Jubilee Allianz General Insurance (K) Limited v Odero; Odero (Suing as Legal Administrator to the Estate Mariaan Kenzie) & 4 others (Interested Parties) (Civil Appeal E059 of 2025) [2025] KEHC 15902 (KLR) (5 November 2025) (Ruling)

Key Facts

Deceased Name

Transaction Type

Issues

• The court considered whether the Applicant's appeal was arguable and whether the stay of execution should be granted to prevent the appeal from being overtaken by events. The Applicant argued that the Respondent executed the judgment prematurely, and the court evaluated the balance between the Appellant's right to appeal and the Respondent's right to enforce the judgment.
• The Applicant contended that the Respondent failed to provide evidence of financial standing, relying on the principle that the evidential burden shifts to the Respondent to prove their capacity to pay. The court acknowledged this but required the Applicant to deposit the decretal sum into a joint account to secure the stay.
• The Applicant sought to set aside the warrants of attachment and proclamation, claiming they were issued before the 30-day stay period expired. The court found no evidence of a stay order in the lower court records, concluding the Respondent lawfully executed the decree and the Applicant's request for ex debito justiciae relief was without merit.

Holdings

• The court granted the stay of execution pending appeal on condition that the Applicant deposits the entire decretal sums into a joint interest earning account within 30 days, and ordered payment of auctioneer's charges if agreed or assessed.
• The court rejected the Applicant's prayer to set aside the proclamation ex debito justiciae, noting that there was no order for stay of execution from the trial court, and the Respondent was at liberty to execute the decree as of 26/8/2025.

Remedies

• The applicant was ordered to pay the auctioneers' charges as agreed or assessed by the court. This remedy addresses the costs incurred by Eshikoni Auctioneers related to the execution process.
• The court granted an order for stay of execution against the judgment pending the appeal. The applicant must deposit the entire decretal amount plus costs into a joint interest-earning account in the names of both counsel within 30 days from the date of the court's order. Failure to meet this condition will result in the stay lapsing and execution proceeding. This remedy was granted to preserve the rights of the appellant during the appeal process.

Legal Principles

• The court emphasized the discretion in granting stay of execution pending appeal under Order 42 Rule 6 of the Civil Procedure Rules. It highlighted that an applicant must demonstrate an arguable appeal and that the appeal would be rendered nugatory without the stay. The ruling also noted the balance between preserving the appellant's rights and the respondent's entitlement to enforce a judgment, referencing the 'overriding objective' under sections 1A and 1B of the Civil Procedure Act.
• The court stated that once an applicant expresses a reasonable fear that the respondent may not be able to pay the decretal amount, the burden shifts to the respondent to demonstrate their financial capacity. This aligns with section 112 of the Evidence Act, where the respondent must prove matters within their knowledge.

Precedent Name

• Abson Motors Limited v Nyongesa
• RWW v EKW
• National Industrial Credit Bank Ltd v Aquinas Francis Wasike & Another

Executor Name

Cited Statute

• Civil Procedure Rules, 2010
• Evidence Act
• Civil Procedure Act

Executor Appointment

Judge Name

Passage Text

• The purpose of an application for stay of execution pending appeal is to preserve the subject matter in dispute so that the rights of Appellant who is exercising the undoubted right of appeal are safeguarded and the appeal if successful is not rendered nugatory. However, in so doing, the court should weigh this right against the right of a successful litigant who should not be deprived of the fruits of his/her judgment...
• Stay of execution pending appeal is governed by Order 42 Rule 6 of the Civil Procedure Rules. It is evident from the said provision that the power to grant stay of execution pending appeal is an exercise of discretion of the court on sufficient cause being shown by the Applicant that substantial loss may result to the applicant if the orders are denied; that the application should be made without undue delay and that the court will impose such security as the court may impose for the due performance of any decree or order as may ultimately be binding on the Applicant.
• I find merit in the Appellant's application dated 27/8/2025. The same is allowed in terms of prayer No.3 on condition that the Applicant deposits the entire decretal sums in a joint interest earning account in the names of the counsels for the Applicant and the Respondent within thirty (30) days from the date hereof failing which the order of stay shall lapse.

Damages / Relief Type

• Applicant ordered to pay auctioneers' charges
• Stay of execution granted with 30-day deposit condition