Mololine Services & another v Cherop & another (Civil Appeal E001 of 2025) [2025] KEHC 13346 (KLR) (18 September 2025) (Ruling) Neutral citation: [2025] KEHC 13346 (KLR) REPUBLIC OF KENYA IN THE HIGH COURT AT KABARNET CIVIL APPEAL E001 OF 2025 RB NGETICH, J SEPTEMBER 18, 2025 BETWEEN MOLOLINE SERVICES ..................................................................... 1ST APPELLANT DENIS KABUGI ONYWOKI ........................................................... 2ND APPELLANT AND WINNIE CHEROP ........................................................................ 1ST RESPONDENT RICHARD ROTICH .................................................................... 2ND RESPONDENT RULING 1. The appellants, by Notice of Motion dated 17th January 2025, brought under Order 42 Rule 6 of the Civil Procedure Rules and Sections 1A, 1B, 3A, and 63(e) of the Civil Procedure Act, seek orders of stay of execution of the judgment and decree delivered on 10th January 2025 in Kabarnet CMCC No. E022 of 2022, together with stay of proceedings in the related matters, pending the hearing and determination of this appeal. 2. The application is supported by the affidavit of Isaac Kipkorir Kipyego, counsel for the appellants, and is premised on the grounds that: the judgment was delivered on 10th January 2025 in favour of the respondents; the decretal sum is substantial; unless stay is granted the appellants will suffer substantial loss; the appeal is arguable; and that CMCC No. E022 of 2022 was the test suit for several related cases arising from the same accident. 3. The application is opposed through the replying affidavit of counsel for the respondents dated 22nd January 2025. The respondents contend that the application is misconceived, that the appellants have not demonstrated substantial loss, and that the decretal sum is not so large as to render the appeal nugatory. On the prayer for stay of proceedings, they maintain that each of the other cases is distinct and ought to proceed to conclusion. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/13346/eng@2025-09-18 1
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Analysis and Determination 4. 5. Having considered the application, the affidavits on record, and rival submissions, the issues for determination are: i. Whether the appellants have satisfied the conditions for grant of stay of execution pending appeal. ii. Whether stay of proceedings in the related matters is merited. The principles governing stay of execution pending appeal are provided under Order 42 Rule 6 of the Civil Procedure Rules as follows: a. That substantial loss may result unless stay is granted; b. That the application has been made without unreasonable delay; and c. That such security as the court may order has been given. 6. The Court of Appeal in Butt v Rent Restriction Tribunal [1982] KLR 417 held that the power of the court to grant or refuse a stay is discretionary and should be exercised so as not to render an appeal nugatory while ensuring no party is prejudiced. 7. In the instant case, judgment appealed from was delivered on 10th January 2025, and this application was filed on 17th January 2025. There is therefore no delay. 8. The decretal sum is substantial. The appellants contend that if execution proceeds, they stand to suffer irreparable loss, whereas the respondents have not shown capacity to refund the decretal sum should the appeal succeed. In such circumstances, the court is satisfied that substantial loss has been demonstrated. 9. The appellants have expressed readiness to deposit the decretal sum in a joint interest earning account as security. This satisfies the requirement under Order 42 Rule 6(2)(b). 10. I am therefore satisfied that the appellants have met the threshold for grant of stay of execution pending appeal. 11. In respect to prayer for stay of proceedings in related matters being Kabarnet CMCC Nos. E001, E002, E003, E004, E020, E025, E027, E028, E029 of 2022 and E021 of 2021, it is not disputed that Kabarnet CMCC No. E022 of 2022 was selected as the test suit for the claims arising from the same accident involving the same defendants. Liability was determined therein at 100% against the appellants. The outcome of this appeal will therefore directly affect the other suits on the issue of liability. 12. To allow the other suits to proceed while this appeal is pending would expose the parties and the court to inconsistent findings, multiplicity of proceedings, and wasted judicial resources. 13. Guided by the overriding objective under Sections 1A and 1B of the Civil Procedure Act, I am persuaded that stay of proceedings in the related matters is necessary to ensure just, expeditious, proportionate, and affordable resolution of disputes. From the foregoing, the application dated 17th January 2025 succeeds. 14. Final Orders: a. Stay of execution of the judgment and decree in Kabarnet CMCC No. E022 of 2022 is hereby granted pending hearing and determination of this appeal, on condition that the entire decretal https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/13346/eng@2025-09-18 2
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sum be deposited in an interest earning account in the joint names of counsel for the parties within 30 days of this ruling. b. There shall be stay of proceedings in Kabarnet CMCC Nos. E001, E002, E003, E004, E020, E025, E027, E028, E029 of 2022 and E021 of 2021, being matters arising from the same accident and dependent on the liability determination in CMCC No. E022 of 2022, pending determination of this appeal. c. The appellants shall file and serve the record of appeal within thirty (30) days from the date hereof. d. Costs of this application shall abide the outcome of the appeal. RULING DELIVERED, DATED AND SIGNED VIRTUALLY AT ELDAMA RAVINE HIGH COURT (SUB-REGISTRY) THIS 18TH DAY OF SEPTEMBER, 2025. RACHEL NGETICH JUDGE In the presence of: Ms. Akinyi for Respondent. No appearance for Appellant. CA, Elvis. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/13346/eng@2025-09-18 3
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