William Nzilu Malonza v Absa Bank Kenya Plc & 1 other

is supported by the affidavit sworn by the Applicant on the even date and a further affidavit sworn by him on 21st June 2024. 4. 5. The Applicant herein prays to Court as follows, that: a. Spent b) Spent c) Pending the hearing and determination of the appeal, an order of injunction does issue restraining the Respondents whether by themselves, their servants, employees, agents and any other person whomsoever and howsoever claiming under them from selling by auction or otherwise or in any way alienating the properties known as Maisonette Number 53 erected on L.R. No. 20521 (I.R. 132140) situate in the then Mavoko Municipality, Machakos District (now Machakos County). d. Any other or further relief that the court may deem just and appropriate in the circumstances. d. Costs of the application be in the cause. The application is based on the grounds that:a. On or about 4th October 2024, the trial court delivered a ruling in Mavoko MCCC E409 of 2024 wherein it dismissed the Appellant's application dated 21st June 2024. b. The said application sought inter alia for orders of injunction restraining the Respondents whether by themselves, their servants, employees, agents and any other person claiming under them from selling by auction or otherwise or in any way alienating the suit property. c. The trial court held that the Appellant had not satisfied the 3 conditions for grant of a temporary injunction. d. Being dissatisfied with the ruling, the Appellant timeously filed a Memorandum of Appeal on 15th October 2024. e. Unless an order of stay of execution is granted, the Appellant shall suffer substantial loss in that the Respondents are likely to sell and or alienate the suit property, which is a matrimonial home where the Appellant resides with his family. f. This application has been brought timeously and it is in the interest of justice to preserve the subject matter of the appeal so that the appeal is not rendered nugatory or overtaken by events or rendered academic. The Response 6. The application is opposed by the Respondents vide the Replying Affidavit sworn by the Samuel Njuguna, 1st Respondent’s Legal Officer on 21st November 2024 and requests this court to dismiss the application with costs to the Respondents and restrain from issuing any injunction and/or stay of execution orders for the reasons that:a. the intended appeal is devoid of merit and fails to establish a prima facie case on a balance of probabilities, nor does it demonstrate any likelihood of success. It appears to be a mere attempt to prevent the Bank from realizing the fruits of justice as granted by the trial court in its ruling dated 4th October 2024. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/14311/eng@2025-05-06 2

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b. The Applicant having willingly entered into a binding contract vide Charge dated 10th May 2011, a Further Charge dated 29th June 2015, and a 2nd Further Charge dated 5th July 2019, the Appellant/Applicant is bound to the terms thereof and cannot purport to seek sympathy from the Court to avoid the consequences therefrom. c. The grant of the orders sought by the Applicant will only prejudice the Bank's exercise of its rights as lawfully granted and that the Applicant will suffer no prejudice if orders sought are not granted since he has always been aware of the consequences of his failure to comply with his obligations under the Charge. In any event the application for stay of execution is an afterthought and was brought with delay, that is Fourteen (14) days after the Magistrate’s ruling. d. The Applicant has further failed to persuade the court to grant stay of orders pending hearing of the Appeal as he has not demonstrated willingness to offer security for the due performance of the statutory notices, needless to say that he is heavily indebted and the loan continues to accrue interest and penalties. e. Lastly, that the Notice of Motion dated 18th October 2024 is res judicata as the issue was conclusively dealt with by the lower court and it touches the same subject matter, parties and transaction and should therefore be discharged. Submissions 7. The application was canvassed through written submissions. The Applicant’s submissions are dated the 16th January 2025 while the Respondent’s submissions are dated 3rd February 2024. Appellant/Applicant’s submission 8. The Applicant submits that the instant application is brought under Order 42 Rule 6 (6) of the Civil Procedure Rules, which provide as follows:“ Notwithstanding anything contained in Subrule (7) of this rule the High Court shall have power in exercise of its appellate jurisdiction to grant a temporary injunction on such terms as it thinks just provided the procedure for instituting an appeal from a Subordinate court or tribunal has been complied with. " 9. The Applicant also submits that he has satisfied two preconditions for grant of an injunction under Order 42(6) (6) of the Civil Procedure Rules, to wit, that there is before the court a valid appeal and secondly, that the court is exercising its appellate jurisdiction. 10. The Appellant/Applicant identifies only one issue for determination, to wit, Whether he has met the threshold for grant of temporary injunction pending appeal and has cited the case of Patricia Njeri & 3 others V. National Museum of Kenya [20041 eKLR, which reiterated the principles governing or guiding grant of a temporary injunction pending appeal as follows:i. An order of injunction pending appeal is discretionary and will not be exercised where an appeal is frivolous. ii. In cases where a grant of injunction is likely to inflict greater hardship or prejudice, a court should decline to exercise discretion in favour of an Appellant. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/14311/eng@2025-05-06 3

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iii. 11. An appellant must demonstrate that unless an injunction is granted the appeal is to be rendered nugatory or academic. The Applicant argued that the traditional principles for grant of an injunction as set out in the case of Giella V. Casman Brown [79731 EA 358 are to be considered and proceeded to submit under various heads on whether the Appeal was frivolous, whether the Appeal will be rendered nugatory and hence irreparable damage, fraud and concealment of evidence by the Respondents, whether the Respondents acted in good faith, whether the Respondents issued the requisite notices, whether a Forced Sale Valuation of the suit property was undertaken. I will consider each of the above under my analysis and determination herein. Respondent’s submission 12. The Respondents submitted on one major issue on whether the application raises arguable grounds of appeal. The Respondents sought to bring to the attention of this court the fact that, this Appeal having minimal chances of success and does not meet the threshold required for a stay of execution under Order 42 Rule 6 of the Civil Procedure Rules. The circumstances of this case reveal that the Appellant has acted in bad faith by failing to make any loan repayments, despite enjoying the benefit of a temporary injunction. The Appellant has taken no meaningful steps to regularize the loan account or demonstrate willingness to honour the contractual obligations under the charge instruments. Instead, the Appellant has resorted to tactics aimed at delaying the Bank's lawful right to realize its security. 13. Allowing this appeal would only serve to penalize the Bank, which has acted within the law while rewarding the Appellant's inaction and disregard for their obligations. Judicial time, which is a valuable resource, ought to be preserved for cases with substantive issues warranting judicial intervention. In this instance, the Appellant has failed to establish any compelling grounds to warrant a stay or justify a reversal of the trial court's decision. 14. The Respondent further submitted on whether the Appellant is likely to suffer substantial loss unless this application is allowed under Order 42 Rule 6(6) of the Civil Procedure Rules, on whether the absence of data in the Bank's Statement of Account from 1st January 2010 and 18th July 2019renders the financial figures in the case unascertainable, on whether the forced sale valuation of the suit property was conducted in compliance with the law and on whether the statutory notices issued by the Bank to the Appellant were in strict compliance with the requirements of the law. 15. This court will consider the Respondents’ submission on whether the Appellant is likely to suffer substantial loss unless this application is allowed. The rest of the issues submitted on by the Respondent can be determined at the trial of the appeal. Analysis and Determination 16. I have considered the application, the supporting affidavit, the replying affidavit, the further affidavit and the rival submissions filed by Parties’ counsel as well as the judicial decisions relied upon. In my view, the major issue for determination is : Whether the Applicant/Appellant has met the criteria for grant of orders under Order 42 Rule 6 of the Civil Procedure Rules under which his application is premised. 17. The Appellant has approached this court under Order 42 Rule 6 of the Civil Procedure Rules, claiming that substantial loss would be suffered unless the order sought is granted. The Appellant further contends that the absence of data up to 2019 from the Banks Statement of Accounts renders the figures https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/14311/eng@2025-05-06 4

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in this matter unascertainable. Additionally, the Appellant argues that the forced sale valuation was not conducted, and that the statutory notices required under the law were not properly issued. 18. 19. 20. Order 42 Rule 6 of the Civil Procedure Rules,2010 provides as follows:1. No appeal or second appeal shall operate as a stay of execution or proceedings under a decree or order appealed from except in so far as the court appealed from may order but, the court appealed from may for sufficient cause order stay of execution of such decree or order, and whether the application for such stay shall have been granted or refused by the court appealed from, the court to which such appeal is preferred shall be at liberty, on application being made, to consider such application and to make such order thereon as may to it seem just, and any person aggrieved by an order of stay made by the court from whose decision the appeal is preferred may apply to the appellate court to have such order set aside. 2. 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. 3. Notwithstanding anything contained in subrule (2), the court shall have power, without formal application made, to order upon such terms as it may deem fit a stay of execution pending the hearing of a formal application. 4. For the purposes of this rule an appeal to the Court of Appeal shall be deemed to have been filed when under the Rules of that Court notice of appeal has been given. 5. An application for stay of execution may be made informally immediately following the delivery of judgment or ruling. 6. Notwithstanding anything contained in subrule (1) of this rule the High Court shall have power in the exercise of its appellate jurisdiction to grant a temporary injunction on such terms as it thinks just provided the procedure for instituting an appeal from a subordinate court or tribunal has been complied with. In Vishram Ravji Halai v Thornton & Turpin Civil Application No. Nai. 15 of 1990 [1990] KLR 365, the Court of Appeal held that whereas the Court of Appeal’s power to grant a stay pending appeal is unfettered, the High Court’s jurisdiction to do so under Order 41 rule 6 of the Civil Procedure Rules is fettered by three conditions namely:a. establishment of a sufficient cause, b. satisfaction of substantial loss and c. the furnishing of security. Further the application must be made without unreasonable delay. To the foregoing, Justice Odunga in Michael Ntouthi Mitheu v Abraham Kivondo Musau [2021] eKLR held that: “ I would add that the stay may only be granted for sufficient cause and that the court in deciding whether or not to grant the stay and that in light of the overriding objective stipulated in sections 1A and 1B of the Civil Procedure Act, the Court is no longer limited https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/14311/eng@2025-05-06 5

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to the foregoing provisions. The courts are now enjoined to give effect to the overriding objective in the exercise of its powers under the Civil Procedure Act or in the interpretation of any of its provisions. According to Section 1A (2) of the Civil Procedure Act: “the Court shall, in the exercise of its powers under this Act or the interpretation of any of its provisions, seek to give effect to the overriding objective.” 21. Under Section 1B some of the aims of the said objective are; the just determination of the proceedings; the efficient disposal of the business of the court; the efficient use of the available judicial and administrative resources; and the timely disposal of the proceedings, and all other proceedings in the court, at a cost affordable by the respective parties. 22. In Stephen Boro Gitiha v Family Finance Building Society & 3 Others Civil Application No. Nai. 263 of 2009, Nyamu, JA on 20/11/09 held inter alia that the overriding objective overshadows all technicalities, precedents, rules and actions which are in conflict with it and whatever is in conflict with it must give way. 23. The same Judge in Kenya Commercial Bank Limited v Kenya Planters Co-Operative Union Civil Application No. Nai. 85 of 2010 held that: “ where there is a conflict between the statute (overriding objective principle) and a subsidiary legislation (rules of the court) the statute must prevail. Although the rules have their value and shall continue to apply subject to being O2 complaint, the O2 principle is not there to fulfil them but to supplement them where they prove to be a hindrance to the O2 principle or attainment of justice and fairness in the circumstances of each case.” 24. It therefore follows that all the pre-overriding Objective decisions must now be looked at in the light of the said provisions. This does not necessarily imply that all precedents are ignored but that the same must be interpreted in a manner that gives effect to the said objective. What is expected of the court is to ensure that the aims and intendment of the overriding objective as stipulated in section 1A as read with section 1B of the Civil Procedure Act are attained. It is therefore important that the court takes into consideration the likely effect of granting the stay on the proceedings in question. In other words, the court ought to weigh the likely consequences of granting the stay or not doing so and lean towards a determination which is unlikely to lead to an undesirable or absurd outcome. What the court ought to do when confronted with such circumstances is to consider the twin overriding principles of proportionality and equality of arms which are aimed at placing the parties before the court on equal footing and see where the scales of justice lie considering the fact that it is the business of the court, so far as possible, to secure that any transitional motions before the court do not render nugatory the ultimate end of justice. 25. The court, in exercising its discretion, should therefore always opt for the lower rather than the higher risk of injustice. 26. In Butt v Rent Restriction Tribunal [1979], the Court of Appeal gave pointers on what ought to be considered in determining whether to grant or refuse stay of execution pending appeal. The court stated thus: i. The power of the court to grant or refuse an application for a stay of execution is a discretionary, and the discretion should be exercised in such a way as not to prevent an Appeal. ii. 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 be rendered nugatory should the Appeal court reverse the judge’s discretion. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/14311/eng@2025-05-06 6

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iii. Thirdly, a judge should not refuse a 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. iv. Finally, the court in exercising its discretion whether to grant or refuse an application for stay will consider the special circumstances of the case and its unique requirements. Application brought without unreasonable delay 27. On the first criterion as to whether the Applicants/Appellants has brought this application without unreasonable delay. The ruling before the trial court was delivered on 4th October 2024. The Memorandum of Appeal dated 14th October 2024 was lodged in court on 15th October 2024 while the instant application dated 18th October 2024 was filed in court on 18th October 2024 which was fourteen days after delivery of the ruling. In the circumstances, I find that application has been brought without unreasonable delay. Substantial Loss 28. The second criterion on whether the Applicant/Appellant has demonstrated that he is bound to suffer substantial loss if orders of stay of execution is not granted. The question that follows is what comprises substantial loss. In Silverstein v 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” 29. The Appellant/Applicant has submitted that the 1st Respondent did not provide evidence on the exact amount due, if any; it fraudulently withheld and or disclosed a complete bank statement; it failed to adhere to the procedure provided for in respect of service statutory notices; it failed to undertake a forced sale valuation of the suit property. The question to be asked is whether given the foregoing facts, the Respondents should be allowed to extinguish the Appellant's equity of redemption and if so, whether the consequence thereof will occasion an irreparable injury to the Appellant. 30. The suit property is a matrimonial house and if it is sold, the Appellant will have lost his homestead before his appeal is heard despite glaring illegalities. He relied on the case of Patel V. The Kingdom Bank Limited & 2 others (Commercial Civil Case E088 of 2021 KEHC 394 (KLR) where the court (Mabeya J) considered the issue of irreparable loss in the following words: “ As regards the second limb, the court takes the view that the plaintiff stands to suffer irreparable harm which cannot be compensated in damages if the injunction sought is not granted. This is so because the Estate of the deceased will be divested of the suit property by a party who has not established that it has a right over the debt secured by the suit property. 31. On the other hand, the Respondents submit on the issue of substantial loss to be suffered by the Appellant that the Appellant has primarily anchored his Appeal on the wording of Order 42 Rule 6(6) of the Civil Procedure Rules cited herein above. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/14311/eng@2025-05-06 7

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32. In reiterating the wording of Order 42 Rule 6 in general, the Respondents relied on the decision of Justice Gikonyo in James Wangalwa & Another V Agnes Naliaka Cheseto [2012] eKLR which noted thus: “ The granting of stay of execution pending appeal by the High Court is grantable at the discretion of the court on sufficient cause being established by the Appellant. The incidence of the legal burden of proof on matters which the Appellant must prove lies with the Appellant. See the Halsbury's Law of England, vol. 17, paragraph 14: Incidence of the legal burden in respect of a particular allegation, the burden lies upon the party for whom the substantiation of the particular allegation is an essential of his case. Sufficient cause being a technical as well as legal requirement will depend entirely on the Appellant satisfying the court that: a. Substantial loss may result to the Appellant unless the order is made, 33. The Respondents submit that while it is indeed correct that the High Court is exercising its appellate jurisdiction in this matter, they contend that the Appellant does not have a valid case. A valid Appeal is anchored on whether there will be substantial loss to the Appellant as noted in the aforementioned James Wangalwa case. 34. The Respondents cited the case Antoine Ndiaye v African Virtual University [2015] KEHC 6783 (KLR) where, Justice Gikonyo in defining what amounts to substantial loss stated thus: “ And substantial loss in the sense of Order 42 rule 6 has been described; see the following rendition in a work of Ogola J in Tropical Commodity Suppliers Ltd (Supra) that:"...Substantial loss does not represent any particular mathematical formula. Rather, it is a qualitative concept. it refers to any loss, great or small, that is of real worth or value as distinguished from a loss without value or a loss that is merely nominal... 35. Also, in the case of Bungoma HC Misc Application No 42 of 2011 James Wangalwa & Another v Agnes Naliaka Cheseto that: “ The Appellant must establish other factors which show that the execution will create a state of affairs that will irreparably affect or negate the very essential core of the Appellant as the successful party in the appeal. This is what substantial loss would entail... " (Emphasis mine) 36. The Respondents submit that from the cited case of Tropical Commodity Suppliers Ltd, they can confirm that the subject property holds really worth and value, but the critical question is: to whom does this value belong? The answer is the Bank. The Appellant voluntarily vested this value in the Bank by signing the charge instrument, using the property as security for financial accommodation. Consequently, the property does not confer any inherent value to the Appellant as a defaulter. Having defaulted on repayment, the Appellant has no legitimate claim over the value of property until the secured debt is settled. Therefore, there would be no substantial loss on the side of the Appellant. 37. Furthermore, from the cited case of James Wangalwa & Another v Agnes Naliaka Cheseto, proving substantial loss requires evidence of circumstances that would irreparably affect or undermine the core position of the successful party in an appeal, thereby negating their ability to benefit from a favourable judgment. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/14311/eng@2025-05-06 8

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38. Substantial loss, in this context, refers to a significant disadvantage or harm that an Appellant would suffer if the court's orders or the judgment being appealed were to proceed. It is the kind of loss that cannot be easily compensated by monetary damages or would be difficult to remedy once the action has been taken. In essence, it refers to a loss that is severe enough to justify the need for a court's intervention to preserve the status quo until the appeal is determined. 39. The possibility of the execution of an interim order does not amount to substantial loss. This was well captured by Gikonyo J in the case very same case of James Wangalwa & Anor v Agnes Naliaka Cheseto [2012] eKLR (supra) where the learned Judge observed: “ 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, that is to say, 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 state of affairs that will irreparably affect or negate the very essential core of the Applicant as the successful party in the appeal. This is what substantial loss would entail. 40. The Respondents argue that the Appellant's claim of substantial loss is not convincing because the loss he might suffer (such as losing property through sale) can be adequately compensated by monetary damages, should the Appellant succeed in the appeal. Therefore, the alleged "substantial loss" does not meet the legal threshold that would warrant a stay of execution or an injunction under Order 42 Rule 6(6) of the Civil Procedure Rules. 41. I have considered the respective rival arguments by the Parties’ counsel on the issue of likely substantial loss to be suffered by the Appellant if the injunction pending appeal is not granted. 42. The Appellant contends that he is in occupation of the suit property which is a matrimonial home. If he is dispossessed and it is ultimately found that the sale was unwarranted, his condition would never be reinstated, he will thereby suffer loss that is irreparable. 43. The Respondents believe that the loss to be suffered by the Appellant can adequately compensated by monetary damages, should the Appellant succeed in the appeal. 44. I cannot ascertain through the instant application that the suit property is the Appellant’s matrimonial home or who between the parties is in breach of law and or the terms and conditions of the contract subject of these proceedings. These two crucial matters can only be considered and determined at the trial of the main suit. 45. In the instant matter, if the court was to deny the Applicant the order for stay of execution, it would place the Applicant at a more prejudicial position than the Respondents. While it is unfortunate that the Respondents will have to wait to enjoy the fruits of trial court’s ruling, the Applicant has adequately demonstrated that he is likely to suffer loss should the suit property be attached and sold off. 46. In the case of Lucy Waithaka V. Industrial and Commercial Development Corporation [2001] eKLR, the Hon. Justice Ringera (as he then was) held that: “ It is not an inexorable rule that where damages may be an appropriate remedy, an interlocutory injunction should never issue. If that were the rule, the law would unduly lean https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/14311/eng@2025-05-06 9

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in favour of those rich enough to pay damages for all manner of trespass. That would not only be unjust but it would be seen to be unjust. " 47. See also Olympic Sports House Limited V. School Equipment Centre Limited [2012] eKLR, where the court held that:“ As regards the second limb of Giela V. Cassman Brown I have always held the view that once a party establishes that a defendant has breached an express provision of the law, an injunction should issue to aid the law. " 48. 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 appeal to this Honourable Court to maintain the status quo as has been to enable him an opportunity to be heard on this Appeal. 49. Guided by the above authorities and in the absence of determination by the court on the suit as to whether the suit property is a matrimonial home or whether there has been whatsoever breach by either party herein, I find that the Appellant has satisfied this court that he will have lost his homestead and hence will suffer substantial loss if the order for injunction is not granted before the appeal is heard and determined. 50. I am satisfied that the Applicant has adequately demonstrated that he would suffer substantial loss if stay is not granted. The Appellant has therefore fulfilled this condition. Security 51. The Appellant contends that the 1st Respondent consistently failed and declined to supply or provide the appellant and the court bank statement account for period running from January 2010 to July 2019 (a period of 9 years). The Bank Statement as provided by the 1st Respondent, is clear that whereas at page 1 it indicates that the statement is for period from 01/07/2000 to 09/07/2024, the data for the period between January 2010 to 19th July 2019 is deliberately omitted. Needless to state but without such data the outstanding amount cannot be ascertained or verified. 52. In response, the 1st Respondent has acknowledged that the absence of data for the preceding period between 1st January 2010 to 18th July 2019 are omitted but submits that this omission cannot form a basis for seeking an injunction or setting aside the ruling of the Trial Court. That the absence of data for the earlier period does not render the outstanding figures unascertainable, as the necessary evidence has already been provided through the Charge documents. 53. In the instant case, there is no decree yet, but the Magistrate’s court has already dismissed the Applicant’s interlocutory application seeking a temporary injunctive order restraining the Respondents whether by themselves, their servants, employees, agents and any other person whomsoever and howsoever claiming under them from selling by auction or otherwise or in any way alienating the properties known as Maisonette Number 53 erected on L.R. No. 20521 (I.R. 132140) situate in the then Mavoko Municipality, Machakos District (now Machakos County) pending hearing and determination of the suit. It therefore means that the Respondents are at liberty to proceed with public auction and sale of the Applicant’s suit property in recovery of the loan amounts pending the hearing and determination of the suit before the Magistrate’s court. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/14311/eng@2025-05-06 10

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54. As regards deposit of security, the court observed in the case of Gianfranco Manenthi & Another v Africa merchant Assurance Co. Ltd [2019] eKLR it was held that:“ 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 a 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 decree in order to enjoy the fruits of his judgment in case the appeal falls. 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 judgment involves a money decree. The court would order for the release of the deposited decretal amount to the respondent in the appeal…. Thus, 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. Counsel for the applicant submitted that he is ready to provide a bank guarantee as security for due performance of the decree.” The Court must similarly consider the overriding objective and balance the interest of the parties to the suit while considering the issue of security to be offered. The law is that where the applicant intends to exercise his undoubted right of appeal, and in the event, that he were eventually to succeed, he should not be faced with a situation in which he would find himself 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. 55. The issue of adequacy of security was dealt with by the Court of Appeal in Nduhiu Gitahi v 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 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 https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/14311/eng@2025-05-06 11

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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”. 56. As already demonstrated in James Wangalwa & Another v. Agnes Naliaka Cheseto (supra) the three (3) conditions for granting stay of execution pending appeal must be met simultaneously. They are conjunctive. It is my finding that the Applicant herein, though he brought this application without undue delay and adequately demonstrated the substantial loss that he would suffer, did not furnish or offer security for the performance of the order, in the event he was unsuccessful in the Appeal. 57. The amount owing to the 1st Respondent by the Applicant is disputed and the correct amount will be ascertaining after the hearing and determination of the main suit. At this juncture, the court is not able to give orders on what amount of security to be deposited by the Applicant in the circumstances. 58. In the case of Arun C Sharma v Ashana Raikundalia T/A Raikundalia & Co. Advocates and 2 others (2014) eKLR, the court held that:“ The purpose of the security under Order 42 is to guarantee 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 applicant 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 a security for the 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.” Disposition 59. I am satisfied based on the above decisions that this court has the jurisdiction to grant an injunction pending appeal. The Applicant has satisfied the first and second requirements for grant of an injunction. The subject matter is land where the Applicant resides. If it is sold, it will be put out of reach of the Applicant and I take into account the sentimental value placed on land in Kenya. 60. The upshot is that after a careful review and evaluation of the material before the Court and having regard to all the circumstances and the applicable law and the fact that the 1st Respondent is holding the title to the suit property as security for the loan. I will make no order as regards security in this matter. I exercise my discretion and allow the application for stay in terms of prayer three of the Notice of Motion dated 18th October 2024 and a further order that the proceedings before the trial court be stayed pending the hearing and determination of the appeal herein. 61. Costs of the application to abide the outcome of the Appeal. 62. It is so ordered. RULING WRITTEN, SIGNED & DATED AT MACHAKOS THIS 6TH MAY 2025 NOEL I. ADAGI JUDGE https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/14311/eng@2025-05-06 12

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DELIVERED VIRTUALLY ON TEAMS AT MACHAKOS THIS 6TH MAY 2025. In the presence of : Ms. Muluvi hb for Mr. Mutua, SC.... for Appellant/Applicant Mr. Mbira hb for Mr. Kamiti ....... for Respondents Milly Grace....... Court Assistant https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/14311/eng@2025-05-06 13

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