Civil Appellate Division v Augustine Netto Orinda

lodged an appeal against the judgment of the subordinate court which appeal raises arguable issues. The Appellants also contend that the Respondent's financial means are unknown, and that unless stay is granted the Appellants stand to suffer substantial loss should the decretal sum be paid out and the appeal subsequently succeed. The Appellants further contend that the application was filed without unreasonable delay and that security for due performance of the decree has already been provided through the deposit of Kshs. 860,000/= in a joint interest earning account pursuant to previous court orders. 3. The application is opposed by the Respondent through a Replying Affidavit sworn on 3rd November 2025 and written submissions filed thereafter. 4. The application was canvassed by way of written submissions which I have considered. The Appellants’ Submissions 5. The Appellants submit that the application satisfies the requirements set out under Order 42 Rule 6(2) of the Civil Procedure Rules. 6. They argue that the Respondent’s financial position is unknown and there is a real risk that should the decretal sum be paid out and the appeal succeed, recovery of the money may be impossible. 7. They further argue that the application was filed promptly, less than one month after delivery of the impugned judgment and that they have already furnished security HCCA E1002/2025 2

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by depositing Kshs. 860,000/= in a joint account held by the advocates for the parties. They rely on the decision in Hamisi Juma Mbaya vs. Amakecho Mbaya [2018] eKLR, where the court restated the conditions for grant of stay pending appeal. The Respondent’s Submissions 8. The Respondent opposes the application and submits that it does not satisfy the threshold for grant of stay. 9. The Respondent contends that the application is speculative and premature because no execution process has been commenced and further, that the nature of substantial loss has not been demonstrated, 10. It is submitted that the mere allegation that the Respondent may not be capable of refunding the decretal sum is insufficient and that the law recognizes the successful litigant’s right to enjoy the fruits of a judgment, 11. The Respondent relies on the decisions in Kenya Shell Ltd vs. Benjamin Karuga Kibiru & Another [1986] KLR 410 where the Court emphasized that substantial loss is the cornerstone for the grant of stay and that a stay should not be granted merely because an appeal has been filed. Reference is also made to Nicholas Mutuku Mwasuna vs. Patricia Mueni Kilonzo [2022] eKLR where the Court held that the mere allegation that a decree-holder is not a person of means does not automatically justify a stay of execution, and Machira t/a Machira & Co. Advocates v East African Standard HCCA E1002/2025 3

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(No. 2) [2002] KLR 63 where the Court emphasized that a successful litigant should not ordinarily be denied the fruits of his judgment. 12. The Respondent therefore urges the Court to dismiss the application with costs or, in the alternative, order payment of at least half of the decretal sum pending appeal. Analysis and Determination 13. Having considered the Motion, the affidavits on record, and the rival submissions, I find that the main the issue for determination is whether the Appellants have satisfied the conditions for grant of stay of execution pending appeal. 14. Order 42 Rule 6(2) of the Civil Procedure Rules provides that: “No order for stay of execution shall be made unless— (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.” 15. The Court must therefore consider whether substantial loss has been demonstrated, whether the HCCA E1002/2025 4

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application was filed without unreasonable delay and whether adequate security has been provided. 16. On substantial loss, the Appellants submitted that the Respondent's financial means are unknown and that recovery of the decretal sum may be difficult if the appeal succeeds. 17. I note that while the Appellants have not placed before the Court concrete evidence of the Respondent's inability to refund the decretal amount, the law recognizes that where such inability is alleged and a reasonable apprehension raised, the evidential burden may shift to the decree-holder to demonstrate means. 18. I note that the decree herein arises from a personal injury claim and involves a monetary award. If the decretal sum is paid out in full and the appeal succeeds, recovery may become difficult and the appeal may be rendered nugatory. 19. I am therefore satisfied that the Appellants have demonstrated sufficient apprehension of substantial loss to warrant intervention by the Court. 20. On whether the application was filed without unreasonable delay, I note that judgment was delivered on 5th September 2025 and the application filed less than one month later on 2nd October 2025. I find that there was no unreasonable delay. 21. On provision of security, the Appellants deponed, and it has not been controverted, that Kshs. 860,000/= had HCCA E1002/2025 5

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already been deposited in a joint interest earning account pursuant to earlier court orders. 22.Security serves to balance the competing rights of the parties by safeguarding the Respondent against prejudice arising from delay in enjoying the fruits of the judgment. This Court is satisfied that security has already been furnished. 23.The Court is alive to the principle stated in Machira t/a Machira & Co. Advocates vs. East African Standard (No. 2) [2002] KLR 63 that a successful litigant should not be deprived of the fruits of a judgment without good cause. The court must equally ensure that an appeal, if ultimately successful, is not rendered nugatory. 24.The objective is therefore to strike a balance between the Appellants’ constitutional right of appeal and the Respondent’s right to enjoy the fruits of his judgment. 25.In the circumstances of this case, and considering that security has already been deposited, the interests of justice would be best served by preserving the decretal amount pending determination of the appeal. 26.Accordingly, I find that the Notice of Motion dated 2nd October 2025 is merited and I hereby allow it in the following terms: a) There shall be a stay of execution of the Judgment and Decree issued in Milimani CMCC No. E11800 of 2023 delivered on 5th September 2025 pending the hearing and determination of Civil Appeal No. E1002 of 2025. HCCA E1002/2025 6

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b) The sum of Kshs. 860,000/= already deposited in the joint interest earning account in the names of the advocates for the parties shall remain deposited therein pending the hearing and determination of the appeal or until further orders of the Court. c) The Appellants shall take all necessary steps to facilitate preparation and filing of the record of appeal within sixty (60) days from the date hereof. d) The appeal shall thereafter be listed for directions on priority basis. e) Costs of the application shall abide the outcome of the appeal. It is so ordered. DATED, SIGNED AND DELIVERED AT NAIROBI THIS 4TH DAY OF JUNE 2026. W A OKWANY JUDGE In the presence of: Momanyi for Appellant/applicant Mwasia for Musyoki for Respondent Abdirizak – Court Assistant HCCA E1002/2025 7

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