Jbm v Jmu

3. b. That the Defendant/Applicant is aggrieved by the above decision and has since lodged an appeal against the same. c. That the Defendant/Applicant was involved in a road traffic accident on 24/07/2025, shortly after the judgement and sustained severe injuries to his chest which caused the delay in bringing this application earlier. d. That there is a possibility of the Plaintiff/Respondent executing the impugned judgement by causing registration of the properties awarded to her exclusively by the judgement in her favour in the absence of preservatory orders hence rendering this application necessary. e. That no prejudice will be suffered by the Plaintiff/Respondent as the status quo ante the judgement will be maintained for the benefit of both parties. f. That if this application is not heard on priority basis and preservatory orders granted, the Defendant/Applicant will suffer substantial loss and damage as the Application and the intended appeal will be rendered nugatory once he is evicted. g. That the Defendant/Applicant is willing to abide by any reasonable conditions that may be imposed by this Honourable Court. h. That the intended appeal I arguable with high chances of success. i. That this Honourable Court has a constitutional duty to strive to attain substantive justice to litigants appearing before it. j. That the Plaintiff/Respondent will not suffer any prejudice if this application is allowed as prayed and any prejudice suffered as a result of the Defendant/Applicant will be adequately be compensated by way of costs. The application is supported by the annexed affidavit sworn by the Defendant/Applicant who deponed as follows: a. That the Plaintiff/Respondent moved this court seeking the distribution of my net estate. b. That this Honourable Court rendered its judgement in respect of this matter on 18/07/2025 in favour of the Plaintiff/Respondent as against me. c. That I am greatly aggrieved by the above decision and I have since lodged an appeal against the same. d. That I was involved in a road traffic accident on 24/07/2025 and sustained severe injuries to my chest from the impact of my chest on the steering wheel which caused delay in bringing this application earlier. e. That there is a possibility of the Plaintiff/Respondent executing the impugned judgement by causing registration of the properties awarded to her exclusively by the judgement in her favour in the absence of preservatory orders hence rendering this application necessary. f. That no prejudice will be suffered by the Plaintiff/Respondent as the status quo ante the judgement will be maintained for the benefit of both parties. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4300/eng@2026-04-01 2

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g. That if this application is not heard on priority basis and preservatory orders granted, the Defendant/Applicant will suffer substantial loss and damage as the Application and the intended appeal will be rendered nugatory once he is evicted. h. That the Defendant/Applicant is willing to abide by any reasonable conditions that may be imposed by this Honourable Court. i. That the intended appeal I arguable with high chances of success. j. That this Honourable Court has a constitutional duty to strive to attain substantive justice to litigants appearing before it. k. That the Plaintiff/Respondent will not suffer any prejudice if this application is allowed as prayed and any prejudice suffered as a result of the Defendant/ Applicant will be adequately be compensated by way of costs. Replying Affdavit 4. The Application is opposed vide a replying affidavit dated 8th December 2025 sworn by Josephine Musyimi Uswii, the Plaintiff/Respondent who deponed as follows: 1. That I have read and understood the Defendant/Applicants Notice of Motion dated the 14th November 2025 and the Supporting Affidavit sworn on even date. 2. That from the onset I wish to aver that the Application is an afterthought, utterly frivolous, vexatious, unwarranted and should be dismissed with costs. 3. That the said Application has further been explained to me by my Advocates on record and I swear this Affidavit in strong opposition and response thereto I wish to state as follows; 4. That the assertions propagated in paragraph 2 of the Supporting Affidavit are misleading as the estate that was distributed was the marital estate as opposed to the Applicant’s. 5. That this Honourable Court pronounced itself on this matter vide its Judgement delivered on the 18th July 2025 where amongst other orders distributed the marital estate in the ratio of 60%:40% in favor of the Applicant and Respondent respectively. 6. That the Applicant is misleading the Honourable Court to the extent that the Respondent might transfer the properties to her exclusively yet none of the properties are registered under her name. 7. That no evidence has been laid bare before this Honourable Court either in form of a sale agreement or transfer documents 8. That it is legally impossible for the Respondent to interfere with the properties yet none is registered under her name nor has she the title documents to facilitate any transfer, lease and or charge to the detriment of the Applicant. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4300/eng@2026-04-01 3

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9. That the Applicant has not substantiated any claims of the risk of the properties being wasted and/or transferred to defeat the Respondent’s interest where he is the largest shareholder. 10. That the Respondent is yet to institute any execution proceedings as the Court’s Orders cannot be realized without the Applicant’s involvement and this only infers that the Respondent’s apprehension is baseless. 11. That I have been advised by my advocates on record information which I verily believe to be true that for one to be granted an order for stay they need to demonstrate that they stand to suffer substantial loss which in this case the Applicant has not substantiated by way of production of evidence that the Respondent is in the process of disposing off or wasting properties. 12. That I am further advised by my Advocates on record information which I believe to be true that the Plaintiff’s and Defendant’s case were heard extensively and this Honourable Court delivered its Judgement on merits. 13. That the Appeal shall not be rendered nugatory if the said orders are not granted as the Respondent has not transferred any properties and in any case the Parties have to institute execution proceedings before the properties are transferred and/or interfered with. 14. That the Application is only but a non-starter with no legal basis as the Applicant has not met the threshold for granting of stay orders pending Appeal as no evidence has been tendered to demonstrate any real and/or imagined substantial loss that he stands to suffer. 15. That the Applicant has not pleaded any prejudice he shall suffer if the said orders are not granted leading to the inference that none shall be suffered. 16. That in case of any loss which is vehemently denied, the same can be sufficiently compensated by an award of damages. 17. That I am advised by my Advocate on record that one of the factors that this Court should consider before grant of a stay of execution is the fact that the Application was brought without unreasonable delay. 18. That in this case, the court pronounced itself on this matter on the 18th July 2025. 19. That the Application has been brought four (4) months after the delivery of judgement and this constitutes inordinate delay. 20. That the Applicant has not brought before this Honourable Court any occurrence Book entry and/or treatment notes to the effect that he was involved in an accident and this leaves the Honourable Court with nothing to substantiate the delay. 21. That the Applicant has not met the threshold for the grant of stay of execution pending Appeal and the same should be dismissed. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4300/eng@2026-04-01 4

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22. That based on the foregoing grounds, this Honourable Court has the inherent jurisdiction, powers and discretion to dismiss the application in the best interest of justice. 23. That I swear this Affidavit in strong opposition to the Application now before this Honourable Court. Analysis and Determination 5. I have read and considered the Notice of Motion Application and the Replying Affidavit in opposition over the same. The single issue for determination by this Honourable Court is: Whether the Applicant has satisfied the legal threshold for grant of stay of execution pending appeal under Order 42 Rule 6 of the Civil Procedure Rules. 6. 7. The law governing the grant of orders for a stay of execution pending appeal is codified under Order 42 Rule 6 (1) and 2 of the Civil Procedure Rules, which stipulates as follows: 1. No appeal or second appeal shall operate as a stay of execution or proceedings under a decree or order appealed from except appeal case of 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 the application being made, to consider such application and to make such order thereon as may to it seems just, and any person aggrieved by an order of stay made by the court from whose decision the appeal is referred may apply to the appellate court to have such order set aside. 2. No order for a 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 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. The above provision of the Civil Procedure Rules requires the Applicant seeking orders for a stay of execution to establish that he has a sufficient cause for seeking the orders, that he stands to suffer substantial loss if the orders are not granted and lastly, that he is willing to furnish security for the due performance of the decree. In addition to the above conditions, an application for a stay of execution pending appeal must be made without unreasonable delay. The three conditions to be fulfilled can therefore be summarized as follows: a. That substantial loss may result to the applicant unless the order is made. b. Application has been made without unreasonable delay. c. Security as the court orders for the due performance. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4300/eng@2026-04-01 5

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8. 9. The Court of Appeal in Butt Vs Rent Restriction Tribunal [1979] stated what ought to be considered in determining whether to grant or refuse a stay of execution pending appeal. The court said that: a. The power of the court to grant or refuse an application for a stay of execution is discretionary, and the discretion should be exercised in such a way as not to prevent an appeal. b. Secondly, the general principle in granting or refusing a stay is, if there is no other overwhelming hindrance, a stay must be granted so that an appeal may not be rendered nugatory should the appeal court reverse the judge’s discretion. c. Thirdly, a 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 the applicant at the end of the proceedings. d. Finally, the Court in exercising its discretion whether to grant or refuse an application for stay will consider the special circumstances and its unique requirements. The court in exercising its powers under Order XLI Rule 4(2) (b) of the Civil Procedure Rules, can order security upon application by either party or on its motion. Failure to put security of costs as ordered will cause the order for stay of execution to lapse. The first condition that the Applicant should meet is if he or she will suffer substantial loss if the stay orders are not granted. On what constituted substantial loss, it was explained in the case of James Wangalwa & Another Vs Agnes Naliaka Cheseto [2012] eKLR: “ 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. 10. 11. This is the cornerstone of an application for stay of execution. The Applicant contends that there is a real risk that the Respondent may proceed to execute the judgment by transferring or registering properties awarded to her, thereby rendering the appeal nugatory and exposing him to eviction and irreparable loss. The Respondent, on the other hand, argues that: a. The properties are not registered in her name; b. No execution proceedings have commenced; c. No evidence of impending disposal has been provided; d. Any loss is speculative and can be compensated by damages. It is trite law that substantial loss does not mean ordinary loss; it must be demonstrated that the loss will be real, substantial and irreparable. However, the Applicant need not prove actual loss; it is sufficient https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4300/eng@2026-04-01 6

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to demonstrate a reasonable fear of loss. In the present case, the judgment has already distributed the marital estate in a ratio of 60:40. While the Respondent argues that execution has not commenced, it is precisely at this stage before execution is finalized that preservation of the subject matter is most critical. The risk of the Respondent taking steps to actualize her proprietary rights under the decree, including registration or dealings with the properties, cannot be dismissed as remote. The Court is persuaded that if such steps are undertaken, the Applicant’s appeal may be rendered nugatory, particularly where the subject matter involves immovable property, which may be difficult to restore once transferred. 12. The Respondent’s contention that the Applicant is the largest shareholder does not eliminate the risk of loss, especially where proprietary rights are already crystallized under a judgment of the Court. Accordingly, this Court finds that the Applicant has demonstrated a reasonable apprehension of substantial loss. 13. The second consideration is whether the application was filed without unreasonable delay. The court in Jaber Mohsen Ali & Another Vs Priscillah Boit & Another E&L No. 200 of 2012 [2014] eKLR was of the view that unreasonable delay depends on the circumstances of the case. The court stated: “ The question that arises is whether this application has been filed after unreasonable delay. What is unreasonable delay is dependent on the surrounding circumstances of each case. Even one day after judgment could be unreasonable delay depending on the judgment of the court and any order given thereafter. In the case of Christopher Kendagor v Christopher Kipkorir, Eldoret E&LC 919 of 2012 the applicant had been given 14 days to vacate the suit land. He filed an application one day after the 14 days. The application was denied, the court holding that, the application ought to have come before expiry of the period given to vacate the land. I note that the judgment was delivered on 23rd July 2024. The memorandum of appeal was filed on 29th July 2024 which was less than a week after the judgment was entered. 14. The judgment sought to be stayed was delivered on 18th July 2025. The Application was filed on 14th November 2025, approximately four (4) months later. Ordinarily, such a period may raise concerns of delay. However, the Applicant has provided an explanation being that he was involved in a road traffic accident on 24th July 2025, shortly after judgment and sustained severe injuries affecting his ability to act promptly. While the Respondent challenges this explanation for lack of documentary proof, this Court takes judicial notice that road traffic accidents often result in serious and disabling injuries. The absence of annexed medical records, though not ideal, is not fatal where the explanation is plausible and not inherently improbable. Further, the Respondent has not demonstrated that she suffered prejudice due to the delay. In the circumstances, and bearing in mind that rules of procedure are handmaidens of justice, this Court finds that the delay, though not negligible, has been reasonably explained and is not inordinate so as to defeat the Application. 15. On the issue of security of costs, the purpose of security was explained in the case of Arun C. Sharma Vs Ashana Raikundalia t/a Raikundalia & Co. Advocates & 2 Others [2014] eKLR the court stated: “ The purpose of the security needed under Order 42 is to guarantee the due performance of such decree or order as may ultimately be binding on the applicant. It is not to punish the judgment debtor…. Civil process is quite different because in civil process the judgment is like a debt hence the applicants become and are judgment debtors in relation to the respondent. That is why any security given under Order 42 Rule 6 of the Civil Procedure Rules acts as security for the due performance of such decree or order as may ultimately be binding on the applicants. I presume the security must be one which can serve that purpose. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4300/eng@2026-04-01 7

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16. The Applicant has expressed willingness to abide by any conditions imposed by the Court. In exercising discretion under Order 42 Rule 6 of the Civil Procedure Rules, this Court is empowered to impose reasonable conditions, including security for the due performance of the decree. This ensures a balance between the rights of both parties. 17. The right of appeal is a constitutional safeguard under Article 50 of the Constitution of Kenya, 2010 and must not be rendered illusory. The right of appeal must be balanced against an equally weighty rigid right of the plaintiff to enjoy the fruits of the judgment delivered in his favour. In the case of Samvir Trustee Limited Vs Guardian Bank Limited [2007] eKLR the court stated: “ The Court in considering whether to grant or refuse an application for stay is empowered to see whether there exist any special circumstances which can sway the discretion of the court in a particular manner. But the yardstick is for the court to balance or weigh the scales of justice by ensuring that an appeal is not rendered nugatory while at the same time ensuring that a successful party is not impeded from the enjoyment of the fruits of his judgment. It is a fundamental factor to bear in mind that a successful party is prima facie entitled to fruits of his judgment; hence the consequence of a judgment is that it has defined the rights of a party with definitive conclusion.” 18. If execution proceeds and the properties are transferred, altered or otherwise dealt with, the substratum of the appeal would be rendered useless. Even if damages were to be awarded later, they may not fully restore the Applicant to his original position. The Court is therefore persuaded that failure to grant stay may render the intended appeal nugatory. 19. In view of the above, this Court is satisfied that the Applicant has met the threshold set under Order 42 Rule 6 of the Civil Procedure Rules. Although the Respondent has raised pertinent objections regarding delay and the alleged absence of evidence of substantial loss, this Court is persuaded that the Applicant has demonstrated a sufficient basis to warrant the exercise of its discretion in his favour. The right of appeal must be meaningfully protected and the circumstances of this case justify the Court’s intervention to ensure that the appeal, if successful, is not rendered nugatory. Accordingly, it is in the interests of justice that the orders sought be granted on appropriate terms. 20. Accordingly, the Court makes the following orders: a. That there shall be a stay of execution of the judgment delivered on 18th July 2025 and all consequential orders pending the hearing and determination of the intended appeal. b. The costs of this Application shall abide the outcome of the intended appeal. c. It is so ordered. DATED SIGNED AND DELIVERED VIA CTS & EMAIL AT ELDORET, THIS 1ST DAY OF APRIL 2026 R. NYAKUNDI JUDGE https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4300/eng@2026-04-01 8

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