Shreeji Enterprises (k) Limited v D.s Roopra T/A Motorways Constructions

2. Tropical Commodities Suppliers Ltd & Others v International Credit Bank Ltd (in liquidation) [2004] EA 331 3. James Wangalwa & anor vs Agnes Naliaka Chesoto [2012] eKLR 4. National Industrial Credit Bank Ltd vs Aquinas Francis Wasike & anor [2006] eKLR 5. Gianfranco Manethi & anor v Africa Merchant Assurance Co. Ltd [2019] eKLR Response 8. In opposition to the application, the plaintiff filed a replying affidavit and a further replying affidavit sworn by its director, Dhaval Singh on 25th October 2025 and 30th May 2025 respectively. It also filed written submissions dated 29th September 2025. 9. The plaintiff submitted that following the dismissal of the defendant’s application for leave to appeal by the ruling of 11th April 2025, there is neither a Notice of Appeal properly in court nor an appeal properly filed to warrant the support of a stay order from this court. 10. The plaintiff asserted that maintaining stay order pending the reference would be speculative and prejudicial to it. 11. The plaintiff further asserted that the principle of litigation must come to an end should apply to this case. 12. Therefore, the plaintiff urged the court to vacate the orders of stay granted by the court as the court of appeal has determined the issue. Analysis and Determination 13. The issue before the court is whether the applicant has made a case for the grant of a stay of execution pending an appeal. 14. The court’s has discretion to grant a stay pending an appeal. There are three conditions which are provided under Order 42 Rule 6 of the Civil Procedure Rules, namely, the establishment of sufficient cause, substantial loss if the stay is not granted and security for the performance of the decree. Further, that the application must be made without unreasonable delay. 15. The guiding principles have been discussed by the courts. The key consideration is whether the circumstances of the case warrant a stay so as not to prevent the appeal. Butt v Rent Restriction Tribunal [1979] KECA 22 (KLR) 16. Additionally, in exercising its discretion, the court ought to balance the right of the applicant to appeal vis a vis the respondent’s right to enjoy the fruits of its judgment. Machira T/A Machira & Co Advocates vs. East African Standard (No 2) [2002] KLR 6 17. It also ought to exercise its discretion in a way that prevents the appeal, if successful, from being nugatory. Vishram Ravji Halai v Thornton & Turpin Civil Application No. Nai 15 of 1990 [1990] KLR 365 18. The applicant must demonstrate a sufficient cause to be granted stay of execution pending appeal. The circumstances of this case are peculiar. The applicant filed an application for leave to appeal out of time and lodged an appeal. The Court of Appeal declined to grant the applicant leave to lodge an appeal out of time and dismissed its application. The applicant filed a reference against the decision of the single judge which is pending determination before a three-judge bench of the Court of Appeal. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/14802/eng@2025-10-16 2

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19. The prevailing ruling of the Court of Appeal declined the applicant leave to file an appeal outside the statutory timelines. Thus, I am not persuaded that the applicant has demonstrated a sufficient cause for the grant of a stay of execution pending appeal. 20. Having found so, I do not find it necessary to go into the other conditions. 21. In my view, the interim orders of stay are spent. Disposal 22. In the upshot, the notice of motion dated 4th October 2025 is dismissed with costs. DATED, SIGNED AND DELIVERED THROUGH APPLICATION THIS 16TH DAY OF OCTOBER, 2025 MICROSOFT TEAMS ONLINE ------------F. GIKONYO M JUDGE In the presence of: Ms. Kache for Oonge for Plaintiff Ms. Mrutu for Suna for defendant CA Kinyua https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/14802/eng@2025-10-16 3

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