County Government of Kirinyaga & another v Njagi (Appeal E034 of 2024) [2025] KEELRC 255 (KLR)
The bottom line
#A Kenyan court allowed a stay of execution because the person who won the judgment couldn't prove he could repay the money if the appeal succeeded.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the application meets the legal threshold for granting stay of execution pending appeal
Key legal issues
#Whether the delay of one and a half months in filing the stay application was unreasonable
The delay was not unreasonable since the appeal had been filed one month before the application and no execution was imminent.
The impugned judgment was delivered on 15th October 2024 and the application filed on 4th December 2024, a delay of one and a half months. The court noted the appeal had been lodged a month before the application and that no execution was imminent, and therefore held the delay was not unreasonable under Order 42 Rule 6(2)(a).
Whether substantial loss was demonstrated
Substantial loss was established because the respondent did not discharge the evidential burden of proving his capacity to repay the decretal sum should the appeal succeed.
The applicants alleged the respondent had left employment and could not repay the decretal sum of Kshs.5,700,000. The respondent filed no affidavit to controvert this, merely attacking the allegation as unproved. Applying the National Industrial Credit Bank v Wasike precedent, the evidential burden shifted to the respondent, who failed to discharge it. Substantial loss was therefore demonstrated.
What security for due performance of the decree should be ordered
The applicants' offered security of Kshs.5,000,000 deposited in court was adequate, given the respondent had not demonstrated capacity to refund any portion of the decretal sum.
The court weighed the right to be heard on appeal against the right to enjoy the fruits of judgment. Considering that the respondent had not shown capacity to refund any portion of the decretal sum, the court accepted the applicants' enhanced offer of Kshs.5,000,000 to be deposited in court within 45 days, rather than the full decretal sum or a bank guarantee as the respondent demanded.
Legal principles established
#- Once an applicant expresses that a respondent would be unable to pay back the decretal sum, the evidential burden shifts to the respondent to show what resources he has, since that is a matter peculiarly within his knowledge.
Court orders
#- 1.Stay of execution of the judgment and decree of Honourable M.W. Mutuku (Ms) CM dated 15th October 2024 granted pending appeal, on condition that the applicants deposit Kshs.5,000,000 in court as security for due performance of the decree within 45 days of the ruling
- 2.In default of compliance with the condition, the stay order shall lapse automatically
- 3.Costs of the motion shall abide the outcome of the appeal
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Chief Magistrate's Court (M.W. Mutuku, CM)
- Jurisdiction invoked
- Order 42 Rule 6 of the Civil Procedure Rules
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
The purpose of ordering for deposits of security for due performance of the decree cannot be over emphasized. It is mainly to strike a balance between the right to be heard on appeal, and the right to enjoy the fruit of the judgment immediately the appeal fails to succeed.
I am satisfied that the applicant has met the legal threshold for grant of stay of execution of the impugned judgment pending appeal herein.
In default to comply with the said condition, the stay order shall lapse automatically. Costs of the motion shall abide the outcome of the appeal.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "County Government of Kirinyaga & another v Njagi (Appeal E034 of 2024) [2025] KEELRC 255 (KLR)", Case Analysis (2025). Notice of Motion dated 3rd December 2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/255/eng@2025-02-04
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.