Simon Maina Mwangi T/A Ngware Body Works & 1 other v Wesley Kipngetich Too

d) That this Honourable Court be pleased to grant any further orders it may deem fit in the circumstances. e) That the costs of this application be in the cause. 2. The application is supported by a supporting affidavit sworn on even date by the applicant. The Respondent, Wesley Kipngetich Too, has opposed the application through a replying affidavit sworn on 10th June 2026. 3. The Applicant is dissatisfied with the judgement and has lodged an appeal. He contends that the appeal raises serious and arguable issues of law, including whether the trial Adjudicator had jurisdiction to entertain a matter where the subject matter's value exceeded the court's pecuniary limits. He argues that he will suffer substantial loss if execution proceeds. The Applicant has offered to deposit half the decretal sum into court as security. He maintains that the application was filed timeously. 4. The Respondent argues that the Applicant has failed to demonstrate sufficient cause for a stay. The Applicant’s claim of substantial loss is speculative, unfounded, and unsupported by evidence. He asserts that he is entitled to the fruits of a lawfully obtained judgement. 5. The Respondent contends that the offer to deposit half the decretal sum is inadequate and prejudicial. The Respondent proposes that if this Court is inclined to grant the stay, the Applicant should be ordered to deposit the entire decretal sum into a joint interest-earning account. 2|Page

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6. The sole issue for determination is whether the Applicant has met the conditions for the grant of a stay of execution pending appeal under Order 42 Rule 6(2) of the Civil Procedure Rules. 7. Order 42 Rule 6(2) of the Civil Procedure Rules provides: "No order for stay of execution shall be made under subrule (1) 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." 8. The Court of Appeal in Halai & Another v Thorton & Turpin (1963) Ltd [1990] KLR 365 held that the High Court's discretion to order a stay of execution is fettered by three conditions: firstly, the applicant must establish a sufficient cause; secondly, the court must be satisfied that substantial loss would ensue from a refusal to grant stay; and thirdly, the applicant must furnish security. The application must of course be made without unreasonable delay. 9. I will now consider each of these conditions in turn. 10. On timeliness, the judgement was delivered on 26 th March 2026. The Applicant filed the present application on 27 th April 2026. I note that the 30-day stay granted by the trial court lapsed on 26th April 2026. The application was filed one day 3|Page

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after the lapse of the stay granted by the trial court. While there has been a minor delay of one day, I find that the delay is not inordinate and does not prejudice the Respondent. This condition is satisfied. 11. On substantial loss, the Applicant has merely stated in paragraph 6 of his Supporting Affidavit that "if execution is to proceed, I will suffer substantial loss and stand condemned unheard rendering the appeal." He has not particularized or provide evidence to demonstrate the nature of the alleged loss. The Applicant has not explained why the Respondent would be unable to refund the decretal sum if the appeal succeeds, provided any evidence of his financial circumstances, shown that his appeal would be rendered nugatory if the stay is not granted, or demonstrated that the Respondent is a man of straw. 12. The law is well settled. In James Wangalwa & Another v Agnes Naliaka Cheseto [2012] eKLR, the Court held: "No doubt, in law, the fact that the process of execution has been put in motion, or is likely to be put in motion, by itself, does not amount to substantial loss. Even when execution has been levied and completed, that is to say, the attached properties have been sold, as is the case here, does not in itself amount to substantial loss under Order 42 Rule 6 of the CPR. This is so because execution is a lawful process. The applicant must establish other factors which show that the execution will create a state of affairs that will irreparably affect or negate the 4|Page

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very essential core of the Applicant as the successful party in the appeal. This is what substantial loss would entail...” 13. The Court of Appeal in Kenya Shell Limited v Benjamin Karuga Kibiru & Another [1986] eKLR emphasized that substantial loss in its various forms is the cornerstone of the jurisdiction to grant a stay, and that it is not sufficient by merely stating that a sum of money is a lot of money and the applicant would suffer loss if the money is paid. The applicant should show the damages it would suffer if the order for stay is not granted. 14. Similarly, in Machira T/A Machira & Co Advocates v East African Standard (No 2) [2002] KLR 63, the court held that it is not enough to merely state that substantial loss will result. The kind of loss likely to be sustained must be specified and details or particulars thereof must be given. Where no pecuniary or tangible loss is shown to the satisfaction of the court, the court will not grant a stay merely on the ground of annoyance to feelings or remote contingencies. The court stated: "In attempting to convince a court that substantial loss is likely to be suffered... the applicant is under a duty to do more than merely repeating to the court words of the relevant statutory rule or general words used in some judgment or ruling of a court in a decided case cited as a judicial precedent to guide. It is not enough merely to state that substantial loss will result, or that the appeal if successful will be rendered nugatory. That will not do. If the applicant cites, as a ground, substantial loss, the 5|Page

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kind of loss likely to be sustained must be specified, details or particulars thereof must be given, and the conscience of the court, looking at what will happen unless a suspension or stay is ordered, must be satisfied that such loss will really ensue... Where no pecuniary or tangible loss is shown to the satisfaction of the court, the court will not grant a stay merely on the ground of annoyance to feelings. Indeed, remote contingencies would not warrant the court’s interference with the ordinary course of justice and the process of law." 15. While I acknowledge that the Applicant has raised a jurisdictional challenge and other grounds in his Memorandum of Appeal, this alone does not automatically entitle him to a stay. He must still demonstrate that he would suffer substantial loss. He has failed to do so. The Applicant's claim of substantial loss is therefore speculative and unsubstantiated. This condition is not satisfied. 16.On security, the Applicant has offered to deposit half the decretal sum as security. While this demonstrates some good faith, security is only one of the three conditions. Since the Applicant has failed to prove substantial loss, the offer of security cannot cure that deficiency. 17. Consequently, the Notice of Motion dated 27 th April 2026 is hereby dismissed. The costs of this application to abide the outcome of the appeal. Dated, signed and delivered at Nakuru this 13th day of August, 2026. 6|Page

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J. K. SERGON JUDGE In the presence of: Rutoh C/A Chaungu holding brief for Mwangi for Appellant Kirui holding brief for Motanya for the Respondent 7|Page

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