Agnes Kwamboka Nyabando v David Kinanga Onsongo

3. The background to this Application stems from a suit filed by the Appellant in the trial court on 28th January 2017 against Elvis Muthoka Itaa and the Respondent, seeking compensation and costs. The trial court dismissed the suit against the Respondent on 24th May 2023. Dissatisfied, the Appellant filed an appeal before this Court, which on 4th July 2024 delivered judgment in her favour, awarding her general damages of Kshs. 500,000, special damages of Kshs. 64,600, plus costs of the appeal and the trial, with interest until full payment. Analysis and Determination 4. I have carefully considered the instant application, the response thereto and the parties’ respective submissions. I find that the main issue for determination is whether the Applicant has made out a case for the granting of orders for stay of execution pending appeal. 5. The principles guiding the grant of stay of execution pending appeal are well settled under Order 42 Rule 6(2) of the Civil Procedure Rules which stipulates as follows: 2. 6. 7. 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. This application seeks a stay of this Court’s own judgment so that the Applicant can appeal before the Court of Appeal. The conditions for granting stay are well established. In Gatirau Peter Munya vs. Dickson Mwenda Kithinji & 2 others Application No. 5 of 2014 [2014] eKLR the Supreme Court held that an applicant seeking stay of execution pending appeal must satisfy court on the following parameters: a. the appeal or intended appeal is arguable and not frivolous; and that b. unless the order of stay sought is granted, the appeal or intended appeal, were it to eventually succeed, would be rendered nugatory. (see also the Court of Appeal Case of Butt v Rent Restriction Tribunal [1982] KLR 417) Similarly, in Multimedia University & Another vs. Professor Gitile N. Naituli [2014] eKLR, the Court of Appeal restated the principles as follows: “ When one prays for orders of stay of execution, as we have found that those are what the applicants are actually praying for, the principles on which this Court acts, in exercise of its discretion in such a matter, is first to decide whether the applicant has presented an arguable appeal and second, whether the intended appeal would be rendered nugatory if the interim orders sought were denied. 8. An applicant for stay pending appeal must demonstrate: (i) that substantial loss may result to them unless the order is made; (ii) that the application has been brought without unreasonable delay; and (iii) that they have furnished security for the due performance of the decree. The burden lies with the applicant to satisfy the Court that the conditions have been met. 9. In the present case, the Applicant contends that he stands to suffer substantial loss if execution proceeds, citing the magnitude of the judgment sum and his inability to recover the same should the intended appeal succeed. However, the Applicant has not annexed any documentary proof of financial https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/11138/eng@2025-07-24 2

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incapacity or other compelling evidence to demonstrate the likelihood of suffering substantial loss. Mere allegations without evidence are insufficient. 10. On the issue of delay, I note that the judgment sought to be stayed was delivered on 4th July 2024, and the present Application was filed on 6th August 2024, approximately one month later. While this may not be an inordinate delay, it is noteworthy that the Applicant has not provided evidence that he has taken any active steps to secure leave to appeal out of time or to file a draft memorandum of appeal. This lack of demonstrable effort casts doubt on the bona fides of the Application. 11. Furthermore, the Applicant has not offered any security for the due performance of the decree, a mandatory requirement under Order 42 Rule 6(2)(b). This omission further weakens the Application and raises concerns about the Applicant’s commitment to comply with the terms of the stay should it be granted. 12. The Court also notes the constitutional imperative under Article 159(2)(b) and (d) that justice shall not be delayed and shall be administered without undue regard to procedural technicalities. However, this principle must be balanced with the right of a successful litigant to enjoy the fruits of their judgment. In this case, the Respondent/Applicant has failed to present compelling grounds that outweigh the Appellant’s right to execute the judgment. 13. Taking all the circumstances of the case into account, including the interests of justice, this Court finds that the Respondent/Applicant has failed to meet the threshold set for the granting of an order for stay of execution pending appeal. Disposition 14. In light of the foregoing, the Notice of Motion dated 6th August 2024 fails and is hereby dismissed with costs to the Appellant/Respondent. 15. Orders accordingly. RULING DATED, SIGNED AND DELIVERED AT NYAMIRA VIRTUALLY VIA MICROSOFT TEAMS THIS 24TH DAY OF JULY 2025. W. A. OKWANY JUDGE https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/11138/eng@2025-07-24 3

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