Pinnacore Printers & Stationers Limited v Stephen Kirimi Mugambi

6. The Applicant confirmed its willingness to deposit the entire decretal sum in a joint interest-earning account. Reliance was placed on the decision in Focin Motorcycle Co. Ltd vs. Ann Wambui Wangui [2018] eKLR where provision of security was considered as demonstration of good faith. The Respondent’s Submissions 7. The Respondent opposed the application on the grounds that no substantial loss had been demonstrated since no warrants of attachment had been issued. According to the Respondent, the fear of execution was merely speculative. He cited the decision in James Wangalwa & Another vs. Agnes Naliaka Cheseto [2012] eKLR where it was held that: “ …the fact that execution has been commenced does not amount to substantial loss…” 8. The Respondent submitted that the appeal is frivolous as the employment and injury were conclusively proved by the Appellant’s own employee who confirmed that the Respondent was a casual labourer. The Respondent cited the case of Machira t/a Machira & Co Advocates v East African Standard [2002] eKLR for the argument that courts should not assist parties who merely seek to delay justice. 9. The Respondent argued that the Applicant is guilty of abuse of process and forum shopping having filed a similar application in the lower court only to withdrew it after obtaining interim stay in the High Court. 10. It was the Respondent’s case that he is entitled to enjoy the fruits of the judgment. Issues for Determination 11. From the pleadings and submissions, I find that the main issue for determination is whether the Applicant has made out a case for the granting of an order for stay of execution pending appeal. 12. The law governing the granting of stay of execution pending appeal by the High Court is codified under Order 42 Rule 6 of the Civil Procedure Rules. The relief is discretionary but such discretion must be exercised judicially, which means that the order is only grantable upon defined principles of law; not capriciously or whimsically. Stay of execution should only be granted where sufficient cause has been shown by the Applicant. In determining whether sufficient cause has been shown, the court should be guided by the three prerequisites, namely that;Substantial loss may result to the applicant unless the order is made,The application has been made without unreasonable delay, andSuch security as the court orders for the due performance of the decree or order as may ultimately be binding on the applicant has been given by the applicant. 13. The above conditions are the essence of Order 42 Rule 6 CPR and the absence of one will affect the exercise of the discretion of the court in granting stay of execution. Substantial Loss 14. The Applicant submitted that the Respondent has no known assets or income, and has not proved financial ability to refund the decretal sum. The Applicant cited the case of National Industrial Credit Bank Ltd vs. Aquinas Francis Wasike & Another [2006] eKLR where it was held that: “ …once an applicant expresses a reasonable fear that the respondent will be unable to refund the decretal sum, the evidential burden shifts to the respondent…” 15. The Applicant contended that execution will cripple its business and occasion it irreparable harm. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19403/eng@2025-11-20 2

page 2 of 4

16. The Respondent, on his part, submitted that no warrants of attachment have been issued and that the fear of execution is merely speculative. 17. My take is that the mere fact that the process of execution has been put in motion, or is likely to be put in motion does not, by itself, amount to substantial loss since execution is a lawful process. The applicant is required to 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. 18. The Appellant claims the Respondent is a person of limited means and would be unable to refund the decretal sum. The Respondent did not present evidence of financial capability. As was stated in National Industrial Credit Bank Ltd vs. Wasike (supra): “ Once an applicant expresses a reasonable fear that the respondent would be unable to refund the decretal sum, the evidential burden shifts to the respondent.” 19. In the instant case, I note that the Respondent, beyond asserting he earns Kshs. 700/= daily, did not demonstrate capacity to refund Kshs. 1,197,148.80. This Court is persuaded that payment of such a sum, without assurance of refund, risks rendering the appeal nugatory. I therefore find that substantial loss has been established. Delay 20. On whether the instant application has been made without unreasonable delay, I note that judgment was delivered on 21st July 2025, and the present application filed 18 days later on 7th August 2025. I find that the 18 days, coupled with the prompt filing of the memorandum of appeal, cannot be said to be unreasonable delay. Security 21. Order 42 Rule 6(2)(b) requires security for due performance of the decree. In the instant case, I note that the Appellant has expressly offered to deposit the entire decretal sum in a joint interest-earning joint account. To my mind, the Applicant’s proposal to provide security is a mark of good faith. I find that security has been sufficiently offered. Whether Discretion Should Be Exercised 22. In this case, the Appellant has shown substantial loss, acted promptly, and offered adequate security. The Respondent’s main prejudice is delayed enjoyment of the fruits of judgment, which is mitigated by the deposit of the decretal sum. I find that the balance of convenience tilts in favour of preserving the subject matter of the appeal. In Butt vs. Rent Restriction Tribunal [1982] KLR 417 it was held that: “ …the power to grant stay is discretionary and should be exercised so as not to render the appeal nugatory…” Disposition 23. For the reasons that I have stated in this ruling, I make the following final orders: a. Stay of execution of the judgment delivered on 21st July 2025 in CMCC No. 815 of 2016 is hereby granted pending determination of the appeal. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19403/eng@2025-11-20 3

page 3 of 4

b. The Appellant shall deposit the entire decretal sum of Kshs. 1,197,148.80 in an interest-earning joint account in the names of counsel for both parties within 30 days from the date of this ruling. c. In default of Order (2), the stay shall automatically lapse. d. Costs of this application shall abide the outcome of the appeal. It is so ordered. DATED, SIGNED AND DELIVERED AT NAIROBI THIS 20*TH DAY OF NOVEMBER, 2025. HON. W. A. OKWANY JUDGE 20/11/2025 For Appellant …………… For the Respondent ………… Court Assistant Ubah https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19403/eng@2025-11-20 4

page 4 of 4