Stay of Execution Pending Appeal in Kenya: Evidence, Security and Urgent Steps

Filing an appeal does not automatically stop the successful party from executing the decree. A judgment creditor may still attach property, pursue a bank account, obtain possession or take another authorised step unless the court grants a stay. The applicant therefore needs more than a notice of appeal and a statement that the intended appeal has merit.

A useful stay application is built around the actual decree, the threatened execution and the loss that cannot fairly be repaired if the appeal later succeeds. It is filed promptly, proposes realistic security and preserves the respondent’s benefit of the judgment without making the appeal pointless. The correct test and court depend on whether the application is before the court appealed from, the first appellate court or the Court of Appeal.

Read the signed order and execution record first

Obtain the judgment, extracted decree or order, certificate of costs if relevant, notice of entry of judgment, warrants, proclamation, eviction notice and correspondence from the auctioneer or decree-holder. Confirm the date of delivery and whether the court granted a short informal stay immediately afterwards. A client may describe every post-judgment demand as “execution,” but the affidavit must identify the legal step actually threatened or already taken.

Separate a positive order from a negative one. A money award, order to deliver property, eviction order or command to perform an act creates an obligation capable of execution. A mere dismissal normally does not require performance beyond costs and may be incapable of stay. In Kimani v Equity Bank Kenya Limited [2025] KEHC 8146, the High Court discussed the established principle that a negative order ordinarily has nothing to stay. Asking to stay a dismissal without identifying an executable consequence wastes the urgent window.

Also determine whether execution is complete. A court cannot meaningfully suspend a transfer, payment or eviction that has already occurred without a separate legal basis for restoration or interim protection. Obtain registry entries, auction records, payment confirmations or possession evidence rather than assuming the status from a telephone report.

Choose the correct jurisdiction and procedural foundation

Order 42 rule 6 of the Civil Procedure Rules is the main provision for stay pending a civil appeal in the High Court and courts applying the Civil Procedure Rules. Rule 6(1) states that an appeal or second appeal does not itself operate as a stay. The court appealed from may order stay for sufficient cause, and the appellate court may consider the application even if the lower court refused it.

Apply first to the court that issued the decree where that is procedurally appropriate and time permits. Rule 6(5) permits an informal application immediately after delivery of judgment or ruling. That brief protection can create time to obtain proceedings, lodge the appeal and prepare a supported motion. It should not become an excuse to wait until auction or eviction day.

The Court of Appeal exercises a different, original jurisdiction under rule 5(2)(b) of the Court of Appeal Rules, 2022 after a notice of appeal has been lodged. The familiar inquiry there is whether the intended appeal is arguable and whether it would be rendered nugatory without relief. Do not copy a High Court motion referring only to substantial loss and security into the Court of Appeal; the jurisdiction, threshold and record are distinct.

Move before the risk becomes an accomplished fact

Order 42 rule 6(2) requires an application without unreasonable delay. There is no universal number of safe days. The court examines the judgment date, when the applicant obtained the order, steps taken to appeal, negotiations, registry difficulties and the execution timetable. An unexplained quiet period becomes especially damaging after a proclamation or notice to vacate.

Create a chronology with documents: judgment delivered; certified copy requested; memorandum or notice of appeal filed; decree extracted; demand received; auctioneer instructed; application filed. If delay resulted from illness, missing proceedings, attempted consent or another concrete event, prove it. A generic statement that the advocate was “awaiting instructions” may not justify exposing the decree-holder to indefinite delay.

Urgency does not permit misleading the court. If interim relief is sought without notice, disclose payments, prior applications, undertakings, appeal steps and any execution already completed. A material omission may lead to discharge of the order and costs even where the underlying appeal raises a real issue.

Show substantial loss with facts, not the ordinary pain of losing

Substantial loss is the central High Court question. Execution is the normal consequence of a valid judgment, so the possibility that money or property will be taken is not enough by itself. Explain what would make reversal after a successful appeal impracticable, seriously prejudicial or incapable of adequate repair.

For a money decree, address repayment risk with care. The applicant should identify the amount, the respondent’s known means, unsuccessful inquiries and the factual basis for believing repayment would be difficult. Once a reasonable concern is raised, the evidential response may shift in practical terms because the respondent knows their resources. But a bare allegation that every individual or small company is unable to refund is neither fair nor persuasive.

Land and possession disputes call for different evidence. Exhibit the title, current occupation, developments, tenancy, proposed transfer, subdivision, eviction arrangements or third-party transaction that would change the subject matter. In business disputes, show the effect of attachment on specific operating assets or licences, not simply that payment will inconvenience cash flow. Family and succession orders may require protection designed around occupation, minors or estate preservation rather than a cash deposit alone.

Recent decisions continue to apply the three statutory conditions. In Kalume v Mnjala [2026] KEHC 4356, the court considered whether the applicant had met Order 42 rule 6(2). Mwangi v Macharia [2025] KEHC 3787 likewise records the need to demonstrate substantial loss, absence of undue delay and security. The evidence must be tailored to the decree rather than assembled from stock phrases.

Offer security that protects performance of the eventual decree

Security is not a punishment or an admission that the appeal will fail. It protects due performance of the decree or order that may ultimately bind the appellant. The court decides the form and amount, but an applicant improves credibility by making a concrete proposal and showing an ability to comply within a stated period.

For a money decree, possible structures include payment of an undisputed portion, deposit in court, a joint interest-earning account, a bank guarantee or another reliable instrument. The proposal should identify the amount, account control, deposit period and treatment of interest. A personal promise from the judgment debtor may add little where the decree itself remains unpaid.

Security should correspond to the dispute. Where the appeal concerns possession or title, the court may combine an undertaking not to transfer or alter the land with financial security for mesne profits, rent or costs. A company seeking to protect equipment should supply valuation and ownership evidence and may propose security that does not unnecessarily close the business. The respondent may seek terms preventing asset dissipation while the appeal proceeds.

Do not offer security that cannot be delivered. In Kanyi v Kimani [2025] KEHC 5434, stay was conditioned on deposit of the decretal sum in a joint interest-earning account and timely filing of the record of appeal, with an automatic consequence for non-compliance. Conditional stay is only as useful as the applicant’s ability to meet the deadline.

Prepare an affidavit that connects proof to each requested order

The supporting affidavit should be sworn by a person with knowledge of the judgment, assets and threatened execution. It should exhibit the judgment and decree, appeal document, execution notices, evidence of the subject matter, the chronology, proposed security and facts showing substantial loss. Financial assertions may require bank records, audited accounts, asset searches or valuation material; do not attach confidential records that add volume without proving the point.

The memorandum of appeal should identify genuine errors without arguing the entire appeal in the stay motion. Before the High Court, arguability alone does not replace the conditions in rule 6(2). Before the Court of Appeal, however, the applicant must show at least one arguable ground and explain how success would be hollow if the challenged act occurs. Okul v Ondieki [2022] KECA 702 describes rule 5(2)(b) as an independent discretionary jurisdiction and cautions against final findings at the interlocutory stage.

Draft relief narrowly. Identify the decree or paragraphs to be stayed, duration, proposed security and preservation terms. If only part of a judgment is appealed, a total stay may be excessive. A partial payment or limited stay can protect the appeal while allowing the successful party to enjoy the undisputed part.

Account for special execution situations

Where attachment has begun, include the auctioneer and relevant dates in the factual record, but do not assume a stay automatically invalidates earlier lawful steps or fees. Seek directions on release, storage and costs. For a garnishee process, identify its stage: an interim order, examination or final order can affect what remains capable of suspension. The garnishee proceedings guide explains that execution route.

If the decree is against government, execution is governed by public-law procedures and ordinary attachment assumptions may be wrong. If the underlying matter concerns taxation, employment, land, procurement or another specialist statute, verify the tribunal or court’s particular stay powers, appellate pathway and deadlines rather than treating Order 42 as the only possible authority.

An appeal also differs from review and setting aside. A party who says a default judgment was entered without service may need an application to set it aside; a party alleging an apparent error or new evidence may consider review. Filing several inconsistent applications without explaining their relationship can weaken urgency and produce jurisdiction objections.

Comply immediately and prosecute the appeal

After the ruling, extract the order and calendar every condition. Confirm the deposit, guarantee, joint-account documents, record-of-appeal deadline and mention date. Send proof of compliance to the other side and place it on the court file. If the ordered form of security becomes objectively impossible, return to court before the deadline; unilateral substitution is risky.

A stay is temporary protection, not permission to abandon the appeal. Request proceedings, prepare the record, serve documents and seek directions promptly. The respondent may apply to discharge a stay where the appellant fails to comply or prosecute. Preserve the asset and follow any restriction against sale, construction, withdrawal or change of possession.

For an urgent assessment, provide the judgment and decree, appeal documents, all execution notices, proof of current ownership or possession, a dated chronology, evidence of the threatened loss and a realistic security proposal. A Kenyan appellate advocate can identify the correct court and test, seek immediate limited protection where justified and prepare the evidence needed for a stay that will survive inter partes scrutiny.