Mons-cons General Contractors Limited & 1 other v Jonesmus Mwanzia Kituu

Appellants’ Submissions 5. The Appellants submit that the decretal sum is substantial, and payment thereof prior to determination of the appeal would occasion substantial loss. They argue that the Respondent has not demonstrated the financial capacity to refund the decretal amount should the appeal succeed. 6. It was submitted that the appeal is arguable and not frivolous, and denial of stay would render it nugatory. The Appellants added that the application was made without unreasonable delay and that they are willing to comply with the security requirement by providing a bank guarantee, which sufficiently safeguards the Respondent’s interests. Respondent’s Submissions 7. The Respondent, on his part, submits that a successful litigant is entitled to enjoy the fruits of judgment and that the Appellants have not demonstrated actual substantial loss beyond mere apprehension. 8. It was submitted that a bank guarantee is inadequate security in a money decree and that the appeal lacks merit and is not arguable. 9. According to the Respondent, justice demands a balancing of rights, and the Respondent proposes payment of half the decretal sum and the remainder deposited in court or a joint account. Issues for Determination 10. Having considered the application, affidavits, and submissions, I find that the main issue for my determination is whether the Applicants has made out a case for the granting of orders for stay of execution pending appeal. Analysis and Determination 11. The application is anchored on Order 42 Rule 6(2) of the Civil Procedure Rules, which provides that: No order for stay of execution shall be made unless— (a) The court is satisfied that substantial loss may result to the applicant unless the order is made; (b) The application has been made without unreasonable delay; and (c) Such security as the court orders for the due performance of the decree has been given. Substantial Loss 12. The cornerstone of stay is substantial loss. In Kenya Shell Ltd v. Kibiru [1986] KLR 410, the Court of Appeal held that: “ Substantial loss is the cornerstone of both jurisdictions for granting a stay. Without it, there is no basis for granting stay.” 13. In the present case, the Appellants have demonstrated that the decretal sum is substantial and that the Respondent has not placed before Court any evidence of his ability to refund the amount if the appeal succeeds. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/1645/eng@2026-02-12 2

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14. The Applicants assert that execution will expose him to attachment, sale of assets, and irreversible loss. I however note that the decree herein is purely monetary. In National Industrial Credit Bank Ltd v. Aquinas Francis Wasike [2006] eKLR, the Court held that : “ Once an applicant expresses reasonable fear that a respondent may not refund the decretal sum, the evidential burden shifts to the respondent to show ability to repay.” 15. I am satisfied that the Appellants have demonstrated a real risk of substantial loss. Delay 16. I note that the impugned judgment was delivered on 24th July 2025, the appeal filed on 1st August 2025, and the present application filed on 3rd September 2025. I find that there was no unreasonable delay in filing the instant application. Security for Due Performance 17. Order 42 Rule 6(2)(b) of the CPR makes provision of security mandatory. In Focin Motorcycle Co. Ltd v. Ann Wambui Wangui [2018] eKLR, it was held that the purpose of security is to guarantee the due performance of the decree and not to punish the judgment debtor. 18. In the instant case, the Appellants propose a bank guarantee, while the Respondent insists on partial payment of the decretal sum and a deposit of the balance in an interest earning account. 19. My finding is that considering the nature of this case which involved injury in a road traffic accident, a conditional stay would best serve the interests of justice. 20. Consequently and in balancing the Applicants’ right of appeal against the Respondent’s right to enjoy the fruits of his judgment, and guided by Order 42 Rule 6 CPR, I find that the Applicants have partially satisfied the threshold for stay. 21. Accordingly, I make the following orders: a. Stay of execution of the judgment delivered on 18th September 2025 is hereby granted but on condition that the Applicant shall, within 45 days of this ruling: i. Pay to the Respondent the half of the decretal sum; and ii. Deposit the balance of the decretal sum in an interest-earning joint account in the names of the parties’ advocates, or in court, as security. b. In default of compliance, the stay shall automatically lapse. c. Costs of the application shall abide the outcome of the intended appeal. DATED, SIGNED AND DELIVERED AT NAIROBI THIS 12TH DAY OF FEBRUARY 2026. HON W. A. OKWANY JUDGE In the presence of Kinyanjui for Mutegi for Appellant No appearance for Respondent Abdirzak - Court Assistant https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/1645/eng@2026-02-12 3

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