High Court 11053 of 2026

against the ruling and order delivered by the lower court on 25th September, 2025, which appeal is said to be competent and to have appreciable chances of success. 3. The Appellant contends that unless execution of the impugned ruling and order is stayed, the intended execution may render the appeal nugatory. It is further apprehended that the Respondent may proceed with execution of the decree at any time before the appeal is heard and determined. 4. The Appellant therefore asserts that it is just and fair that execution of the impugned ruling and order be stayed pending the hearing and determination of the appeal. 5. The Appellant states that she is willing to furnish such security for the due performance of any decree or order as the court may direct. 6. In the alternative, it is contended that the Respondent is already in possession of registered charges over the suit properties as security for the facilities advanced to the deceased, which securities are sufficient to cover any sums that may ultimately be found due and therefore constitute reasonable security within the meaning of Order 42 Rule 6(2) (b) of the Civil Procedure Rules. 2|Page

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7. The application is supported by the affidavit of Prisca Ogutu, the Appellant herein, sworn on 26th September, 2025, in which she deposes that she is the administrator of the estate of Joseph Ogutu Oliewo (deceased), the Respondent’s former customer, and is therefore competent and conversant with the proceedings herein. 8. She states that the deceased operated Account No. 007**********03 at the Respondent’s Kisumu Branch and, by a letter of offer dated 19th July, 2013, was advanced financial facilities amounting to Ksh.3,000,000/-. The facilities were secured by, inter alia, a corporate guarantee and indemnity, a first legal charge and a further legal charge over L.R. No. Kisumu/Pandpieri/2277 and a first legal charge over L.R. No. Kisumu Municipality Block 4/638, together with the relevant title documents. 9. The Appellant further deposes that the deceased was required to maintain comprehensive insurance policies over the charged properties, with the Respondent’s interest noted therein. Subsequently, by a letter of offer dated 23rd June, 2014, the Respondent advanced the deceased an overdraft facility of Ksh.2,000,000/-, with the deceased acknowledging an outstanding indebtedness of Ksh.3,116,364.75/-. 10. She further deposes that by a further letter of offer dated 5th August 2014, the Respondent offered a loan facility of 3|Page

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Ksh.4,000,000/-, with the borrower and guarantor acknowledging indebtedness of Ksh.5,015,484.65/- as at 4th August, 2014. 11. The Appellant deposes that the deceased faithfully serviced the facilities through varying monthly instalments ranging between Ksh.39,000/- and Ksh.150,000/- until his death on 15th March, 2017. 12. She states that the deceased’s family was unaware of the alleged outstanding loan balance as it had not received any correspondence from the Respondent until 5 th June, 2018, when the Respondent, through WestMinister Commercial Auctioneers, notified her of its intention to sell the deceased’s charged properties on account of alleged default. 13. The Appellant further deposes that she thereafter instituted the suit by a plaint dated 10th July, 2018, seeking, inter alia, a declaration that the Respondent had acted illegally by failing to issue a statutory notice, a permanent injunction restraining the sale or auction of L.R. No. Kisumu Municipality Block 4/638 and an order for accounts to determine the exact amount, if any, owing to the Respondent. However, by a judgement delivered on 20th March, 2025, the trial court dismissed the suit with costs to the Respondent. 4|Page

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14. Being aggrieved by the judgement, the Appellant states that she filed a motion dated 22nd May, 2025 before the trial court, seeking, among other orders, an injunction restraining the Respondent from advertising, auctioning, disposing of or interfering with the charged properties; stay of execution of the judgement; review, variation or setting aside of the judgement; a declaration that the loan secured by the deceased had been fully repaid; and leave for her advocates to come on record. 15. The Appellant deposes that the Respondent had commenced execution proceedings, and refers to the letter dated 5 th June, 2018 and the warrants of sale issued in relation to the charged properties. 16. She states that, following delivery of the judgement, she obtained complete bank statements from the Respondent and, upon examining the deceased’s bank statements up to the year 2024, promptly filed the application for review of the judgement. The application was subsequently determined by a ruling delivered on 25th September, 2025. 17. The Appellant further deposes that, being dissatisfied with the said ruling, she promptly lodged an appeal to this court against the entire decision in Kisumu HCCA No. 206 of 2025. She expresses the belief that the appeal has appreciable chances of success and that, unless execution of the impugned 5|Page

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ruling and order is stayed, the appeal will be rendered nugatory. 18. The Appellant further states that the Respondent will suffer no real prejudice if the application is allowed, as she is willing to furnish such security as may be directed pending the hearing and determination of the appeal. 19. The application is opposed by the Respondent, who to that end filed a replying affidavit sworn by its legal officer Andrew Muchina on 11th November, 2025 in which the deponent contends that the application is misconceived and frivolous, as the Appellant has not demonstrated any special circumstances warranting the intervention of the court. 20. He states that he has been advised by the Respondent’s advocates that the court’s jurisdiction to grant stay pending appeal is subject to the requirements of establishing sufficient cause, demonstrating that substantial loss may result unless the order is made, furnishing security for the due performance of the decree or order and making the application without unreasonable delay. 21. The Respondent maintains that, having regard to the contents of the replying affidavit filed in opposition to the Appellant’s earlier application for review, together with the contents of the present affidavit, the Appellant has failed to 6|Page

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satisfy the threshold under Order 42 Rule 6 of the Civil Procedure Rules. 22. It is further contended that the Appellant has not demonstrated that she has an arguable appeal which would be rendered nugatory in the absence of stay, particularly as any loss she may suffer is capable of being compensated by an award of damages. A copy of the Respondent’s replying affidavit filed in opposition to the dismissed application for review in Kisumu MCCC No. 326 of 2018 is annexed. 23. The deponent further states that the Appellant has not demonstrated that the Respondent would be incapable of compensating her for any loss that she may suffer. He contends that the Respondent holds a registered charge over the Appellant’s property and that, the Appellant having defaulted in repaying the loan, the Respondent was entitled to take preparatory steps towards the realization of the security in order to recover funds advanced from its depositors’ funds. 24. The Respondent further contends that the loss alleged by the Appellant is purely financial and is therefore compensable by damages. It consequently denies that the appeal would be rendered nugatory if stay is not granted. 25. The deponent adds that, if stay is granted, interest on the outstanding loan would continue to accrue, thereby increasing 7|Page

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the amount due, which stood at Kshs. 3,586,179.30/- as at 4th June, 2018, exclusive of accumulated interest and costs. 26. In the alternative, and in view of the Appellant’s stated willingness to furnish security, the Respondent proposes that the court directs her to deposit the outstanding amount either in court or in a joint interest-earning account within such period as the court may determine, pending the hearing and determination of the appeal. 27. The Respondent consequently prays that the application for stay pending appeal be dismissed with costs. 28. The Appellant filed a further affidavit sworn on 14 th March, 2026 in which she deposes that the Respondent’s affidavit omits or inaccurately presents material facts and is fundamentally defective for allegedly not having been sworn, dated or commissioned in accordance with Section 5 of the Oaths and Statutory Declarations Act. 29. She further contends that the document bears neither the signature nor the stamp of a Commissioner for Oaths and therefore lacks evidentiary value and ought not to be relied upon by the Court. 30. The Appellant deposes that she is the widow of the late Joseph Ogutu Oliewo, who obtained financial facilities from 8|Page

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the Respondent secured by legal charges over Kisumu/Pandpieri/2277 and Kisumu Municipality/Block 4/638. 31. She states that the deceased consistently serviced the facilities during his lifetime and that, according to the bank statements obtained, the Respondent deducted a total of Ksh.3,892,922.30/- from his account towards repayment before his death on 15th March, 2017. 32. She further deposes that the loan documentation and charge instruments provided for Mortgage Finance Insurance or Credit Life Insurance, intended to settle the outstanding loan balance upon the death of the borrower. Despite the deceased’s death, however, the Respondent allegedly continued to debit the loan account with a further sum of Ksh.416,574.05/- while the insurance claim process was ongoing and without, according to the Appellant, properly reconciling the account or engaging the estate. 33. She contends that the Respondent ought to have restricted or frozen the deceased’s accounts upon notification of his death in order to prevent further unauthorised transactions and irregular debits. 34. The Appellant further deposes that the mortgage insurer subsequently processed the claim and made payments of Ksh.1,005,575.16/- and Ksh.1,838,908.80/- on 28th April, 2023 9|Page

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towards liquidation of the loan account. She contends that, when considered together with the repayments made during the deceased’s lifetime and the subsequent deductions from the account, the insurance payments substantially reduced, if not fully settled, the outstanding loan balance. 35. The Appellant maintains that, notwithstanding the insurance settlement, the Respondent has continued to assert that sums remain outstanding without providing a clear and reconciled statement demonstrating the precise amount allegedly due or explaining the effect of the insurance payments on the loan account. 36. The Appellant further deposes that, despite the substantial repayments and insurance settlement, the Respondent instructed Westminster Commercial Auctioneers to commence the realization of the charged properties and auction notices were issued threatening the sale of the two properties. She states that her advocates consequently requested the auctioneers to halt the process pending clarification and reconciliation of the loan account and the determination of the intended appeal. 37. The Appellant contends that the Respondent already holds two charged titles whose combined value substantially exceeds any amount that may ultimately be found due. She states that her advocates proposed to the Respondent’s 10 | P a g e

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advocates that the existing securities be treated as sufficient security pending the hearing and determination of the appeal, but that the Respondent has not meaningfully addressed the proposal. 38. She further contends that the Respondent’s Replying Affidavit does not controvert the existence of the securities, the substantial repayments made before the deceased’s death, the post-death deductions or the insurance payments credited to the loan account, but merely asserts that the statutory power of sale has arisen without providing a proper reconciliation of the account. 39. The Appellant maintains that the material now available to the estate demonstrates that a substantial portion of the principal loan amount had been repaid by the deceased during his lifetime and through the insurance settlement following his death. She consequently contends that any amount allegedly outstanding, if at all, relates substantially to disputed interest and bank charges whose computation has neither been clearly reconciled nor adequately explained. 40. The Appellant therefore maintains that the substantive dispute concerns contested interest calculations rather than an unpaid principal sum, which issue forms part of the matters to be determined in the pending appeal. 11 | P a g e

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41. The Appellant reiterates that the Respondent is already in possession of the two certificates of title and has received a total of Ksh.7,153,980.31/- from repayments made by the deceased, herself and the insurer, which she asserts is sufficient to safeguard any amount that may ultimately be found due. She therefore argues that requiring additional security would be unnecessary. 42. Finally, she deposes that unless the court intervenes to preserve the charged properties pending the appeal, the Respondent is likely to proceed with their sale, thereby rendering the appeal nugatory and occasioning irreparable loss to the estate of the deceased. 43. The application was canvassed by brief oral arguments whereby the parties largely adopted the positions in their respective affidavits. 44. The Appellant relied on the authorities and provisions of law set out in her submissions in support of the application. She referred to Order 42 Rule 6 of the Civil Procedure Rules, which empowers the court to grant a stay of execution pending appeal where sufficient cause is shown, substantial loss may result to the applicant unless the order is made, the application is made without unreasonable delay and such security as the court may order for the due performance of the decree is furnished. 12 | P a g e

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45. The Appellant submitted that the court retains a discretion as to the nature and form of security to be furnished and that the overriding consideration is the preservation of the rights of both parties pending the determination of the appeal. 46. The Appellant relied on Orieny & another v National Bank of Kenya [2023] KEHC 101 (KLR), where the High Court held that although provision of security is one of the requirements for the grant of stay, the nature of the subject matter and the security already held by the Respondent may render the imposition of further security unnecessary. 47. In that case, the court found that the land in dispute was already charged to the Respondent and that, in the event the appeal failed, the Respondent could realize the security and recover the sums due. The Court consequently found it unnecessary to order the deposit of additional security and granted stay pending the filing, hearing and determination of the intended appeal. 48. The Appellant further relied on Ririani v Adan & another [2025] KEELC 8108 (KLR), in which the High Court reiterated that the issue of security is discretionary and that it is for the court to determine what constitutes sufficient security in the circumstances of each case. 13 | P a g e

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49. The court held that, although a party may make a proposal regarding security, the ultimate determination rests with the court. In view of the fact that the suit property was already charged to the 2nd Defendant, the court declined to impose any further security and granted stay of execution pending the hearing and determination of the appeal. 50. The Appellant also relied on Malonza v ABSA Bank Kenya Plc & another [2025] KEHC 14311 (KLR), where the High Court recognized its jurisdiction to grant an injunction pending appeal and, having regard to the fact that the Respondent held the title to the suit property as security for a loan, declined to impose any further security while granting stay. 51. The Appellant further relied on Nduhiu Gitahi v Warugongo [1988] KLR 621, as cited with approval in Juma v Orwa & another (Legal representative of the Estate of Charles Ochieng) [2026] KEHC 427 (KLR), where the Court of Appeal held that the purpose of security in an application for stay pending appeal is to adequately protect the opposing party while imposing the least disadvantage on the party furnishing it. 52. The court stated that security may take different forms, including a bank guarantee or payment into court, and that, so 14 | P a g e

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long as it is adequate, the particular form of security is immaterial. 53. The court further emphasized that, in applications for stay pending appeal, the court is required to preserve the rights of both parties and to hold the ring evenly without prejudicing the appeal. 54. The Appellant also relied on the decision of the Supreme Court of Uganda in Goodman Agencies Ltd v Attorney General & another, Constitutional Application No. 1 of 2012 [2014] UGSC 124, where the court cautioned against imposing financial conditions that would effectively deny an Appellant access to appellate justice. 55. The court held that access to a final appellate court should not depend on the depth of an Appellant’s pocket and that financial barriers which prevent a litigant from having an appeal heard on its merits are inconsistent with the right of access to justice. 56. Finally, the Appellant relied on Westmont Holdings SDN BHD v Central Bank of Kenya & 2 others [2023] KESC 11 (KLR), in which the Supreme Court held that an order for security may, in appropriate circumstances, stifle proceedings and completely lock an Appellant out of the doors of justice. 15 | P a g e

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57. The court faulted an order that had brought the Appellant’s litigation journey to an end before the merits of the appeal could be heard, holding that such an order denied the Appellant an opportunity to vindicate its legal rights. 58. Against that legal framework, the Appellant submitted that the two charged properties already held by the Respondent constitute adequate security for any amount that may ultimately be found due. She therefore urged the court to find that requiring her to furnish additional security would be unnecessary and disproportionate, and to grant the stay sought on the basis that the existing securities adequately protect the Respondent’s interests pending the hearing and determination of the appeal. 59. The Respondent relied on the decision in Westmont Holdings SDN BHD v Central Bank of Kenya & 2 others (supra), particularly the Supreme Court’s discussion on the purpose and rationale of security for costs. The Respondent submitted that the Supreme Court recognized that the requirement for security serves to balance the constitutional objectives of access to justice, fair hearing and the expeditious and proportionate administration of justice under Articles 48, 50 and 159 of the Constitution. 60. The Respondent relied on the court’s reasoning that security is intended to protect a successful Respondent 16 | P a g e

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against the risk that a costs order in its favour may ultimately be rendered ineffective by the impecuniosity of the opposing party. 61. The Respondent further submitted that an order for security must take into account the competing interests involved, including the Applicant’s access to the court system, the protection of a successful Respondent from unrecoverable litigation costs and the conservation of judicial resources. 62. The Respondent also relied on the proposition that security for costs may discourage frivolous claims and encourage parties to conduct litigation in a manner proportionate to the matters in issue. 63. The Respondent therefore urged the court, in determining the appropriate security to be furnished pending appeal, to balance the Appellant’s right of access to justice and pursuit of the appeal against the need to protect the Respondent from the risk of being unable to recover any sums that may ultimately become due. 64. The Respondent consequently maintained that, if stay is granted, the Appellant should be directed to deposit the outstanding amount either in court or in a joint interestearning account as adequate security pending the hearing and determination of the appeal. 17 | P a g e

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65. Having considered the notice of motion, the affidavits filed by the parties, the respective submissions and the authorities cited, I am of the view that the following issues arise for determination: a. Whether the application for stay of execution is competent, having regard to the nature of the judgement and ruling appealed from and the act which the Appellant seeks to restrain. b. If the application is competent, whether the Appellant has satisfied the requirements for the grant of stay pending appeal under Order 42 Rule 6 of the Civil Procedure Rules. c. What orders should be made on the application, including the issue of costs. 66. I have considered the record and the nature of the orders which the Appellant seeks to challenge in the intended appeal. In my view, the application falls to be determined on the three issues identified above. 67. The first issue for determination is whether the application for stay of execution is competent, having regard to the nature of the judgement and ruling appealed from and the act which the Appellant seeks to restrain. 18 | P a g e

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68. The starting point is the nature of the relief sought. The Appellant seeks an order of stay of execution of the judgement delivered on 20th March, 2025 and the ruling/order delivered/issued on 25th September, 2025 pending the hearing and determination of the appeal. 69. The material placed before the court, however, shows that the judgement dismissed the Appellant’s suit with costs to the Respondent, while the subsequent ruling dismissed the Appellant’s application for review. The orders challenged by the Appellant were, in substance, orders of dismissal. 70. Order 42 Rule 6(1) of the Civil Procedure Rules provides that no appeal shall operate as a stay of execution or proceedings under a decree or order appealed from, except in so far as the court appealed from may order. The jurisdiction under that provision suspension of the is therefore execution concerned with the of a decree or order. It presupposes the existence of a decree or an order which is capable of execution. 71. A distinction must therefore be drawn between a positive order which commands a party to do something, or imposes upon a party an obligation capable of enforcement, and a negative order which merely dismisses a suit or application and thereby declines to grant the relief sought. The latter does 19 | P a g e

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not, without more, require any act to be performed by either party. 72. In Co-operative Bank of Kenya Limited v Banking Insurance & Finance Union (Kenya) [2015] eKLR, the Court of Appeal, citing Raymond M. Omboga v Austine Pyan Maranga, Kisii HCCA No. 15 of 2010, stated: “An order for stay of execution (pending appeal) is ordinarily an interim order which seeks to delay the performance of positive obligations that are set out in a decree as a result of a judgement. ... a negative order is one that is incapable of execution, and thus, incapable of being stayed.” 73. The Court further observed that: “The order dismissing the application is in the nature of a negative order and is incapable of stay of execution, save perhaps, for costs... Where there is no positive order made in favour of the Respondent which is capable of execution, there can be no stay of execution of such an order.” 74. The same principle was applied in Kanwal Sarjit Singh Dhiman v Keshavji Jivraj Shah [2008] eKLR, where the Court of Appeal held that an order which merely dismissed an application with costs was a negative order incapable of execution, save in respect of costs. The Court stated that the order did not order any party “to do anything or refrain from 20 | P a g e

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doing anything or to pay any sum” and was therefore incapable of being stayed. 75. More recently, the same position was reiterated in Hassan & another v Abdullahi & 2 others; Cargo & Clearing Limited (Interested Party) [2025] KEHC 8677 (KLR), where the Court stated: “A negative order, such as a dismissal, is not capable of being stayed.” 76. The court went on to hold that a dismissal of an application, where the court did not direct any party to do or refrain from doing anything, was incapable of execution and that “there is nothing to stay.” 77. Similarly, in Melly v Njaya [2026] KEELC 499 (KLR), the court held that where the judgement merely dismissed the suit and did not order any party to do anything, refrain from doing anything or pay any sum, there were no positive orders flowing from the judgement capable of being stayed. 78. The court consequently held that the question of substantial loss did not arise and that considering the conditions for stay in such circumstances would amount to an academic exercise. 21 | P a g e

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79. I respectfully adopt that reasoning. The judgement delivered on 20th March, 2025 dismissed the Appellant’s suit. It did not direct the Respondent to sell the charged properties. It did not issue a decree commanding the Appellant to pay any specified sum to the Respondent. Nor did the ruling delivered on 25th September, 2025, as described in the material before the court, impose any positive obligation capable of execution against the Appellant. 80. The effect of the dismissal was simply that the reliefs sought by the Appellant were not granted. The legal position therefore reverted to what it was before the Appellant approached the court for those reliefs. 81. As the Court of Appeal explained in the passage quoted in Co-operative Bank of Kenya Limited v Banking Insurance & Finance Union (Kenya) (supra), a dismissal means that the Applicant “stays in the situation he was in before coming to court.” There is consequently no positive order of the court which can be suspended or stayed. 82. The position is not altered by the fact that the Respondent may have taken steps towards realization of the securities. The threatened sale of the charged properties is not, on the material before the court, execution of the judgement delivered on 20th March, 2025 or of the ruling delivered on 25 th September, 2025. It is an act which the Respondent claims to 22 | P a g e

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be entitled to undertake pursuant to its rights as chargee under the charge instruments and the applicable law. 83. In other words, the Respondent’s alleged intention to exercise its statutory power of sale does not flow from, and is not an execution of, the negative orders of dismissal. The court cannot, through an order of stay of execution, stay an act which is not execution of the decree or order appealed from. 84. I therefore find that the Appellant has sought to stay orders which are incapable of execution. The application for stay of execution is consequently misconceived and incompetent to that extent. 85. The Appellant’s apprehension that the Respondent may proceed with the sale of the charged properties is, however, not without a possible legal remedy. Order 42 Rule 6(6) of the Civil Procedure Rules expressly provides that, notwithstanding subrule (1), the High Court, in the exercise of its appellate jurisdiction, has power to grant a temporary injunction on such terms as it thinks just, provided that the procedure for instituting an appeal from the subordinate court or tribunal has been complied with. 86. The existence of that jurisdiction is distinct from the jurisdiction to grant a stay of execution. The two remedies address 23 | P a g e different circumstances. A stay suspends the

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execution of a decree or order capable of execution. An injunction, on the other hand, may be granted to preserve the subject matter of an appeal and prevent an act which may render the appeal nugatory. 87. In Madhupaper International Limited v Kerr [1985] KECA 116 (KLR), the Court of Appeal recognized the court’s jurisdiction to grant an injunction pending appeal and stated that the purpose of such an order is to ensure that an appeal, if successful, is not rendered nugatory. The court emphasized that the discretion is to be exercised judicially and not arbitrarily and that an injunction should not be granted where the appeal is frivolous or where the injunction would inflict greater hardship than it would avoid. 88. The same principle has been applied in the context of Order 42 Rule 6(6). In Nyongesa v Onyango [2025] KEHC 11852 (KLR), the court observed that the rule specifically empowers the High Court, in the exercise of its appellate jurisdiction, to grant a temporary injunction on such terms as it considers just. The court further stated that the jurisdiction is directed to the question whether an injunctive order ought to issue pending determination of the appeal. 89. In the present case, however, the Appellant did not seek an injunction pending appeal. Her substantive prayer is for a stay of execution of the judgement and ruling. The court must 24 | P a g e

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determine the application as presented and cannot simply convert a prayer for stay of execution into a substantially different prayer for an injunction restraining the Respondent from exercising its statutory power of sale pending the determination of the appeal. 90. This is particularly so because the two remedies are founded upon different legal considerations. The question whether a negative order is capable of being stayed is distinct from the question whether the subject matter of an appeal should be preserved by an injunction. To grant an injunction when none has been sought would, in my view, amount to granting a substantive relief which the Respondent was not called upon to answer in the terms in which it is now being considered. 91. I therefore find that the application, insofar as it seeks a stay of execution of the judgement dated 20th March, 2025 and the ruling dated 25th September, 2025, is not competent. The orders appealed from are negative orders of dismissal and there is no positive order issued by the court capable of being stayed. 92. Having reached that persuasion, it follows that the application seeking the grant of stay pending appeal under Order 42 Rule 6 of the Civil Procedure Rules cannot succeed. 25 | P a g e

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93. What orders should then be made on the application, including the issue of costs? The conclusion I have reached is that the application is incompetent and without merit and is for dismissal. 94. On costs, the general rule under Section 27 of the Civil Procedure Act is that costs follow the event, although the court retains a discretion to determine by whom and to what extent they should be paid. The Respondent has successfully opposed the application and there is no sufficient reason shown for departing from the general rule. 95. Accordingly, the notice of motion dated 26th September, 2025 is dismissed with costs to the Respondent. 96. The appeal will be mentioned on 8th October, 2026 for directions. DELIVERED (virtually), DATED & SIGNED this 20th day of July, 2026. JOE M. OMIDO JUDGE FOR APPELLANT: Ms. Makori. FOR RESPONDENT: Mr. Maganga. 26 | P a g e

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COURT ASSISTANTS: Mr. Ngoge & Mr. Juma. 27 | P a g e

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