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iii. That the Learned trial magistrate erred in law and in fact by failing to find that it was in the interest of rendering substantive justice to set aside the judgment delivered by the trial court on 28th May, 2024 to afford all the parties, particularly the Appellant herein, a chance to make their respective cases before the matter can be determined with finality and on merit basis. iv. That the Learned trial magistrate erred in law and in fact by condemning the Appellant unheard. v. That the Learned trial magistrate erred in law and in fact in failing to in failing to take into consideration submissions and authorities submitted by the Appellant. Applicants case: 4. 5. It is the Applicant’s case that, it is trite law under Order 42 Rule 6 of the Civil Procedure Rules that the Applicant herein be granted a stay of execution where he has demonstrated the three conditions provided therein; a. That substantial loss may result to the Applicant unless the order is made b. That the application has been made without unreasonable delay c. That the Applicant is willing to furnish such security as the court orders for the performance of such decree or order as may ultimately be binding on the Applicant Your The Applicant has submitted on each of the above-mentioned conditions as follows:a. That substantial loss may result to the Applicant unless the order is made reliance was placed in James Wangalwa & another v Agnes Naliaka Cheseto Misc. Application No 42 of 2011 [2012] eKLR, where the court stated as follows regarding what amounts to substantial loss; “ ...the issue of substantial loss is the cornerstone of both jurisdictions. Substantial loss is what has to be prevented by preserving the status quo because such loss would render the appeal nugatory” . 6. It is the Applicant’s submission that it will suffer substantial loss of over Kshs. 810,790, which is exclusive of interest, if a stay of execution of the exparte judgment is not granted. The Applicant firmly believes that the 1st Respondent is in the process of commencing execution vide their decree dated 23rd January 2025. 7. The Applicant further submit that if the 1" Respondent commences the execution proceeding, then such action will render the appeal nugatory and a mere academic exercise. That commencement of execution will not only result in monetary loss but also serve as a denial of justice toward the Applicant/ Appellant, who will be condemned unheard, against the much cherished cannons of justice. 8. It was also submitted that the 1" Respondent has failed to demonstrate that she is willing and able to refund the sum if the Appeal succeeds. The Applicant submitted that the court does issue a stay of execution pending the hearing and determination on the merits of the appeal. b. That the application has been made without unreasonable delay. 9. The Applicant submitted that there has been no inordinate delay in bringing the instant application as it was filed on 20th December 2024, while the ruling delivered in the lower court on 26th November 2024 and the exparte judgment on 28th May 2024. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/14310/eng@2025-07-08 2

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c. That the Applicant is willing to furnish such security as the court orders for the due performance of such decree or order as may ultimately be binding on the Applicant. 10. The Applicant submitted that he is willing to deposit half the decretal sum of Kshs.405,395, and the balance of Kshs.405,395 in a joint interest account within fourteen (14) days pending the hearing and determination of this appeal. 11. The Applicant therefore submitted that he has met the legal threshold under Order 42 Rule 6 of the Civil Procedure Rules for a stay of execution pending appeal and seek the court's indulgence on the same. 1st Respondent’s case 12. In opposition to the Applicant’s instant application, the 1st Respondent filed grounds of opposition dated 3rd February 2025 which she sought to wholly rely on in his submissions except to add that no good and convincing reason has been given by the Applicant to warrant the granting of the orders sought as he admitted in his application that he was indeed served with summons to enter appearance. The Appellant acknowledged the said service in his supporting affidavit but upon being served the Applicant never took any step to ensure the memorandum of appearance and defence are filed. 13. Further, the 1st Respondent submits that, the law is very clear on the time frame to enter appearance and file defence and the same cannot be bend to suit individual laxity. The Court cannot come to aid indolence and lack of diligence. That the Applicant filed a similar application in the lower court (Kangundo Law Courts) seeking for orders of setting aside of the ex-parte judgment vide an application dated 11th September 2024 which application was dismissed with costs to the Plaintiff/1st Respondent. This has not been disclosed to the court but the 1st Respondent attached a copy of the lower court ruling dismissing the Application which was annexed to the grounds of opposition filed in court. The Applicant was supposed in law to lodge an Appeal to the lower court ruling and not to file another similar application in the High Court. This application is therefore Res Judicata and improperly before this court and an abuse of the court process. The 1st Respondent submitted that the instant application before this court is dated 20th December 2024. It was submitted that there has been a delay of over seven (7) months hence this is inordinate delay in bringing the application. The delay has not been explained at all and is not only inordinate but also inexcusable. The Applicant has also not demonstrated that he will suffer substantial loss in case the order for stay of executions is not granted. The Applicant has not met the conditions of order 42 Rule 6(2) of the civil procedure rules on conditions for stay of execution. 14. The 1st Respondent submitted that, in the unlikely event this application is allowed, the 1st Respondent seeks to have this court to order to have half of the decretal sum of Kshs.405,395/= released to the Respondent and the balance of Kshs.405.395/= be deposited in a joint interest earning account within (14) fourteen days from the date of ruling of this application. 15. In conclusion, the 1st Respondent submitted that the application before this court lacks merit and prays that it be dismiss with costs. The 1st Respondent relied of the cases of: i. Benjamin Muisyo Kimaile -Vs- Everlyn Ndungwa Muthama & Anor (Suing as the widow, brother and personal representatives of the estate of John Mutuku Mule (DCD) & 3 Others HCCA No. 127 of 2023- Маснakos, M.W. Muigai J. 28/9/2023; ii. Victor Mwania Robert & Another -Vs- Agnes Wambui Koigi НССА Мisc. Application No. 82 of 2020-Machakos, G V Odunga, J. 8.10.2020 https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/14310/eng@2025-07-08 3

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iii. Ретer Kioko & Another -Vs- Elizabeth Wanza Musyoki НССА Мisc. Application No. E004 of 2021- Machakos, D.K. KEMEI J. Determination: 16. I have considered the Applicant’s application dated 20th December 2024, the 1st Respondent’s grounds of opposition dated 3rd February 2025 and the submissions filed on behalf of the parties herein and the authorities relied upon in support thereof. The issue I have to determine is whether the Applicant has satisfied the conditions for grant of stay of execution pending appeal. 17. Stay of execution pending appeal is governed by Order 42 Rule 6 of the Civil Procedure Rules. It is evident from the said provision that power to grant stay of execution pending appeal is an exercise of discretion of the court on sufficient cause being shown by the Applicant that substantial loss may result to the applicant if the orders are denied; the application should be made without undue delay and the court will impose such security as the court may impose for the due performance of any decree or order as may ultimately be binding on the Applicant (see Butt Vs Rent Restriction Tribunal (1982) KLR 417 and James Wangalwa &Another Vs Agnes Nalika Chereto (2012) eKLR) 18. In the case of Masis Mwita vrs Damris Wanjiku Njeri (2016) eKLR provided the guiding principles which the court should consider while determining an application of this nature. These were; a. The power of the court to grant or refuse an application for stay of execution is a discretionary power. The discretion should be exercised in such a way as not to prevent an appeal. b. The general principle in granting or refusing a stay is; if there is no other overwhelming hindrance, a stay must be granted so that an appeal may not to be rendered nugatory should that appeal court reverse the judge's discretion. c. A judge should not refuse stay if there are good grounds for granting it merely because in his opinion, a better remedy may become available to the Applicant at the end of the proceedings. d. The court in exercising the discretion whether to grant (or) refuse an application for stay will consider the special circumstances of the cases and unique requirements. 19. On the first criterion as set out in Order 42 Rule 6 (2) i.e. Whether Applicant/Appellant has brought this application without unreasonable delay. The ruling appealed from was delivered on was delivered on 26/11/2024. The Memorandum of Appeal and the instant application were both filed on 21/12/2024, in the circumstances, I find that application has been brought without unreasonable delay. 21. The second criterion is whether the Applicant/Appellant has demonstrated that he is bound to suffer substantial loss if orders of stay of execution are not granted. The question that follows is what comprises substantial loss. In Silverstein Vs Chesoni (2002)1 KLR 867 it was held that “ The issue of substantial loss is the cornerstone of both jurisdictions. Substantial loss is what has to be prevented by preserving the status quo because such loss would render the Appeal nugatory” 22. The Appellant/Applicant has deposed that he stands to suffer loss if orders sought are not granted. Judgment was entered in favour of the Respondent, who may execute against the Applicant. If the orders sought are not granted, the Intended Appeal will be rendered nugatory, and the Applicant will stand prejudiced and suffer substantial loss while the Respondent will be unjustly enriched. The Applicant depones further that substantial loss will result if the stay is not granted. The judgment https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/14310/eng@2025-07-08 4

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delivered in which the 1st Respondent was awarded a sum of Kshs.810,790 /-, and the Respondent is poised to proceed with execution. The Applicant contends that if the decree is executed, it will result in the loss of the decretal sum. 24. That the order for stay is desirable so that the Appellant/Applicant may have their appeal heard in Court. If the decretal sum is released to the Respondent and the subsequent appeal allowed, where the financial capability of the Respondent is unknown then the applicant stands to suffer loss. 25. The court is under a duty to hold the rings of justice even handed; it should not offer any illegitimate advantage to either party. The Appellant/Applicant appeals to this Honourable Court to maintain the status quo as has been to enable the Applicant an opportunity to be heard on his Appeal. The Applicant invited this court to be guided by the case of James Wangalwa & Another vs. Agnes Naliaka Cheseto [2012] eKLR, that: “ No doubt, in law, the fact that the process of execution has been put in motion, or is likely to be put in motion, by itself, does not amount to substantial loss. Even when execution has been levied and completed the attached properties have been sold, as is the case here, does not in itself amount to substantial loss under Order 42 Rule 6 of the CPR. This is so because execution is a lawful process. The applicant must establish other factors which show that the execution will create a situation that will irreparably affect or negate the very essential core of the applicant as the successful party in the appeal ... the issue of substantial loss is the cornerstone of both jurisdictions. Substantial loss is what must be prevented by preserving the status quo because such loss would render the appeal nugatory." 26. The 1st Respondent has not contested the fact that should the decretal sum be released to him, he may not be in a position to refund the same should the appeal succeed He further deponed that in the unlikely event the court allows the application, the Applicant be ordered to release to him half the decretal sum and deposit the other half in a joint interest earning account within (14) fourteen days from the date of ruling of this application 27. In granting an order of stay of execution, the court should not be seen to interfere with a party's enjoyment of the fruit of the judgment. See the case of Stephen Wanjohi vs. Central Glass Industries Ltd. Nairobi HCCC No.6726of 1991 where the court stated as follows: “ The financial ability of a decree-holder solely is not a reason for allowing stay, it is enough that the decree-holder is not a dishonourable miscreant without any form of income. Suffice to state that the respondent, at this moment, is the successful party and in order to deny him the fruits of his success, it is upon the applicant to prove that he is unlikely to make good whatever sum he may have received in the meantime." 28. The loss the Appellant has alluded to is that the appeal herein will be rendered nugatory should the stay order be declined. It is my considered view that this being a monetary claim, any loss to be suffered by either party can adequately be compensated by an award in damages. The Appellant has not shown by evidence through an affidavit that the Respondent is incapable of refunding the decretal sums should the appeal succeed and neither has the 1st Respondent shown he is capable of refunding the decretal sum should it be released to him and the appeal succeeds. 29. The third criterion is that the Applicants/Appellants must furnish security for the due performance of the decree. I am fully aware that the court has a delicate task of balancing the interests of both the Appellant and the Respondent. The Appellant who seeks to preserve the status quo pending the hearing of the Appeal so that his Appeal is not rendered nugatory and the interest of the Respondent https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/14310/eng@2025-07-08 5

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who is seeking to enjoy the fruits of his judgement. It is true that under Order 42 rule 6 aforesaid, the Applicant is required to offer security for the due performance of the decree and the Court is entitled to take into account the fact that no such security has been offered in deciding an application thereunder. I agree with the position in Mwaura Karuga t/a Limit Enterprises vs. Kenya Bus Services Ltd & 4 Others [2015] eKLR, where it was held that: “ … the security must be one which shall achieve due performance of the decree which might ultimately be binding on the applicant. The rule does not, therefore, envisage just any security. The words ‘’ultimately be binding’ are deliberately used and are useful here, for they refer to the entire decree as will be payable at the time the appeal is lost. That is the presumption of law here. Therefore, the ultimate decree envisaged under order 42 rule 6 (2) (b) of the Civil Procedure Rules includes costs and interest on the judgment sum unless the latter two were not granted-which is seldom. The security to be given is measured on that yardstick.” 30. I also associate myself with the holding in Gianfranco Manenthi & another vs. Africa Merchant Assurance Company Ltd [2019] eKLR, where the court observed: “ … the applicant must show and meet the condition of payment of security for due performance of the decree. Under this condition a party who seeks the right of appeal from money decree of the lower court for an order of stay must satisfy this condition on security. In this regard, the security for due performance of the decree under order 42 rule 6(1) of the Civil Procedure Rules, it is trite that the winner of litigation should not be denied the opportunity to execute the degree in order to enjoy the fruits of his judgment in case the appeal fails. Further, order 42 should be seen from the point of view that a debt is already owed and due for payment to the successful litigant in a litigation before a court which has delivered the matter in his favour. This is therefore to provide a situation for the court that if the appellant fails to succeed on appeal there could be no return to status quo on the part of the plaintiff to initiate execution proceedings where the judgement involves a money decree. The court would order for the release of the deposited decretal amount to the respondent in the appeal … This the objective of the legal provisions on security was never intended to fetter the right of appeal. It was also put in place to ensure that courts do not assist litigants to delay execution of decrees through filing vexatious and frivolous appeals. In any event, the issue of deposit of security for due performance of decree is not a matter of willingness by the applicant but for the court to determine.” 31. The law is that where the applicant intends to exercise its undoubted right of appeal, and in the event, it were eventually to succeed it should not be faced with a situation in which it would find itself unable to get back its money. Likewise, the Respondent who has a decree in his favour should not, if the applicant were eventually to be unsuccessful in its intended appeal, find it difficult or impossible to realize the decree. This is the cornerstone of the requirement for security. The issue of adequacy of security was dealt with by the Court of Appeal in Nduhiu Gitahi vs. Warugongo [1988] KLR 621; 1 KAR 100; [1988-92] 2 KAR 100 where the Court of Appeal expressed itself as follows: “ The process of giving security is one, which arises constantly. So long as the opposite party can be adequately protected, it is right and proper that security should be given in a way, which is least disadvantageous to the party giving the security. It may take many forms. Bank guarantee and payment into court are but two of them. So long as it is adequate, then the https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/14310/eng@2025-07-08 6

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form of it is a matter, which is immaterial. In an application for stay pending appeal the court is faced with a situation where judgement has been given. It is subject to appeal. It may be affirmed or it may be set aside. The court is concerned with preserving the rights of both parties pending that appeal. It is not the function of the court to disadvantage the defendant while giving no legitimate advantage to the plaintiffs. It is the duty of the court to hold the ring even-handedly without prejudicing the issue pending the appeal. For that purpose, it matters not whether the plaintiffs are secured in one way rather than another. It would be easier for the defendants or if for any reason they would prefer to provide security by a bank guarantee rather than cash. There is absolutely no reason in principle why they should not do so. The aim of the court in this case was to make sure, in an even-handed manner, that the appeal would not be prejudiced and that the decretal sum would be available if required. The respondent is not entitled, for instance, to make life difficult for the applicant, so as to tempt him into settling the appeal. Nor will either party lose if the sum is actually paid with interest at court rates. Indeed, in this case there is less need to protect the defendant because nearly half the sum will have been paid and the balance was at one stage open to negotiation to reduce it”. 32. The Applicant has submitted that he is willing to deposit such reasonable security as the court may direct. This demonstrates good faith and commitment to abide by the court’s directives thereby satisfying the legal requirement for security. 33. Accordingly, I hereby allow the Appellant/Applicant’s application dated 20th December 2024 and grant stay of execution of the exparte judgment/decree in Kangundo CMCC No. 233 of 2022 pending the hearing and determination of the appeal on the following conditions: 34. a. The Appellant/ Applicant shall deposit the entire decretal sum into a joint interest earning account in a reputable commercial Bank, to be held by both advocates for the Parties to this appeal or deposit the same in court, whichever is convenient, within 30 days of this ruling in default execution to proceed; b. The Appellant shall file and serve a record of appeal within Forty-Five (45) days of this ruling; c. Costs shall be in the appeal. d. A mention date to be fixed for directions on the disposal of the appeal. It is so ordered. RULING WRITTEN, DATED & SIGNED AT MACHAKOS THIS 8TH JULY 2025 NOEL .I. ADAGI JUDGE DELIVERED VIRTUALLY ON TEAMS AT MACHAKOS THIS 8TH JULY 2025 In the presence of :.................... for Appellant/Applicant ............................. for Respondent .............................Court Assistant https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/14310/eng@2025-07-08 7

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