Matheka v Nthuli (Miscellaneous Application E223 of 2024) [2025] KEHC 14328 (KLR) (10 June 2025) (Ruling) Neutral citation: [2025] KEHC 14328 (KLR) REPUBLIC OF KENYA IN THE HIGH COURT AT MACHAKOS MISCELLANEOUS APPLICATION E223 OF 2024 NIO ADAGI, J JUNE 10, 2025 BETWEEN BENSON MUTHEKE MATHEKA ......................................................... APPLICANT AND FLORENCE MIKAYO NTHULI ........................................................ RESPONDENT RULING Introduction 1. What is before me for determination is the Notice of Motion Application dated 17th July, 2024. It is brought under the provisions Order 42 Rule 1,2 & 6, Order 51 Rule 1, Order 50 Rule 1, 3 and 5 of the Civil Procedure Rules, 2010, Sections 3, 3A 7 79G of the Civil Procedure Act, Article 159 (2) (d) of the Constitution of Kenya 2010 and all other enabling provisions of the Law. 2. Prayer 1 of the said application is basically spent and the main prayers sought are prayers 2, 3, 4, 5, 6, 7 and 8 which generally seek stay of execution of the decrees issued in Machakos SCCCs No. E844, E841, E843, E885, E884, E842 and E884 all of 2023 pending hearing and determination of the intended appeal, Machakos SCCC No. E844 of 2023 be allowed to start de novo and lastly that the Applicant be allowed to furnish security for costs in form of a Bank Guarantee form the Family Bank. The application is supported by a supporting affidavit of Benson Mutheka Matheka, the Applicant dated 17th July 2023. 3. This application is opposed by the Respondent who filed a detailed Replying Affidavit sworn on 14th August 2024 by Florence Mikayo Nthuli, the Respondent herein. The facts in this application are not in contention as there is a valid decree made in favour of the Respondent and which remains unsettled. In an application dated 15th March 2024, the Applicant had sought to review or set aside the judgment before the trial court and vide a ruling dated 2nd May 2024 the same was dismissed with costs. 4. Being aggrieved by the said ruling, the Applicant filed the instant application. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/14328/eng@2025-06-10 1
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5. Directions were given for the application to be canvassed through written submissions. Only the Respondent filed submissions dated 14th November 2024. Analysis & Determination 6. I have carefully considered the Application, Supporting Affidavit, the Respondent's Replying Affidavit and Submissions. The only issue for determination is whether the Appellant has met the conditions necessary for the grant of stay pending appeal and whether there is a valid appeal on which to grant the orders. 7. 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). 8. In the case of Masis Mwita v Damaris 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. 9. The record reveals there is a Memorandum of Appeal dated 17th July 2024 and filed in court on 22nd July 2024 purportedly against the trial court’s ruling delivered on 8th February 2024. The Memorandum of Appeal was filed after 5 months down the line. The Appeal was filed contrary to the provisions of Section 79G of the Civil Procedure Act. No valid appeal therefore exists against the ruling delivered on 8th February 2024 by the trial court and neither is there a prayer in the instant application seeking for leave to admit the Appeal out of time. 10. There is no proper appeal before this court the basis upon which proceedings of stay of execution may be considered. 11. The application as filed therefore lacks merit and the same is dismissed with costs to the Respondent. 12. It is so ordered. RULING WRITTEN, DATED & SIGNED AT MACHAKOS THIS 10TH JUNE 2025 NOEL I. ADAGI JUDGE DELIVERED VIRTUALLY ON TEAMS AT MACHAKOS THIS 10TH JUNE 2025 https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/14328/eng@2025-06-10 2
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In the presence of : Mr. Mwaro h/b for Mr.Ouko........ for Appellant/Applicant Mr. Muasya...... ..for Respondent Milly.......... Court Assistant https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/14328/eng@2025-06-10 3
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