Lizzie Njoki Macharia & 1 other v Mariita Bitutu Margaret & 2 others

2. The appellants filed the affidavit sworn by Lizzie Njoki Macharia in support of the motion. When served with the application, the 1st Respondent on her part filed a replying affidavit. She swore to oppose the motion. On the other hand, the 3rd Respondent through its advocate indicated that it was not opposing the instant motion because it does not affect it. The 1st Respondent also filed written submissions. 3. I have considered the grounds stated on the face of the motion and the facts deponed in the rival affidavits. It is the submission of the appellants that on 7 th August, 2025 the trial court entered judgment in favour of the Respondents and against the appellant/applicants in the sum of Ksh 130,750/= representing both general and special damages plus costs and interests. The appellants have expressed their intention to challenge the award on appeal. The ORIGINAL: DO NOT REMOVE FROM FILE appellants aver that their appeal has high chances of success. 4. The appellants further aver that unless an order for stay is granted, they stand to suffer substantial loss and damage and that the appeal will be rendered nugatory. They also argued that the instant application was filed without unreasonable delay. This court was beseeched to grant an order for stay of execution of the decree/judgment to pave way for the applicants to exercise their right of appeal. The appellants submitted that they are ready and willing to deposit the entire decretal sum in an interest earning account in the joint names of the advocates and or firms of advocates appearing in this appeal. Civil Appeal No. E231 of 2025 - Ruling Page 2

page 2 of 6

5. The 1st Respondent opposed the application arguing that the same is defective, unmerited and incompetent and does not meet the threshold for the grant of the orders for stay of execution pending appeal. She further submitted that the appellants have no competent appeal to warrant issuance of the discretionary order for stay of execution pending appeal. She argued that she stands to suffer immense prejudice should the court grant the orders sought since she is a successful litigant who should be left to enjoy the fruits of her judgment. The 1st Respondent further argued that the appellants have not demonstrated that they are likely to suffer substantial loss in the event the orders sought are stayed. She also argued that this being a monetary decree, the appeal will not be rendered nugatory because they can be compensated should the appeal succeed. This court was ORIGINAL: DO NOT REMOVE FROM FILE urged to order the appellants to pay the 1 st Respondent half the decretal sum and deposit the other in an interest earning account in the joint names of the advocates and or names of firms of advocates appearing in this appeal. The 1 st Respondent deponed that she is a person of means and therefore able to reimburse the appellants should the appeal succeed. 6. There is no doubt that the instant application is brought under order 42 rule 6 of the Civil Procedure Rules. It is trite law that an order for stay of execution of the decree pending appeal cannot be granted unless the applicants meet the following conditions: First, that the application was filed without unreasonable delay. Secondly, that the court is Civil Appeal No. E231 of 2025 - Ruling Page 3

page 3 of 6

satisfied that substantial loss my result to the applicant unless the order is made. Thirdly, that such security as the court orders for the due performance of such decree. 7. On the first condition, I have already considered the arguments put forward by the parties. According to the applicants, the application was made without unreasonable delay. The 1st Respondent is of the submissions that the application was made after a long and unexplained delay. It is not in dispute that the instant application was filed on 5 th February, 2026. The judgment/decree sought to be stayed was delivered and or issued on 7 th August, 2025. In short, the application was made after the lapse of six months from the date of judgment. The applicant merely stated that the application was made timely. In my view, an application for stay of execution pending appeal made after the lapse of six ORIGINAL: DO NOT REMOVE FROM FILE (6) months from the date of judgment cannot be said to have been marked timely. The applicant failed to provide the reasons for the delay of filing the instant application. It is apparent that the memorandum of appeal was filed on 8 th September, 2025. It took the applicant more than five months thereafter to file the application for stay. The delay however is not inordinate. The appellants should have actually explained the delay. For now, this court will excuse the delay. 8. The second condition is that the applicant should show the substantial loss she would suffer if the order for stay is not granted. In this matter, the applicant averred that the judgment sum is substantial and that she would suffer Civil Appeal No. E231 of 2025 - Ruling Page 4

page 4 of 6

irreparable loss and prejudice as her right of appeal will be curtailed. The applicant further stated that the 1 st Respondent’s ability to refund the amount is unknown. The 1st Respondent on the other hand is of the submission that she is a person of means and able to reimburse the appellants/applicants the decretal sum if the appeal succeeds. It is trite law that execution is a lawful process which cannot be whimsically halted. It has been argued by the appellants/applicants that they will suffer substantial loss because the 1st Respondent is not in a position to refund the decretal sum should the appeal succeed. The 1 st Respondent has come forward to state that she is in a position to refund the decretal sum when called upon to do so. The 1st Respondent merely deponed that she is a person of means hence capable to refund decretal sum. However, ORIGINAL: DO NOT REMOVE FROM FILE she failed to provide tangible evidence to prove that financial capability. In the absence of credible evidence establishing the 1st Respondents financial ability, I am afraid that the appellant’s fears appear justified in the circumstances. I am convinced that the appellants have proved that they would suffer substantial loss if the order for stay of execution is denied. 9. The final condition is the provision for security for the due performance of the decree. The appellants have expressly stated that they are willing and ready to deposit the entire decretal sum in an interest earning account in the joint names of advocates and or firms of advocates appearing in Civil Appeal No. E231 of 2025 - Ruling Page 5

page 5 of 6

this appeal. This court is convinced that the appellant’s offer is sufficient and reasonable. 10. In the end, the application for stay is allowed, giving rise to issuance of the following orders: (i) An order for stay of execution of the decree of the trial court in Nakuru CMCC No. 780 of 2018 is granted pending appeal on condition that the appellants deposit the principal sum of Ksh130,750 in an interest earning account in the joint names of the advocates and or firms of advocates appearing in this appeal within 30 days from the date thereof. (ii) In default, the orders for stay of execution of the decree shall automatically lapse and the Respondents will be at liberty to execute to recover the decretal sum. ORIGINAL: DO NOT REMOVE FROM FILE (iii) Costs of the application to abide the outcome of the appeal. Dated, signed and delivered this 2nd day of June, 2026 at Nakuru. J. K. SERGON JUDGE In presence of: C/A Jamleck/Rutoh Miss Atieno for Appellant N/A for the Respondent Civil Appeal No. E231 of 2025 - Ruling Page 6

page 6 of 6