Peter Kariuki Nderitu v Gerald Kihara Waithaka

points of law and fact. The Appellant in their application claims that without urgent intervention and interim stay orders from the Court, execution could occur, inflicting substantial and Appellant/Applicant irreparable and financial rendering the loss pending on the appeal entirely nugatory and academic. 2) The Application is brought under Sections 1A, 1B & 3A of the Civil Procedure Act, Order 42, rule 6 of the Civil Procedure Rules, 2010 and all other enabling provisions of the law. The Applicant has approached the Court for: a) Spent. b) THAT this Honourable Court be pleased to grant an order of stay of execution of the Judgment and Decree delivered on 5/12/2025 in Ruiru MCELC/E206/2024 pending the hearing and determination of this Application. c) THAT this Honourable Court be pleased to grant an order of stay of execution of the Judgment and Decree delivered on 5/12/2025 in Ruiru MCELC/E206/2024 pending the hearing and determination of the Appeal herein. d) THAT the costs of this Application be provided for. 3) The Application is based on the grounds that the Applicant has stated and supported by the annexed affidavit of PETER KARIUKI NDERITU sworn of even date. 4) The Application is grounded on the Appellant/Applicant’s dissatisfaction with the Trial Court’s Judgment delivered on ELCLA NO. E029 OF 2026 2|Page

page 2 of 13

5/12/2025, which according to the Applicant faultily made adverse findings of fraud and misrepresentation that are now strongly contested in an appeal with high prospects of success. The Applicant contends that unless a stay of execution is granted, the Respondent will execute for the decretal sum, causing substantial financial loss to the Applicant and rendering the pending appeal purely academic and nugatory due to the risk of non-recovery should the appeal succeed. 5) Furthermore, the Applicant affirms that the application has been lodged without unreasonable delay, expresses full willingness to furnish such security for the due performance of the decree as the Court may order, and asserts that granting the orders aligns with the interests of justice and fairness. 6) He deposes that there is an adverse Judgment delivered against him on 5/12/2025, by the Trial Court in Ruiru MCELC/E206/2024, a copy of which is annexed as "PKN1". That being aggrieved by the whole of the said Judgment and Decree, the Applicant lodged an appeal challenging the Trial Court's findings, as evidenced by the Memorandum of Appeal annexed as "PKN2". The Applicant contends that the appeal raises arguable points of law and fact, notably regarding whether fraud was established to the required legal standard, whether the burden of proof was improperly shifted, whether the Applicant was a bona fide purchaser for ELCLA NO. E029 OF 2026 3|Page

page 3 of 13

value without notice, and whether the award of damages amounted to unjust enrichment of the Respondent. 7) He further averred that execution proceedings have already been initiated by the Respondent, who served the Applicant with an Application for Execution seeking his committal to civil jail for failing to satisfy the decree, annexed as "PKN3". In furtherance of the execution, the Applicant was also served with a Notice to Show Cause why he should not be arrested and committed to civil jail, annexed as "PKN4". 8) The Applicant maintains that unless an order for stay of execution is granted, he will suffer substantial loss by being forced to satisfy the decretal sum prior to the determination of the appeal. He notes that recovering the money from the Respondent should the appeal succeed would be difficult, thereby rendering the pending appeal nugatory and academic. The Applicant confirms that the application has been brought without unreasonable delay and affirms his willingness to comply with any reasonable conditions regarding security for the due performance of the decree as the Court may impose. Consequently, he prays that it is just, fair, and in the interest of justice for the stay orders to be granted. 9) The Respondent filed a Replying Affidavit sworn by the said Respondent on 3/06/2026. He contends at the outset that the Application is misconceived, incompetent, bad in law, and a gross abuse of the Court process. He states that the Trial Court delivered Judgment in his favour on 5/12/2025, ELCLA NO. E029 OF 2026 4|Page

page 4 of 13

after a full hearing on both facts and law, and reiterates the established principle that the mere filing of an appeal does not automatically operate as a stay of execution or entitle a unsuccessful litigant to stay orders as a matter of right. 10) The Respondent asserts that the intended appeal lacks exceptional circumstances and is primarily calculated to frustrate his right to enjoy the fruits of a lawful Judgment. On the advice of his advocates on record, the Respondent highlights that although the Applicant uploaded the Memorandum of Appeal onto the Court’s Case Tracking System (CTS) electronic filing platform on 5/01/2026, and an assessment invoice of Kshs. 1,550/= was generated in favour of M/S Macharia, Gaitho & Murigu Advocates LLP annexed as "EXHIBIT-1" the Applicant neglected to pay the filing fees until 4/03/2026, nearly two months later, as evidenced by the receipt annexed as "EXHIBIT-2". He contends that the Applicant took no steps to prosecute or regularize the appeal until execution proceedings were initiated and a Notice to Show Cause was issued, demonstrating a lack of diligence and good faith that disentitles the Applicant to equitable relief. 11) With regard to the requirement of substantial loss under Order 42, Rule 6 of the Civil Procedure Rules, the Respondent states that the Applicant has offered mere speculation. The Deponent affirms that he is a businessman of means with identifiable assets, fully capable of refunding the decretal sum should the appeal succeed. He further submits that a ELCLA NO. E029 OF 2026 5|Page

page 5 of 13

Notice to Show Cause issued in the ordinary course of execution does not amount to substantial loss, and notes that the Applicant has failed to offer any tangible security for the due performance of the decree, merely offering a vague willingness to abide by Court terms. 12) Consequently, the Respondent prays that the Application be dismissed with costs. In the alternative and without prejudice, he urges that should the Court be inclined to grant a stay, it should be strictly conditional upon the Applicant depositing the entire decretal sum, together with accrued interest and costs, into a joint interest-earning account in the names of both advocates within a specified timeframe, failing which the stay order should automatically lapse. 13) Additionally, the Respondent in opposing the Applicant's Notice of Motion filed Grounds of Opposition dated 11/06/2026 on the threshold grounds that the underlying Appeal is incompetent, incurably defective, and liable to be struck out for having been instituted out of time without leave of the Court. Following the delivery of Judgment in Ruiru MCELC/E206/2024 on 5/12/2025, the statutory timeline for lodging an appeal lapsed before the Appeal was properly filed and perfected through the payment of the requisite Court fees. 14) That, although an assessment invoice for filing fees was generated on the Court's CTS platform on 5/01/2026, the Appellant failed to settle the prescribed fees until 4/03/2026, ELCLA NO. E029 OF 2026 6|Page

page 6 of 13

rendering the purported Appeal unperfected and improperly before the Court throughout that period. In the absence of any application for or grant of leave to appeal out of time, the Respondent contends that the entire Appeal, together with all consequential applications including the current Notice of Motion for stay of execution, is incurably defective, incompetent, and fit for striking out with costs. 15) The Application was canvassed by way of written submissions. Key Issues for Determination a) Whether an appeal uploaded within time but whose filing fees were paid nearly two months later, without prior extension of time or leave of Court, is competent and properly before the Court to sustain an application for stay of execution. b) Whether, assuming the appeal is competent, the Applicant has satisfied the statutory conditions for the grant of a stay of execution pending appeal, namely demonstrating substantial loss, absence of unreasonable delay, and the provision of security for the due performance of the decree. Analysis and Determination 16) The first and overarching threshold issue touches on the competence of the underlying Appeal itself. A Court’s appellate jurisdiction is strictly statutory, and the existence of a valid, competent appeal is an absolute condition precedent to the exercise of judicial discretion under Order ELCLA NO. E029 OF 2026 7|Page

page 7 of 13

42 Rule 6 of the Civil Procedure Rules, 2010. The undisputed facts disclose that Judgment in Ruiru MCELC/E206/2024 was delivered on 5/12/2025. Although the Memorandum of Appeal was uploaded to the Court’s CTS portal on 5/01/2026 and an assessment invoice of Kshs. 1,550/= was generated, the prescribed filing fees were only paid on 4/03/2026, nearly two months later. 17) In Kenyan jurisprudence and across common law jurisdictions, the statutory requirement to pay Court filing fees is not a mere regulatory technicality; it is a mandatory prerequisite that validates the filing of any judicial process. Black's Law Dictionary (11th ed. 2019) defines filing as the delivery of a legal document to the proper officer for keeping on file, which in procedural law requires compliance with all statutory prerequisites, including the mandatory tender of Court fees. Similarly, Halsbury’s Laws of England (5th Vol. 11, Civil Procedure) observes that where the law prescribes a condition precedent such as the payment of assessed Court fees for the lodging of an appeal, non-compliance renders the process incomplete in law, as a Court document cannot be deemed duly lodged until the fee attached by law is satisfied. 18) This fundamental rule has been affirmed by the Supreme Court of Kenya in Nicholas Kiptoo Arap Korir Salat v. Independent Electoral and Boundaries Commission & 7 Others [2014] eKLR, where the apex Court stated: ELCLA NO. E029 OF 2026 8|Page

page 8 of 13

"A document is filed when it is delivered to the registry and the requisite filing fees paid. A document presented to the registry without payment of the requisite Court fees, where fees are payable, is not a document filed in Court until such fees are paid." 19) The Apex Court underscored that filing is a composite act comprising presentation, assessment, and payment of Court fees. Consequently, the Appellant's Memorandum of Appeal was only completed and recognized in law on 4/03/2026 when the Court fees were paid. 20) Substantive jurisdictional prerequisites such as the mandatory payment of statutory Court filing fees generally cannot be entirely cured or washed away as a mere procedural technicality under Article 159(2)(d) of the Constitution of Kenya, though Courts maintain narrow discretionary powers to allow late payment or regularisation under specific enabling procedural rules. 21) Now, because the statutory timeline for lodging the appeal had long expired by 4/03/2026, the appeal was filed out of time without leave of Court. In Nicholas Kiptoo Arap Korir Salat v. IEBC (supra), the Supreme Court emphasized: "Deviations from statutory time-lines should not be treated lightly. Extension of time is not a right of a party. It is an equitable remedy that is only available to a deserving party at the discretion of ELCLA NO. E029 OF 2026 9|Page

page 9 of 13

the Court... time is of the essence and must be adhered to." 22) The Privy Council in the landmark case of Ratnam v. Cumarasamy [1965] 1 WLR 8 similarly held that rules of Court fixing time limits are made to be observed, and where an appeal is incompetent for being out of time without leave, all collateral applications premised on that dead proceeding must fail. 23) Even if this Court were to assume arguendo that the Appeal was properly before it, the Application fails to meet the three mandatory conditions set out under Order 42 Rule 6(2) of the Civil Procedure Rules, 2010. Order 42 Rule 6(2) mandates that no order for stay of execution shall be made unless the Court is satisfied that substantial loss may result to the Applicant, that the application was made without unreasonable delay, and that security as ordered by the Court has been given. 24) Regarding substantial loss, the jurisprudence is well settled. In Butt v. Rent Restriction Tribunal [1982] KLR 417, the Court of Appeal laid down the classic guiding rule: "The discretion to grant or refuse a stay of execution is a fettered one .... the power to grant a stay should be exercised so as to prevent the appeal, if nugatory, successful, but the from being rendered Applicant must establish substantial loss." ELCLA NO. E029 OF 2026 10 | P a g e

page 10 of 13

25) Substantial loss in money decrees requires factual evidence demonstrating that the Respondent is a person of no means who would be incapable of refunding the decretal sum if the appeal succeeded. In National Industrial Credit Bank Ltd v. Aquila Holdings Ltd [2007] eKLR, the Court held that execution of a money decree does not per se constitute substantial loss; the Applicant must demonstrate the financial indigence of the decree-holder. In the present case, the Applicant offered bare assertions of potential loss without submitting any evidence. Conversely, the Respondent deponed that he is a businessman of means with known assets capable of refunding the decretal sum. A mere Notice to Show Cause issued under order of execution does not establish substantial loss in law. 26) On the second condition unreasonable delay the facts demonstrate that while Judgment was rendered on 5/12/2025, the Applicant took no steps to pay Court fees or activate the stay application until execution proceedings were instituted against him in March 2026, leading to the present application dated 14/05/2026. This unexplained delay of over five months from the date of Judgment disentitles the Applicant to equitable relief. In the Case of Global Tours and Travels Ltd NRB W.U Cause No.43 of 2000 (UR) Ringera J held: "As I understand the law whether or not to grant a stay of proceedings or further proceedings on a decree or order appealed from is a matter of ELCLA NO. E029 OF 2026 11 | P a g e

page 11 of 13

judicial discretion to be exercised in the interests of justice ...... the sole question is whether it is in the interests of justice to order a stay of proceedings and if it is, on what terms it should be granted. In deciding whether or not to order a stay, the Court should essentially weigh the pros and cons of granting or not granting the order. And in considering those matters, it should bear in mind such factors as the need for expeditious disposal of cases, the prima facie merits of the intended appeal, in the sense of not whether it will probably succeed or not but whether it is an arguable one, the scarcity and optimum maximization of judicial time and whether the application has been brought expeditiously. " (Emphasis added) 27) Finally, regarding security for the due performance of the decree under Order 42 Rule 6(2)(b), the Applicant merely stated a generic willingness to abide by Court terms without providing or proposing any tangible security. In Arun C. Sharma v. Kenya Commercial Bank Limited [2004] eKLR, the Court held that an Applicant for stay must offer concrete security to guarantee the decree-holder that the fruits of Judgment will remain available. 28) Consequently, both on the threshold incompetence of the unperfected Appeal and on the failure to satisfy the ELCLA NO. E029 OF 2026 12 | P a g e

page 12 of 13

statutory prerequisites of Order 42 Rule 6, the Application lacks merit and must be dismissed. 29) I therefore issue the following orders: a) The Applicant's Notice of Motion dated 14/05/2026 be and is hereby dismissed. b) The interim orders of stay of execution, if any, granted or existing prior to this Ruling are hereby vacated. c) The costs of this Application are awarded to the Respondent. d) Mention for disposal of Appeal on 14/10/2026. Orders Accordingly. DATED, SIGNED AND DELIVERED AT THIKA VIA MICROSOFT TEAM ON THIS 21ST DAY OF SEPTEMBER 2026. ............................. MOGENI J JUDGE In the presence of: Mr. Macharia for the Appellant/Applicant Respondent - Absent Mr. Melita - Court Assistant ............................. MOGENI J JUDGE ELCLA NO. E029 OF 2026 13 | P a g e

page 13 of 13