Nyamira Luxury Express Company Limited v Nyangena (Civil Miscellaneous E012 of 2026) [2026] KEHC 6658 (KLR) (30 April 2026) (Ruling) Neutral citation: [2026] KEHC 6658 (KLR) REPUBLIC OF KENYA IN THE HIGH COURT AT NYAMIRA CIVIL MISCELLANEOUS E012 OF 2026 TW CHERERE, J APRIL 30, 2026 BETWEEN NYAMIRA LUXURY EXPRESS COMPANY LIMITED ..................... APPLICANT AND ROBERT NYANCHOKA NYANGENA ............................................ RESPONDENT RULING 1. The Notice of Motion dated 13th April 2026 seeks an order of stay of execution of the judgment in Keroka SPMCC 81 of 2020 pending appeal. 2. On 15th April 2026, this Court granted a conditional stay of execution on the express condition that the Applicant deposits the decretal sum in court by close of business on 17th April 2026. 3. The record shows that the application was duly served upon the Respondent’s advocates on 16th April 2026 as evidenced by the affidavit of service sworn on 18th April 2026, and it is not opposed. 4. The question that arises is whether the Applicant has met the legal threshold for the grant of stay pending appeal. 5. The governing provision is Order 42 rule 6(2) of the Civil Procedure Rules, which requires an applicant to demonstrate substantial loss, absence of unreasonable delay, and the provision of such security as the Court may order for the due performance of the decree. These requirements are conjunctive and must all be satisfied before the Court can exercise its discretion in favour of an applicant. 6. In the present matter, the Court had already addressed the requirement of security by directing the deposit of the decretal sum as a condition for stay. That condition was central to the exercise of the Court’s discretion. However, there is no material placed before the Court to show that the Applicant complied with that order, nor has there been any attempt to seek extension or variation of the condition imposed. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6658/eng@2026-04-30 1
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7. The consequence of such non-compliance is well settled. Where a stay is granted on terms, those terms must be strictly adhered to, failing which the foundation upon which the discretionary relief rests collapses. In Wainoga v Sudan [2025] KECA 2026 (KLR), the Court of Appeal underscored that compliance with conditions attached to stay orders is integral to the exercise of discretion, and failure to meet the threshold for such relief renders the application devoid of merit. 8. Applying that principle to the present case, the Applicant’s failure to deposit the decretal sum defeats the application. Security for due performance is not a mere procedural requirement but a substantive condition anchored in law. The fact that the application is unopposed does not obviate the need for strict compliance with the requirements of Order 42 rule 6(2). 9. In the premises, the Court is not satisfied that the Applicant has met the conditions for the grant of stay of execution pending appeal. 10. Consequently, it is hereby ordered: 1. The Notice of Motion dated 13th April 2026 is hereby dismissed. 2. The conditional stay granted on 15th April 2026 is hereby discharged for non-compliance. 3. File closed. DELIVERED AT NYAMIRA THIS 30TH DAY OF APRIL, 2026. WAMAE. T. W. CHERERE JUDGE Appearances; Court Assistant - Hilda. For Applicant - Ms. Ongwacho for KRK Advocates LLP. For Respondent - N/A for Ben K.Gichana & Co. Advocates. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6658/eng@2026-04-30 2
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