Coastline Safaris v Catherine Njeri Maseki

5. The Respondent further states that the Applicant had not met the mandatory provisions of order 42 Rule 1, 2 and 3 of the Civil Procedure Rules as the Applicant has not demonstrated sufficient cause or substantial loss that would justify denying the Respondent the fruits of her judgment. 6. Parties were directed to file written submissions and they both complied by filing their rival submissions in support of their case. The Appellant in the submissions dated 02/07/2025 submitted that it had met the conditions for granting of the stay of execution orders. It was further submitted that the Respondent would not suffer any prejudice if the orders issued are granted. The Applicant stated that it was willing to deposit the principal sum of Kshs. 754,807 as security. 7. On its part, the Respondent in her submissions dated 10/07/2025 reiterated the position in the Replying Affidavit that the Applicant had failed to meet the threshold for granting of stay of execution orders and it is just denying the Respondent from enjoying the fruits of the judgment. 8. The Respondent submitted that in the event the court grants the orders as prayed, the Applicant should deposit the decretal sum as at the time of execution amounting to Kshs. 4,614,974, in an escrow account in the names of both counsels on record. Analysis 9. 10. I have analyzed the application, response and the submissions and authorities filed by the parties in support of their rival positions. The issues for determination are; a. Whether the Appellant has demonstrated that the order it seeks of stay of execution pending appeal at the Court of Appeal is merited. b. Who bears the costs 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— 11. (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. Therefore, 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 (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). https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4354/eng@2026-02-19 2

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12. As to what substantial loss is, it was observed 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.” 13. In the instant case, the Applicant avers that it stands to suffer substantial loss. Warrants of Attachment and Proclamation of Movable Property have already been issued, and if stay of execution is not granted, the Applicant risks execution causing it to suffer substantive loss as it will have irreparable effect on the part of the Appellant. 14. The application was brought without delay as it was filed less than 30 days after the Warrant of Attachment and Proclamation of Sale of Movable Goods both dated 17/04/2025 as per the annexures to the Supporting Affidavit. I find that there was no delay. On security, this court must balance the interests of both parties on record. The decretal amount of execution of Kshs. 4,614,974 should be deposited as security within the next 30 days after Ruling. 15. On costs, the same shall follow the outcome of the appeal. Determination 16. In the circumstances, the Application dated 09/05/2025 is allowed on the following terms; a. There be stay of execution as prayed but on condition that the sum of Kshs. 4,614,974/= be deposited in in an escrow account in the names of both counsels on record within the next 30 days. b. In default of (a) above, the stay orders lapse and the Respondent is at liberty to execute. c. Costs of the Application to abide the outcome of the Appeal. DATED, SIGNED AND DELIVERED VIRTUALLY AT MOMBASA THIS 19TH DAY OF FEBRUARY, 2026. ………………… HON. F. WANGARI JUDGE OF THE HIGH COURT In the presence of: Mr. Karina Advocate for the Appellant Ms. Umara Advocate for the Respondent Ms. Salwa, Court Assistant https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4354/eng@2026-02-19 3

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