Kelvin Kioko Kithendu v Beatrice Muthoki Kiamba

4. The respondent opposed the application and filed grounds of opposition. The grounds are as follows: 1. That the application does not meet the threshold for granting the orders for stay of execution pending determination of the appeal as set out under Order 42 Rule 6(2) of the Civil Procedure Rules. 2. The application is intended to deny the respondent enjoyment of the fruits of her Judgement. The application was canvassed by way of written submissions. Applicant’s Submissions 5. The applicant submits that seeks stay of execution pending the hearing and determination of the appeal. That the appeal raises substantial points of law which are: i. The right to fair trial and ii. The right to hearing, are matters enlisted n the bill of rights in the Constitution under Article 25(4) and 50(2). That the two are key fundamental rights in every dispute or determination. That the matter was never heard and determined as the applicant was never served with summons to enter appearance and so the initial proceedings were done in a manner skewed to ambush him and to block him form being heard in the case or having a chance to contest the claim. That the issue he had raised that he had suffered depression, a mental condition was not determined. 6. That he had engaged lawyers who let him down and he should not be made to suffer on account of mistake by his advocate. That stay of execution is merited. That he is willing to deposit security of Kshs. 45,000/= of the court orders stay of execution. 7. On the grounds of opposition, it is suited that the issue of security is discretionary and each case must be taken on its own surrounding circumstances. That the amount of Kshs. 500,000/= is a substantial amount and he would suffer substantial loss if stay is not ordered and it would take substantial time to recover it. The applicant relies on Butt v Rent Restriction Tribunal (1979) eKLR where it was held that: a. The power of the court to grant or refuse an application for stay of execution is a discretionary power and should be exercised in such a way not to prevent the appeal. b. The general principal in granting or refusing a stay is, if there is no other over whelming hindrance a stay must be granted so that an appeal may not be rendered nugatory should the appeal court reverses the Judge’s discretion. c. The Judge should not refuse a stay if there are good grounds for granting it merely because in his opinion a better remedy may become available to he applicant at the end of the proceedings. d. The court exercising discretion whether to grant or refuse an application for stay will consider the special circumstances case and its unique requirements.” 8. The applicant further relies on R.W.W v EKW (2019) eKLR where it was stated the purpose of an application for stay of execution pending an appeal is to preserve the subject matter in the dispute so that the rights of the appellant who is exercising the right of appeal are safeguarded and if appeal is successful it is not rendered nugatory. 9. The appellant also relies on Ravji Halai v Thornton & Turpin Civil Application No. 15/1990 KLR 365 where the court of Appeal stated that courts are now enjoined to give effect to the overriding https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19557/eng@2025-11-11 2

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objectives in exercise of its powers under the Civil Procedure Act or in the interpretation of any of its provisions. He further relies on Classic Building Works Limited v Panson Construction Co. Ltd 2014 eKLR where the court of Appeal stated that the court can order presentation of status quo pending hearing and determination of the appeal. It is submitted that the applicant had not proved her claim on merit and it is therefore fair and justice that stay be granted. He prays that the application be allowed. Respondent’s Submissions 10. It is submitted that the applicant’s submissions are not merited. That the application does not meet the threshold provided under Order 42 Rule 6 of the Civil Procedure Rules. That the applicant has not demonstrated that substantial loss may result. That the burden rests on him to demonstrate the loss that he is likely to suffer. That the proposed security of Kshs. 45,000/= is not even a minimal portion of the decretal sum. 11. That stay of execution is a serious judicial measure that substantially entails a party’s right to pursue their case. He relies on Global Tours and Travels Limited quoted in Kenya Wildlife Service v James Mutembei (2019) KEHC 10478 KLR where it was stated that the whether or not to order stay of a decree is a matter of exercise or judicial discretion to be exercised in interest of justice and in so doing consider such matters as expeditious disposal of cases, the merits of the intended appeal in the sense of not whether it will succeed or not but whether it is an arguable one, the scarcity and optimum utilization of judicial time. 12. The respondents submit that the application is meant to delay the respondent from enjoying the fruits of his Judgment. That the applicant has engaged five advocates and his application was dismissed for want of prosecution a fact that demonstrates that he is not litigating in good faith. The counsel relies on Turbo Highway Eldoret Ltd v Muniu (2022) KEHC 10197 (KLR) where it was stated that stay of execution is a serious, grave and fundamental interruption in the right of a party and should not be imposed unless the proceedings beyond any reasonable doubts ought to be allowed to continue. The respondent prays that the application be dismissed. Analysis and Determination 13. I have considered the application, the grounds of opposition and the submission. The issue that arises for determination is whether the applicant has made out a case to warrant this court to order stay of execution pending the appeal. Stay of execution is provided under Order 42 rule 6 of the Civil Procedure Rules which provides: “ (1) No appeal or second appeal shall operate as a stay of execution or proceedings under a decree or order appealed from except in so far as the court appealed from may order but, the court appealed from may for sufficient cause order stay of execution of such decree or order, and whether the application for such stay shall have been granted or refused by the court appealed from, the court to which such appeal is preferred shall be at liberty, on application being made, to consider such application and to make such order thereon as may to it seem just, and any person aggrieved by an order of stay made by the court from whose decision the appeal is preferred may apply to the appellate court to have such order set aside. (2) No order for stay of execution shall be made under sub-rule (1) unless—(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 https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19557/eng@2025-11-11 3

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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. (3) Notwithstanding anything contained in sub-rule (2), the court shall have power, without formal application made, to order upon such terms as it may deem fit a stay of execution pending the hearing of a formal application. (4) For the purposes of this rule an appeal to the Court of Appeal shall be deemed to have been filed when under the Rules of that Court notice of appeal has been given. (5) An application for stay of execution may be made informally immediately following the delivery of judgment or ruling. (6) Notwithstanding anything contained in sub-rule (1) of this rule the High Court shall have power in the exercise of its appellate jurisdiction to grant a temporary injunction on such terms as it thinks just provided the procedure for instituting an appeal from a subordinate court or tribunal has been complied with.” 14. For the court to order stay of proceedings he or she must demonstrate that he has an arguable appeal which may be rendered nugatory of say if execution is not ordered. That he is likely suffer substantial loss and that security is provided as may be ordered by the court. The grant of an order of stay of execution, is a matter of exercise of discretion. The applicant must demonstrate sufficient cause. It has been held that execution of a decree is a lawful process and for the court to order stay it must be for a good cause. Substantial loss is the key issue that the court considers and has to be prevented by preserving the status quo. The substantial loss would render the appeal nugatory. 15. I have perused the lower court record and noted that the applicant was not served with summons to enter appearance and the plaint. In Ali Bin Khamis v Salim Khamis Korobe & 2 Others (1956) 23 EACA. The court of Appeal for Eastern Africa held that an order made without service of summons is a nullity and ought to be set aside ex-debuto justicial. As observed earlier, stay is ordered to preserve the status quo and the subject matter pending the hearing and determination of the appeal. It has been demonstrated that the applicant was not given an opportunity to be heard. The applicant is likely to suffer substantial loss as the amount involved is a huge amount of money. If stay is not ordered the appeal shall be rendered nugatory and yet there are substantial issues raised by the appellant. In an application for stay, the court’s discretion is exercised to ensure that stay is granted if there is no overwhelming hindrance. 16. The wide discretion given to the court is to ensure that the power is exercised in a way not to prevent the appeal. See Butt v Rent Restriction Tribunal (supra) the applicant has demonstrated that the matter was not heard on merit. The right to be heard before an adverse decision is taken against a person is fundamental and permeates our entire justice system. It is a principle of natural justice which requires that men and women should not be condemned unheard. He applicant should be afforded an opportunity to be heard. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19557/eng@2025-11-11 4

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17. In Silverstein v Chesoni (2002) 1 KLR 867 the court emphasized the centrality of substantial loss when it stated: “ …the issue of substantial loss is the cover stone of both jurisdictions, it is what has to be prevented by preserving he status quo because such loss would render the appeal nugatory.” 18. In this matter the decree is for Kshs. 655,987/= plus costs. The amount is quite substantial. The applicant would suffer substantial loss if stay is not ordered and the appeal succeeds. There is no allegation that the respondent would not be able to refund. Stay of execution is a matter of exercise of judicial discretion which should be exercised judiciary and in the interest of justice. The court should exercise discretion in favour of the applicant to give him an opportunity to ventilate his appeal. 19. On the issue of Security, Order 42 rule 6 (supra) provides that it is the court that is supposed to order the security that the applicant should provide. The security is ordered to ensure that costs for the successful party are guaranteed. The security ordered should not be primitive and hinder the party from accessing justice. That is why the discretion is given to the court to determine the reasonable security in the interest of justice. The applicant has proposed a security as required. The security is proposed is so minimal and so this court will exercise discretion and order a suitable security. 20. I note that as per the decree, the costs are Kshs. 77,400/=. The security of costs should start from the costs already incurred. Further costs have been incurred in defending this application. 21. On whether the appeal is arguable, I have noted the contention that the appellant was never served with summons and has also stated that his rights were violated. I find that the appeal is not frivolous and the appellant should be given an opportunity to argue the appeal. Dispositions 22. For the reasons stated, I find that the application has merits. I allow it. I Order that: a. There shall be stay of execution pending the haring and determination of the appeal. b. The appellant shall provide security by depositing Kshs. 100,000/= in court within twentyone (21) days from today. c. If security is not deposited the respondent shall be at liberty to execute. DATED, SIGNED AND DELIVERED AT KITUI THIS 11TH DAY OF NOVEMBER 2025 HON. LADY JUSTICE L. GITARI JUDGE https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19557/eng@2025-11-11 5

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