Amica Savings & Credit Cooperative Society Limited v Mwahu & 2 others (Civil Appeal E040 of 2025) [2025] KEHC 16241 (KLR) (12 November 2025) (Ruling)
Neutral citation:
[2025] KEHC 16241 (KLR)
Republic of Kenya
Civil Appeal E040 of 2025
TW Ouya, J
November 12, 2025
Between
Amica Savings & Credit Cooperative Society Limited
Appellant
and
Stephen Mungai Mwahu
1st Respondent
Margaret Kahumbu Mwahu
2nd Respondent
Fortune Auctioneers
3rd Respondent
Ruling
1.By a Notice of Motion dated 25th March 2025, the Applicant herein substantially seeks this honourable court to stay the proceedings Kangema Magistrates Court in MCCC E048/2024 pending hearing and determination of this application and appeal.
2.The Application was supported by grounds on the face of the record and the affidavit of Robert Mbau, for the Applicant herein of even date. It is averred that a loan of kshs.1,000,000 was advanced to the 2nd Respondent guaranteed by the 1st Respondent by offering his property known as Loc/ Muthithi/1746 which was charged as security. That the 2nd respondent defaulted in payment of the loan and the Appellant initiated the process of exercising statutory power of sale of the suit property when the 1st and 2nd Respondents filed suit at the trial court seeking to restrain the appellant.
3.It is averred further that the Appellant filed a Memorandum of Appearance simultaneously with a notice of Prelimianry Objection to the effect that the trial court lacked jurisdiction to handle the matter by virtue of section 76 of the Cooperative Societies Act. However, on 24th March 2025 the trial magistrate delivered a ruling in respect of the Prelimianry Objection dismissing it and holding that it had jurisdiction to try the matter.
4.The Appellant has appealed against the said Ruling and is apprehensive that if the proceedings in the trial court are not stayed, the appeal will be rendered nugatory.
5.The 1st and 2nd Respondents filed grounds of opposition to the effect that the notice of motion application should be dismissed in limine as it is highly prejudicial to the1st and 2nd Respondents to affair hearing and an affront to their right to expeditious hearing. That it is a delaying tactic made in bad faith to frustrate the 1st Respondent’s efforts to his propriety rights and is an abuse of the process of the court.
6.The Applicant avers further that she stands to suffer irreparable loss if the stay he is seeking is not granted.
7.In response to the Application, the Respondent relied on the Replying Affidavit sworn on 16th September 2024 by Loise Mary Muthoni Mbogo, the 1st Respondent herein. The Respondent deposed that the application has failed to meet the required threshold for granting the orders sought in that the Appellant has not demonstrated that substantial loss may result unless stay of execution is granted nor has she provided any security as a condition for granting stay.
8.The Respondents contend that the are in a position to refund the decretal amount in the event the intended appeal succeeds. It is the respondent’s position that the application is unmerited and should be dismissed. However, should the court be inclined to grant the same then the Applicant should be ordered to deposit the entire decretal amount in an interest earning escrow account.
9.This application was dispensed with through written submissions by both parties. The Applicant’s position is premised on the argument that this application does not meet the threshold for grant of an order for stay as provided under order 42 rule 6 of the Civil Procedure rules namely: the likelihood of substantial loss and unreasonable delay and provision for security for performance. Reliance was placed upon the authorities of National Industrial Credit Bank Limited v Aquinas Francis Wasike & Another (UR) C. A. 238/2005; Gianfranco Mamenthi & Another v Africa Merchant Assurance Company and Issa Mbaya (Suing as the Legal Administrator of the Estate of the late Leonard Waiganjo Karanja)2024 KEHC 1280 (KLR).
10.The Applicant further urged the court to use its discretionary power to balance out the interests of the successful litigant (Respondent) and the Applicant’s unfettered right to file an appeal in making orders for depositing of security.
11.The Respondent made reference to order 42 rule 6 of the Civil procedure rules and argues that she has met the required threshold for grant of the orders sought. Reliance was placed on the authorities of Butt v Rent Restrictions Tribunal (1979) Tropical Commodities Suppliers ltd & Others v international Credit Bank Ltd (2024) 2 EA 331; Gianfranco (supra) among others. In a nutshell, the Respondent argues that the Applicant has not demonstrated that she will suffer substantial loss if the order for stay is not granted but concedes that the applicant has averred her willingness and ability to make deposit for security and to abide by any orders of the court.
12.I have considered the application, the supporting and replying affidavits and the submissions filed as well as the authorities relied upon. I have also considered the Prelimianry Objection raised against this application.
13.The principles guiding the grant of a stay of execution pending appeal are well settled. These principles are provided under Order 42 rule 6(2) of the Civil Procedure Rules which provides as follows:
14.In Vishram Ravji Halai vs. Thornton & Turpin Civil Application No. Nai. 15 of 1990 [1990] KLR 365, the Court of Appeal held that:
15.To the foregoing I would add that the stay may only be granted for sufficient cause and that the Court in deciding whether or not to grant the stay and that in light of the overriding objective stipulated in sections 1A and 1B of the Civil Procedure Act, the Court is no longer limited to the foregoing provisions. The courts are now enjoined to give effect to the overriding objective in the exercise of its powers under the Civil Procedure Act or in the interpretation of any of its provisions.
16.In Mbukoni Services Limited another v Mutinda Reuben Nzili 2 others Misc Application No. 77 of 2021, the court stated that:
17.The Court, in exercising its discretion, should therefore always opt for the lower rather than the higher risk of injustice. This was the position in Jason Ngumba Kagu & 2 Others vs. Intra Africa Assurance Co. Limited [2014] eKLR where it was held that:
18.Guided by the principles above I find that there is sufficient cause to grant the orders sought, that is stay of proceedings pending hearing and determination of this Application and Appeal.
19.I hereby grant the following orders:a.There will be stay of proceedings in the Lower Court pending the hearing of this appeal.b.The Applicant/Appellant to file and serve Memorandum of Appeal and submissions thereto within 30 days from the date hereof.c.Respondent to file and serve submissions on the appeal within 30 days of service.d.The interim orders issued by the lower court on 19th September 2024 shall remain intact and are not affected by the order for stay of proceedings.e.Mention for compliance will be on 15th January 2026f.That costs of this application will be in the intended appeal.
DATED, SIGNED AND DELIVERED ELECTRONICALLY THIS 12TH NOVEMBER 2025.HON. T. W. OUYAJUDGE