Likimani v Vinci Infrastructure Kenya Ltd

by themselves, employees and/or agents or otherwise howsoever from proceeding with the execution of the judgement entered on 28th November 2025 in MCCC E251 OF 2023 Vinci Infrastructure Vs Dr. Sopiato Likimani d) Any further orders that the court may deem just to grant e) THAT the costs of the application be provided for. 2. The application was premised on grounds that the applicant had lodged an appeal against the judgement raising arguable issues and unless orders of stay are granted, the respondent might execute the decree rendering the appeal nugatory 3. Th 1st respondent in opposing the application swore a replying affidavit by one Pruvost Thomas. He deponed that he vacated the premises upon expiry of the lease leaving it in the same state he had found it and the appellant was required at per the agreement for refund the deposit of USD 6,870 which the he failed to indicating the monies had been used for repairs and renovations occasioned by the respondent. 4. He further deponed that this breach prompted the filing MCCC E251 OF 2023 Vinci Infrastructure Vs Dr. Sopiato Likimani where the tribunal ruled in his favour and the application before the court seeks to delay the implementation of the judgement as he has failed to demonstrate an arguable appeal 5. It was further deponed that the appellant had not demonstrated what substantial loss will be occasioned to them which is the cornerstone for grant of stay of execution orders as per order 42 ELCLA E277 OF 2025 R 2

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rule 6(2) of the civil procedure and further he had not offered any security for due performance of decree. He deponed that no prejudice will be occasioned to the applicant if the orders of stay are not granted. 6. The application was canvassed by way of written submissions with the applicant filing submissions dated 23rd March 2026 whereas the 1st respondent filed submissions dated 15th June 2026. Applicant/Appellant’s submissions 7. Counsel submitted that the appeal was arguable as in his memorandum of appeal being that the trial court had failed to consider the evidence before it. He argued that an arguable appeal is not one that must necessarily succeed but one that raises a single issue worth considering relying in the case of Stanely Kangethe Kinnyanjui Vs Tony Ketter & 5 others 8. Counsel further submitted that the applicant had met all the conditions necessary for the grant of stay of execution. That substantial loss was demonstrated by the fact that the respondent had not produced any evidence that he will be able to refund the decretal amount if the appeal succeeds hence substantial loss. That the appeal had been made without undue delay Lastly on the limb for security for due performance of decree the applicant submitted that he was willing to deposit USD 1,9993.50 as the balance of the deposit Respondents ‘submissions ELCLA E277 OF 2025 R 3

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9. Counsel submitted on the provisions of order 42 rule 6(2) of the civil procedure rules and further relied in the case of Khaki & 28 Others Vs Juma & 5 Others (Environment & Land Case 35 of 2019 & Environment and Land Miscellaneous Application E063 of 2020 (Consolidated)) [2025] KEELC 333 (KLR).He indicated that the applicant was to demonstrate substantial loss which they had not .That the judgment sought to be stayed related to a monetary obligation arising from the Applicant’s failure to refund the Respondent’s security deposit and the Applicant has not demonstrated how that payment of the decretal sum of USD 6,870 would render the intended appeal nugatory or that the amount would be incapable of recovery should the appeal succeed. 10. The respondent submitted that trial court, having evaluated the evidence presented, correctly found that the Applicant had failed to establish the nexus between the receipts produced and the alleged defects in the premises hence failure by the Applicant to discharge the burden of proof required. On the issue for security for due performance of a decree, Counsel submitted that the applicant seeking to deposit only USD 1,993.50 demonstrates that the application is aimed at delaying satisfaction of the decree rather than preserving the substratum of the appeal Analysis and determination 11. Having looked at the application, the responses thereto, the submissions and cited authorities, the issue for determination will be whether the application for grant of stay of execution is merited ELCLA E277 OF 2025 R 4

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12. The law governing the grant of orders for a stay of execution pending appeal is codified under Order 42 Rule 6 (1) and 2 of the Civil Procedure Rules. Sub rule 2 reads; ‘No order for a stay of execution shall be made under sub-rule (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.’’ 13. Substantial loss is the cornerstone of an application for stay. In Kenya Shell Limited Vs Benjamin Karuga Kibiru & another [1986] KECA 94 (KLR), the Court of Appeal held that: -“If there is no evidence of substantial loss to the applicant, it would be a rare case when an appeal would be rendered nugatory by some other event. Substantial loss in its various forms, is the corner stone of both jurisdictions for granting a stay. That is what has to be prevented. Therefore, without this evidence it is difficult to see why the respondents should be kept out of their money.” 14. The applicants bear the burden of showing the substantial loss they are likely to suffer if no stay is ordered. This recognises that both parties have rights; the Appellants to their Appeal, including the prospect that it will not be rendered nugatory; and the decree ELCLA E277 OF 2025 R 5

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holder to the decree, including the full benefits under the decree. In balancing the two competing rights, the Court focuses on their reconciliation, which is not a question of discrimination. The Applicant contends that unless stay is granted, the Respondent shall proceed with execution and that the Respondent has not produced any evidence to show that it is capable of refunding the decretal amount if the Appeal succeeds. The Respondent on the other hand contends that no evidence has been placed before Court to prove inability to refund the decretal sum. The law is settled that substantial loss is the cornerstone upon which an application for stay pending appeal rests. In the present matter, the Applicant has expressly deponed that the Respondent may not be capable of refunding the decretal sum if the Appeal succeeds. The Respondent has not placed before this Court any documentary evidence demonstrating financial ability to refund the decretal amount. I am cognizant of the principle that execution before determination of an Appeal may render the Appeal nugatory especially where recovery may become difficult. 15. Consequently, I am satisfied that the Applicant has sufficiently demonstrated the likelihood of substantial loss 16. On the issue of unreasonable delay, in this instance case, the judgment was delivered on 28th November 2026 while the present Application was filed on 19th December 2025. In the circumstances, I find that the Application was filed timeously and without unreasonable delay ELCLA E277 OF 2025 R 6

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17. On security, Order 42 Rule 6(2)(b) of the Civil Procedure Rules is couched in mandatory terms. In Focin Motorcycle Co. Limited Vs Ann Wambui Wangui & another [2018] KEHC 8358 (KLR), the court held that: -“In Arun C Sharma -V- Ashana Raikundalia T/A Rairundalia & Co. Advocates Justice Gikonyo the Court stated that:“The purpose of the security needed under Order 42 is to guarantee the due performance of such decree or order as may ultimately be binding on the applicant. It is not to punish the judgment debtor……….Civil process is quite different because in civil process the judgment is like a debt hence the applicants become and are judgment debtors in relation to the respondent. That is why any security given under Order 42 rule 6 of the Civil Procedure Rules acts as security for due performance of such decree or order as may ultimately be binding on the applicants. I presume the security must be one which can serve that purpose’’ 18. The Applicant has expressed willingness to deposit USD 1993.50 as security for due performance of decree. The Respondent has strongly opposed this and questions why the applicant cannot deposit the full decretal amount. 19. Courts have been cautioned against imposing punitive conditions. The Supreme Court in Westmont Holdings SDN BHD Vs Central Bank of Kenya & 2 others [2023] KESC 11 (KLR) held that: -“A court could impose a condition precedent when imposing an order for security for costs in special and exceptional circumstances, such as extraordinary and important cases, for ELCLA E277 OF 2025 R 7

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instance, election petitions. The same was, however, to be done in a manner that was reasonable and not to punish or subdue a genuine claim. In that regard, imposing a condition precedent was not in itself unconstitutional, provided it was not unreasonable to the extent that it impeded a party’s access to justice.” 20. However, requiring security for a money decree is neither punitive nor unreasonable but a safeguard to balance the interests of both parties. 21. Having considered all the circumstances, this court finds that the Applicant/Appellant has satisfactorily demonstrated substantial loss and in balancing the right of appeal with the 1 st Respondents’ right to enjoy fruits of their judgment, it is in the interest of justice that the discretion is exercised conditionally Final disposition Accordingly, I make the following orders; i. There shall be a stay of execution of the judgment dated 28th November 2025 and all consequential orders pending hearing and determination of the appeal. ii. The Applicant shall deposit the entire decretal sum of UDS 6,870.00 in a joint interest-earning account in the names of the ELCLA E277 OF 2025 R 8

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advocates for the parties within thirty (30) days from the date of this ruling. iii. In default of compliance with order (iii) above, the stay granted herein shall automatically lapse. iv. Costs of the Application shall abide the outcome of the Appeal v. Costs to be awarded to the judgement debtor It is so ordered. DATED, SIGNED and DELIVERED via e-mail at NAIROBI on this 16th day of July 2026. MOHAMMED N. KULLOW JUDGE ELCLA E277 OF 2025 R 9

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