African Orthodox Church of Kenya Diocese of Nairobi, Kenya & another v TAM (Suing as Mother and Next Friend of TV and TJC) (Civil Appeal E068 of 2025) [2025] KEHC 19027 (KLR) (11 November 2025) (Ruling) Neutral citation: [2025] KEHC 19027 (KLR) REPUBLIC OF KENYA IN THE HIGH COURT AT KISUMU CIVIL APPEAL E068 OF 2025 JM OMIDO, J NOVEMBER 11, 2025 BETWEEN AFRICAN ORTHODOX CHURCH OF KENYA DIOCESE OF NAIROBI, KENYA ................................................................................................ 1ST APPELLANT ARCHBISHOP MAKARIOS ............................................................ 2ND APPELLANT AND TAM (SUING AS MOTHER AND NEXT FRIEND OF TV AND TJC) ........................................................................................................ RESPONDENT RULING 1. The only issue outstanding in the Appellants’ Amended Notice of Motion dated 29th April, 2025 is the nature of the security to be furnished by the Appellant as a condition to issuance of an order of stay of execution pending appeal against the judgment and decree of the learned trial court delivered on 24th February, 2025, vide which the trial court directed that the Appellants do surrender possession of motor vehicle registration number KCG 770K to the Respondent within thirty (30) days. 2. The Appellants contend that unless stay is granted, the appeal will be rendered nugatory. 3. The Respondent has indicated that she has no objection to the grant of stay but prays that the court orders the Appellants to furnish sufficient security for the due performance of the decree, in the event the appeal is unsuccessful. 4. The principles guiding the grant of stay of execution pending appeal are settled under Order 42 Rule 6(2) of the Civil Procedure Rules and are that: a. The Appellant must demonstrate that substantial loss may result unless the stay is granted; b. The application must be made without unreasonable delay; and https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19027/eng@2025-11-11 1
page 1 of 3
c. The Appellant must furnish security for the due performance of the decree as may ultimately be binding upon him. 5. As I have stated above, the only issue that remains for determination is the nature of the security to be furnished. 6. This being a non-monetary decree involving possession of a motor vehicle, the usual form of security by deposit of money may not be apt. A motor vehicle is a depreciating asset and therefore, it is in the interest of justice that its value and condition be preserved pending the hearing and determination of the appeal. 7. In similar circumstances, courts have held that the appropriate form of security is for the court to issue conditions ensuring that the vehicle is maintained in good condition and not disposed of pending appeal (see Kenya Shell Ltd v. Benjamin Karuga Kibiru & Another [1986] KLR 410; Focin Motorcycle Co. Ltd v. Ann Wambui Wangui & Another [2018] eKLR). 8. Accordingly, the court hereby makes the following orders: 9. a. There shall be a stay of execution of the judgment and decree of the trial court delivered on 24th February, 2025 court in Kisumu MCCC No. E234 of 2021 pending the hearing and determination of this appeal. b. The stay is conditional upon the Appellant complying with the following terms: 1. The Appellants shall keep the said vehicle comprehensively insured at all times in the joint names of the Appellants and the Respondent and shall not sell, transfer, alienate or part with the possession thereof, pending the determination of the appeal. 2. The Appellants shall within twenty-one (21) days from the date hereof file and serve a current valuation report of the said vehicle to ascertain its prevailing value. 3. The valuation in (2) above shall be conducted at the cost of the Appellants by a valuer to be jointly agreed upon by the parties herein. In the event that the parties are unable to agree on the valuer, the Deputy Registrar of this court shall appoint the valuer, on the application of either party. 4. The Appellants shall ensure that the vehicle remains in good running condition and shall, upon reasonable request by the Respondent or direction of the court, produce the vehicle for purposes of inspection. 5. In default of compliance with any of the above conditions, the stay granted herein shall automatically lapse. 6. Costs of this application shall abide the outcome of the appeal. This appeal will be mentioned on 5th February, 2026 for directions. DELIVERED (virtually), DATED & SIGNED THIS 11TH DAY OF NOVEMBER, 2025. JOE M. OMIDO JUDGE For Appellants: Ms. Watiri for Mr. Githinji. For Respondent: No appearance. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19027/eng@2025-11-11 2
page 2 of 3
Court Assistant: Mr. Ngoge. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19027/eng@2025-11-11 3
page 3 of 3