Stanbic Bank Kenya Limited v Hosea Ondieki Osumo

4. The deponent further avers that the Applicant, being dissatisfied with the said ruling, has since lodged an appeal against the whole of the decision, and contends that the Respondent is in substantial arrears amounting to KES. 3,247,523.01 as at 14th January 2026 under the hire purchase facility advanced for the acquisition of the motor vehicle, which motor vehicle constitutes the primary security for the said facility, and that unless an order of stay is granted, the Applicant stands to suffer substantial loss in that the security will be placed beyond its reach while the indebtedness remains outstanding. 5. He additionally states that the application has been brought expeditiously and without undue delay, and expresses the Applicant’s willingness to comply with such conditions as this Court may impose with respect to the provision of security for the due performance of any decree that may ultimately be binding upon it. 6. In the Supplementary Affidavit sworn on 16th April 2026, the same deponent reiterates the position that the Respondent remains in default of his repayment obligations, deposes that the outstanding loan continues to accrue interest thereby increasing the Applicant’s exposure, and maintains that the apprehended loss is real and imminent unless the subject motor vehicle is preserved pending the determination of the appeal. 7. The application is opposed by the affidavit sworn on 23rd January 2026 by Osumo Apima Nyaundi, who depones that he holds a power of attorney to act on behalf of the Respondent, and on that basis sets out the Respondent’s position that the motor vehicle in question was acquired pursuant to a financing arrangement between the Respondent and the Applicant, that payments have been made towards the facility, and that the repossession of the motor vehicle by the Applicant was unlawful, irregular and undertaken without due notice or lawful justification, thereby precipitating the institution of the suit before the subordinate court. 8. He further depones that, acting in the said capacity, he caused the filing of an application dated 14th May 2025 before the subordinate court seeking injunctive relief, which application was heard and determined in favour of the Respondent, culminating in the ruling delivered on 14th January 2026 whereby the trial court restrained the Applicant from selling the motor vehicle and directed that the same be released to the Respondent without the imposition of any storage, repossession or auctioneers’ charges, which orders he maintains were properly issued in the circumstances of the case. 9. He proceeds to state that the present application for stay is devoid of merit, is intended to defeat and delay the implementation of lawful court orders, and does not meet the threshold set out under Order 42 Rule 6 of the Civil Procedure Rules, further asserting that the Respondent has suffered loss and inconvenience arising from the repossession and continued detention of the motor vehicle and that no sufficient basis has been laid to demonstrate that the Applicant stands to suffer substantial loss if the orders sought are not granted. 10. In the response dated 24th February 2026, it is further contended on behalf of the Respondent that the figures relied upon by the Applicant as constituting arrears are disputed and inaccurate, and that any reconciliation of accounts or determination of the exact extent of the Respondent’s indebtedness is a matter properly falling for adjudication before the trial court in the main suit rather than at the interlocutory stage of an application for stay. 11. The Applicant’s submissions dated 16thApril 2026 are premised on the provisions of Order 42 Rule 6 of the Civil Procedure Rules and the principles governing the grant of stay of execution pending appeal, while the Respondent, in submissions dated 28th April 2026, maintains that the application does not satisfy the requisite legal threshold and urges the Court to decline the orders sought. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6641/eng@2026-04-30 2

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12. I have carefully considered the application, the affidavits placed before the Court, together with the rival submissions, and in my view the determination of the application turns on the well-established principles governing the grant of stay of execution pending appeal as set out under Order 42 Rule 6(2) of the Civil Procedure Rules. 13. The principles governing the grant of stay of execution pending appeal are well settled. In Butt v Rent Restriction Tribunal [1982] KLR 417, the Court of Appeal held that the power of the court to grant or refuse an application for stay is discretionary, and that such discretion should be exercised in a manner that does not render an appeal nugatory while at the same time ensuring that a successful litigant is not unjustly deprived of the fruits of his judgment. 14. Similarly, in Kenya Shell Limited v Kibiru & Another [1986] KLR 410, the Court of Appeal emphasized that substantial loss is the cornerstone of the jurisdiction for granting stay, and that an applicant must demonstrate that if stay is not granted, he will suffer loss that cannot be compensated by an award of damages. The Court further observed that the mere fact that execution has been put in motion does not, of itself, amount to substantial loss. 15. In Halai & Another v Thornton & Turpin (1963) Ltd [1990] KLR 365, the Court of Appeal reiterated that the conditions set out under Order 42 Rule 6 are cumulative and must all be satisfied before an order of stay can issue, namely that the application must be brought without unreasonable delay, that substantial loss may result unless the order is made, and that such security as the court orders has been given. 16. Further guidance is found in National Industrial Credit Bank Ltd v Aquinas Francis Wasike & Another [2006] eKLR, where the Court of Appeal held that once an applicant expresses a reasonable fear that a respondent would be unable to refund the decretal sum, the evidential burden shifts to the respondent to demonstrate his financial capability, since that is a matter peculiarly within his knowledge. 17. In addition, in Absalom Dova v Tarbo Transporters [2013] eKLR, the Court of Appeal underscored the need for the court to balance the competing interests of the parties, noting that the purpose of stay is to preserve the subject matter in dispute so that the rights of the appellant are safeguarded pending the determination of the appeal, without unduly prejudicing the respondent. 18. These authorities, which were cited by the parties in their respective submissions, reinforce the settled legal position that the jurisdiction under Order 42 Rule 6 is discretionary but guided by clear principles, the application of which must be tailored to the peculiar facts and circumstances of each case. 19. On the issue of delay, the ruling sought to be stayed was delivered on 14th January 2026 while the present application was filed on 23rd January 2026, and in the circumstances, a delay of approximately nine days cannot be said to be inordinate or to disentitle the Applicant to the exercise of the Court’s discretion. 20. With respect to substantial loss, which is the cornerstone of an application for stay, it is apparent that the subject matter of the dispute is motor vehicle registration number KDK 219L which also serves as the security for the loan facility advanced by the Applicant, and being a movable asset, it is inherently susceptible to depreciation, alienation or misuse. 21. In the event that the orders of the subordinate court are allowed to stand without intervention and the motor vehicle is released to the Respondent, there exists a real and substantial risk that the Applicant may be deprived of its security while the indebtedness remains contested, thereby rendering the appeal nugatory and occasioning loss which may not be adequately remedied by an award of damages. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6641/eng@2026-04-30 3

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22. Further, no sufficient material has been placed before this Court to demonstrate the Respondent’s financial ability to compensate the Applicant in the event that the appeal ultimately succeeds, and in those circumstances the apprehension expressed by the Applicant cannot be dismissed as speculative. 23. On the issue of security, the Applicant has indicated its willingness to abide by such conditions as this Court may impose, and given the nature of the dispute, I am satisfied that an order preserving the subject motor vehicle pending the determination of the appeal constitutes appropriate security for the due performance of any decree that may ultimately be binding. 24. As regards the arguability of the appeal, it is evident that the appeal raises questions concerning the propriety of the trial court’s exercise of discretion in granting injunctive relief and in directing the unconditional release of the motor vehicle notwithstanding the existence of a contested indebtedness, which issues cannot be said to be frivolous and merit consideration on appeal. 25. In the totality of the foregoing, I am satisfied that the Applicant has met the threshold set out under Order 42 Rule 6(2) of the Civil Procedure Rules and has established a proper basis for the grant of stay of execution pending appeal. 26. Consequently, the Notice of Motion dated 23rd January 2026 is hereby allowed, and it is ordered that: 1. There shall be a stay of execution of the ruling and orders delivered on 14th January 2026 in Nyamira MCCC E123 of 2025 pending the hearing and determination of the appeal 2. Motor vehicle registration number KDK 219L shall be preserved by the Applicant and shall not be sold, transferred or otherwise disposed of pending the determination of the appeal 3. For the avoidance of doubt and in order to facilitate the expeditious disposal of the appeal, it is hereby directed that the record of appeal shall be filed and served within thirty (30) days from the date hereof. 4. It is further directed that the appeal shall be disposed of by way of written submissions, with the Applicant filing and serving its submissions within fourteen (14) days of service of the record of appeal, and the Respondent filing and serving its submissions within fourteen (14) days of service of the Applicant’s submissions. 5. The matter shall be mentioned before the Deputy Registrar on 17th June 2026 for purposes of confirming compliance with orders 3) and 4) including confirmation by the Applicant, by way of affidavit, of the manner in which and the place where motor vehicle registration number KDK 219L has been secured and preserved. 6. The costs of the application shall abide the outcome of the appeal. DELIVERED AT NYAMIRA THIS 30th DAY OF APRIL 2026 WAMAE.T. W. CHERERE JUDGE Appearances Court Assistant - Hilda For Applicant - Mr. Awino for COOTOW & Associates Respondent - Present in person https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6641/eng@2026-04-30 4

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