Philip Kasanduku Ngua v Gabriel Kutendesya Wambua

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.” 3. The court has discretion to order stay of execution. In Butt v Rent Restriction Tribunal (1982) KLR it was held that it is the discretion of the court to grant or refuse stay but what has to be Judged in every case is whether there are particular circumstance in the case in order to grant stay of execution. It has been held that the court as a general rule ought to exercise its discretion in a way that ensures that he appeal is hears. The discretion is also exercised in such a way that the appeal is not rendered nugatory. 4. On whether substantial loss may result in Wangalwa & Another v Agnes Naliaka Cheseto (2012) eKL the court stated 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 where execution is levied and completed, that is to say the attached properties have been sold does not amount to substantial loss… The applicant must establish other factors which show that execution will create a state of affairs that will negate the very essential core of the applicant being the successful party in the appeal… the issue of substantial loss is the corner stone of both jurisdictions and it is what has to be prevented by preserving the status quo because such loss would render the appeal nugatory.” 5. In this case the applicant contends that he is likely to suffer substantial loss as the court has directed that he pays the costs of proceedings. He contends that such party should have been ordered to meet its costs or they be held to be in the cause. If execution is levied, he is likely to suffer substantial loss. 6. The appeal has been filed timeously without unreasonable delay. On the other hand, the issue of security is discretionary and it is the court that determines the security. In this case what is at stake is costs. The same has not been determined and the amount is not known. The counsel has stated in the matter none of the parties was a loser. The respondent is the administrator whereas the applicant was a creditor as well as holding a lien order over the properties. In the circumstance, if find that I should exercise discretion and issue the order to stay of execution without requiring him to deposit security. 7. In conclusion, the application has merits. There be an Order for Stay of Execution pending the hearing and determination of the appeal herein. I make no Orders as to costs. DATED, SIGNED AND DELIVERED AT KITUI THIS 11TH DAY OF FEBRUARY 2026 HON. LADY JUSTICE L. GITARI JUDGE https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4309/eng@2026-02-11 2

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