Enend Kageni & 1 other v Ken Gikunda Kinyua

Appellants Submissions 5. The Appellants submit that judgment of the trial court was delivered on 25 /04/ 2025 while the memorandum of Appeal, and the present Application were both filed on 2 /05/2025, and thus the Application was filed without undue delay. 6. On the issue of substantial loss, the Applicant submits that in the absence of any demonstration that the respondent is a person of means, then that constitutes prove of substantial loss. It is further submitted that the Applicant is unemployed widow and any execution process will most likely be directed against her household items and minimal stocks which is her only source of income. 7. The Applicant has further submitted that security for due performance is no longer mandatory , going by the recent decisions of the court. In this regard, the Applicant has cited Civil Appeal No. 123 of 2023 to buttress his submissions (The complete citation is not provided and nor a copy of the decision attached to the submissions ). It is further submitted that the Applicant’s impecunious state has not been contested . The Applicant therefore prays that the Application be allowed without an order for placement of security. Respondent’s submissions 8. It is the Respondent’s submission that the Applicant will not suffer any loss beyond the ordinary , to which every judgment debtor is subjected to; that the fact that the process of execution is about to, or has been set in motion does not amount to a substantial loss ,as execution of a decree is a lawful process. 9. It is further submitted that the respondent is a man of means who is capable of refunding the decretal sum if the Appeal succeeds. On security it is submitted that this is necessary for purposes of the respondent’s interest. 10. Both parties have relied on a number of Authorities which I have considered. Determination 11. Application for stay of execution pending Appeal is governed by Order 42 Rule 6 of the Civil Procedure Rules. Order 42 Rule 6(2) provides that “no order of stay of execution shall be made unless the court is satisfied that: a. Substantial loss may result to the applicant unless the order is made, and 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.” 12. Further it is trite law that the Applicant must demonstrate that the Appeal is arguable with high chance of success, and that the Appeal will otherwise be rendered nugatory unless leave is granted. 13. On substantial loss, I have taken note of the fact that the Applicants’ grounds of opposition or Affidavit in support is silent on this . However the issue was raised in the submission and the respondent has has equally addressed it. The court will therefore make a determination on it. 14. The Appellant’s submission is that the respondent has failed to show proof of his financial capability to refund the decretal sum in the event that the Appeal succeeds. The respondent has asserted that he is a man of means. However this assertion has been made without proof . The respondent has not told the court the source or level of his income, for the court to determine is ability to refund the decretal https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/14923/eng@2025-09-30 2

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sum. The trend in recent decisions of the superior courts indicate that whereas the legal burden in the Application for stay pending Appeal remains with the Applicant , when the issue of the financial capability of the respondent to refund the decretal sum is raised, the evidential burden falls on the respondent to prove his financial standing . 15. In the case of Kenya posts and Telecommunications Corporation vs Paul Gachanga Ndarau (2001)e KLR ( NBI Civil Application No. 367 of 2001, the court of Appeal held: “ Of course, ordinarily the burden was on the Corporation to show that were its appeal to succeed, the success would be rendered nugatory because the respondent would be unable to restore the decretal sum if that sum was immediately paid out to respondent immediately. But in a case such as this where it is alleged that the respondent has no known assets, the evidential burden must shift to him to show that he has assets from which he can refund the decretal sum. That must be so because the property a man has is a matter so peculiarly within his knowledge that an applicant such as the Corporation may not reasonably be expected to know them. He did not do so”. (Emphasis added. 16. On the question of delay, the Application was filed within one month following the delivery of the judgment . It is the finding of the court that there was no delay in filing the Application. 17. I have perused the memorandum of Appeal. The applicant is challenging the Judgment on liability which was apportioned in the ratio of 80/20 against the Appellant; the award of ksh. 800,000 in general damages ,and Kshs. 200,000/= for loss of earning capacity. At this stage of the proceedings I can only state that the grounds raised are far from being frivolous. They are arguable. 18. On security , its purpose is well settled . It is to secure the performance of the decree in the event that the Appeal fails. The purpose was aptly put in the case of Mwaura Karuga t/a Limit Enterprises vs. Kenya Bus Services Ltd & 4 Others [2015] eKLR, where the court held: “ …… 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 ( Emphasis added). 19. Thus whereas I agree that there are instances where an order of security may not be practicable , for instance in non- monetary decrees , there can be no valid reason as to why , such an order should not be made in money decrees.The respondent has a judgment already , whose enforcement should not be unnecessarily delayed by other established prerequisite process, if the Appeal fails. Unfortunately for the Applicant her economic status is not a factor for consideration , when an Application of this nature is being determined. 20. The Application for leave to represent the Applicant by Allan Mafumbo & Co Advocates is not opposed. 21. In the end , the Application succeeds in the following terms: 1. That Leave is hereby granted to the firm of Allan Mafumbo & Co Advocates to represent the Appellant in these proceedings . The leave is deemed to have taken effect from the first day when the Application came up in court. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/14923/eng@2025-09-30 3

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2. That the execution of the Judgment and Decree issued in the Chief Magistrates Court at Isiolo in MCCC/E044/2023 on 25th April, 2025, is hereby stayed pending the hearing and determination of the Appeal. 3. That the Stay granted in Order 1 is conditional upon the Applicants depositing the decretal sum an interest-earning bank account held jointly in the names of the respective Advocates within forty-five (45) days from the date of this Ruling. 4. That in default of compliance with Order 2 above, the orders for stay shall automatically lapse and the Respondent shall be at liberty to initiate execution proceedings. 5. That the costs of this Application shall abide the outcome of the Appeal. DATED , SIGNED AND DELIVERED AT ISIOLO THIS 30TH DAY OF SEPTEMBER , 2025. S. CHIRCHIR JUDGE In the presence of : Roba Katelo- court Assistant Mr. Mafumbo for the Applicant https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/14923/eng@2025-09-30 4

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