions.

Key legal issues

#
01

Whether the stay application was filed without unreasonable delay

Holding

The application was filed without delay, having been lodged on 25th June 2026 following the decision of 19th June 2026.

Reasoning

The court compared the date of the impugned decision (19th June 2026) with the date the appellants approached the court (25th June 2026) and found the interval short, satisfying the no-unreasonable-delay limb of Order 42 Rule 6(2)(a).

p. 3
02

Whether the appellants demonstrated substantial loss

Holding

The appellants failed to establish substantial loss; risk of arrest and committal to civil jail alone does not suffice.

Reasoning

Relying on Gikonyo J in James Wangalwa v Agnes Naliaka Cheseto, the court held that execution being set in motion, or even completed, is a lawful process and not substantial loss. The applicant must show the execution will irreparably affect the essential core of their case. The appellants led no such evidence beyond the risk of committal to civil jail.

p. 4
03

What security for the due performance of the decree should be given

Holding

The entire decretal sum of Ksh 221,000 must be deposited in a joint interest-earning account within 45 days, failing which the stay lapses automatically.

Reasoning

Weighing the appellants' offer of Ksh 20,000 against the respondent's demand for the full sum, the court adopted the respondent's position to balance the interests of all parties, ensure the appeal is not rendered nugatory, and safeguard the decree-holder's entitlement to the fruits of the judgment.

p. 4

Legal principles established

#
  • Execution is a lawful process; the fact that execution has been levied or completed does not in itself amount to substantial loss under Order 42 Rule 6.
  • Substantial loss is the cornerstone of stay applications and must be established by evidence beyond mere risk of arrest or committal to civil jail.

Court orders

#
  1. 1.Stay of execution granted of the judgment delivered on 8th May 2026 in Milimani SCCCOM/E108565/2025 until the appeal is heard and determined
  2. 2.Appellants to deposit, within 45 days, 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
  3. 3.In default of compliance with the deposit condition, the stay shall automatically lapse and the respondent shall be at liberty to execute
  4. 4.Costs of the application to abide the outcome of the appeal
On appeal from
Milimani Small Claims Court
SCCCOM/E108565/2025 (Tif Engineering Services v Radmarc Mining Complimentative Company Limited)
Jurisdiction invoked
Order 42 Rule 6 of the Civil Procedure Rules - appellate court's power to grant stay of execution pending appeal

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Esther Njeri Waruhiu & another (suing as Judgment Debtors/Applicants) v Decree Holder/Respondent (Radmarc Mining Complimentative Company Limited matter)", Case Analysis (2026). . Source: 

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.