Nic Bank Limited v James Munene Ndumbi & 1 other

with the trial court's ruling dated 20th December 2024, which required the deposit of KES 3,000,000 in a joint interest-earning account within 45 days. Issues for Determination 4. From the affidavits on record, the following issues arise for determination: 1. Whether the Appellant has satisfied the conditions for grant of stay of execution pending appeal; 2. Whether the Appellant's failure to comply with the trial court’s conditional stay defeats the application; 3. Whether the stay should be maintained on account of subsequent compliance with the court’s directions issued on 11th April 2025. Analysis and Determination 5. 6. Under Order 42 Rule 6(2) of the Civil Procedure Rules, the court is enjoined to consider: (a) Whether substantial loss may result to the applicant unless the order is made; (b) Whether the application has been made without unreasonable delay; a (c) Such security as the court orders for the due performance of the decree. The Applicant contends that execution is imminent, and the appeal will be rendered nugatory if stay is not granted. No assertion is made regarding the Respondent’s ability to refund the decretal sum if the appeal succeeds. This remains a vital consideration, as held in National Industrial Credit Bank Ltd v Aquinas Francis Wasike & Another [2006] eKLR, where the Court of Appeal stated: “ The onus is on the applicant to prove that the respondent would not be in a position to refund the decretal sum if the appeal succeeds.” 7. The Applicant concedes to non-compliance with the trial court order of 20th December 2024, explaining that the omission was not willful but resulted from an inadvertent mistake of its former advocates who failed to inform it of the court’s ruling. This explanation has not been controverted. 8. The delay, while regrettable, was cured by subsequent compliance following this court’s order of 11th April 2025, which temporarily stayed execution and allowed the Applicant to deposit the sum in court within 21 days. The record demonstrates that the deposit was made on 09th May 2025, within the period specified. 9. In Butt v Rent Restriction Tribunal [1982] KLR 417, the Court of Appeal emphasized that: “ The discretion whether or not to grant a stay of execution must be exercised in such a way as not to prevent an appeal. The general principle is that a stay is normally granted so that an appeal may not be rendered nugatory.” 10. Although the Applicant has not demonstrated, with specificity, the substantial loss it stands to suffer if stay is not granted, the subsequent deposit of the security of KES 3,000,000, in court helps safeguard the appeal and the Respondents’ right to the fruits of the judgment. 11. In the circumstances of this case, justice would be better served by preserving the subject matter of the appeal and safeguarding the right of appeal. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/12186/eng@2025-05-29 2

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Disposition 12. Taking into account all the above, I find merit in the application dated 10th April 2025. Accordingly, I make the following orders: 1. A stay of execution of the judgment delivered on 23rd May 2024 and any resultant decree is hereby granted pending the hearing and determination of this appeal; 2. The sum of KES 3,000,000 deposited in court on 09th May 2025 shall be retained as security pending the outcome of the appeal 3. Costs of this application shall be borne by the Appellant 4. Mention before the Deputy Registrar on 01st July 2025 to confirm filing and service of the record of appeal DELIVERED AT NAIROBI THIS 29TH DAY OF MAY 2025 WAMAE.T. W. CHERERE JUDGE Appearances Court Assistant - Ubah For Appellants - Mr. Dachi for Nyaanga & Mugisha Advocates For Respondent - Mr. Njagi for Mugendi Karigi & Co. Advocates https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/12186/eng@2025-05-29 3

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