Peterson Mitau v Charles Asanda Ayora

5. It was further deponed that the Judgment was delivered on 28/07/2022. On 06/10/2022, the Appellant filed an application for the review of the said judgment, which application was disallowed vide the Ruling sated 10/07/2023. Dissatisfied with the ruling, the Appellant filed an application for review dated 31/07/2023, and was similarly disallowed vide the ruling dated 29/10/2024. Dissatisfied with this ruling, this appeal was filed. 6. The Respondent stated that he was not served with the application, and only came to learn of the matter when his advocate came across his name in the High Court Civil Division cause list for 20/02/2025. The application shouldn’t be allowed on grounds that the Applicant failed to comply with procedure was not followed. 7. The Respondent stated that they will be prejudiced if the orders sought are granted but if the court is inclined to grant the orders sought, the same should be on condition that the Appellant deposits the decretal sum in court pending hearing and determination of the appeal. 8. The Appellant filed a Further Affidavit sworn on 21/08/2025 where he disputed contents of the Respondent’s Replying Affidavit. 9. The court gave directions that the application be disposed of by way of written submissions. However, as at the time of writing the ruling herein, only the Respondent had filed his submissions. 10. The Respondent submitted that he relied on the contents of his Replying Affidavit in opposition to the Appellant’s application. Analysis 11. 12. In consideration of the Appellant’s application, the Respondent’s Replying Affidavit, the Appellant’s Further Affidavit, and submissions by the Respondent, the issues for determination are: a. Whether the Appellant has met the requirements for grant of the stay orders sought b. Who should bear costs On whether the Appellant has satisfied the conditions for the grant of stay of execution pending Appeal, the principles guiding the grant of a stay of execution pending appeal are well settled. These principles are provided for under Order 42 Rule 6(2) of the Civil Procedure Rules which provides: “ No order for stay of execution shall be made under subrule (1) unless— 13. (a) the court is satisfied that substantial loss may result to the applicant unless the order is made and that 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. An Applicant seeking stay of execution of a decree or order pending appeal is obliged to satisfy the conditions set out in Order 42 Rule 6(2), aforementioned: namely; (a) that substantial loss may result to the applicant unless the order is made, (b) that the application has been made without unreasonable delay, and https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19477/eng@2025-11-06 2

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(c) that such security as the court orders for the due performance of such decree or order as may ultimately be binding on the applicant has been given. (See Antoine Ndiaye v African Virtual University [2015] eKLR). 14. I have to ascertain whether the Applicant has demonstrated loss that it stands to suffer if the order of stay is not granted. From the affidavit in support of the Application, the Applicant did not state whether or not he stands to suffer substantial loss if the orders are not granted. 15. Substantial loss for purposes of Order 42 rule 6 of the Civil Procedure Rules was discussed in James Wangalwa & Another v Agnes Naliaka Cheseto [2012] eKLR, that: “ No doubt, in law, the fact that the process of execution has been put in motion, or is likely to be put in motion, by itself, does not amount to substantial loss. Even when execution has been levied and completed, that is to say, the attached properties have been sold, as is the case here, does not in itself amount to substantial loss under Order 42 Rule 6 of the CPR. This is so because execution is a lawful process. The applicant must 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 ... the issue of substantial loss is the cornerstone of both jurisdictions. Substantial loss is what has to be prevented by preserving the status quo because such loss would render the appeal nugatory.” 16. The onus is upon the Applicant to demonstrate that he will suffer substantial loss in the event the Appeal succeeds. All the Applicant stated is that the appeal has high chances of success. It has also not been shown that the award by the lower court if executed and the appeal is successful, that the same cannot be recovered from the Respondent. I find that the Appellant has failed to meet the threshold for stay of execution of the Ruling, and the same is denied. 17. On costs, the applicant having failed to meet the threshold for granting of stay of execution orders, costs are awarded to the Respondent. Determination 18. Based on the above discourse, the court makes the following orders; a. the Notice of Motion dated 04/11/2024 lacks merits and is hereby dismissed. b. Costs to the Respondent. DELIVERED, DATED AND SIGNED AT MOMBASA ON THIS 6TH DAY OF NOVEMBER, 2025. ………………… F. WANGARI JUDGE In the presence of: Mr. Mittau, Applicant present in person Mr. Omwenga Advocate for the Respondent. Ms Salwa, Court Assistant https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19477/eng@2025-11-06 3

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