https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8410

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT NAIROBI** **CIVIL APPELLATE DIVISION** **CIVIL APPEAL NO. E886 OF 2025** **BENARD AKAMA...............................................APPELLANT/APPLICANT** VERSUS **PETER MANYURU..........................................................RESPONDENT** **RULING** 1. Judgment was on 22nd April 2025 delivered in Civil Suit No. E4588 of 2023 in favour of the Respondent for Kshs. 4,500,000 together with costs and interest after which the said court granted a thirty (30) day stay of execution. 2. The Applicant did not file an appeal within the statutory period but on 20th August 2025 filed an application before this Court seeking leave to appeal out of time and that the Memorandum of Appeal annexed thereto to be deemed duly filed. 3. On 23rd October 2025, the Applicant filed the present application seeking stay of execution and release of Motor Vehicle Registration No. KDN 012X contending that despite having deposited Kshs.1,500,000 as security pursuant to an order of the lower court, the Respondent proceeded with execution through attachment and seizure of his motor vehicle. 4. The Respondent, on the other hand, opposed the application and contended that execution was lawfully undertaken after extraction of a decree and issuance of warrants and that there was no appeal or stay order in force at the time of attachment. 5. The application is supported by the Applicant’s affidavit and written submissions and is opposed through the Respondent’s Replying Affidavit and written submissions. **The Applicant’s Submissions** 1. The Applicant submitted that the application satisfies the requirements of Order 42 Rule 6(2) of the Civil Procedure Rules. 2. On substantial loss, the Applicant submitted that Motor Vehicle KDN 012X constitutes the substratum of the appeal and that if sold, the appeal will be rendered nugatory. 3. Reliance was placed on ***Butt vs. Rent Restriction Tribunal* [1979] eKLR**, ***RWW vs. EKW* [2019] eKLR, *Antoine Ndiaye vs. African Virtual University* [2015] eKLR** and ***Esther Wanjiru vs. Jackline Arege* [2014] eKLR** for the proposition that stay should issue where substantial loss is likely to occur and where refusal would render an appeal nugatory. 4. The Applicant submitted that the instant application was filed without unreasonable delay as the impugned ruling authorizing execution was delivered on 22nd October 2025 and the present application was filed promptly thereafter. 5. It was submitted that the Applicant has already deposited Kshs.1,500,000 pursuant to the lower court’s order and that the same constitutes adequate security. 6. It was submitted that the execution was unlawful as no decree was extracted, no proper application for exaction filed, no notice to show cause issued and no valid proclamation served. 7. According to the Applicant, the attachment was therefore null and void thereby necessitating the preservation of the subject matter of the appeal through an order for release of the subject motor vehicle. **The Respondent’s Submissions** 1. The Respondent opposed the application and argued that judgment having been entered in the lower court, any change of advocates required compliance with Order 9 Rule 9 of the Civil Procedure Rules (CPR). 2. It was argued that Rashid Law Advocates came on record without leave of the Court and without consent from the previous advocates. Reliance was placed on ***Kabiru & Another vs. Amboso* [2024] KEHC 14287 (KLR)** to emphasize the mandatory nature of compliance with Order 9 Rule 9 of the CPR. 3. The Respondent’s case was that the Applicant does not deserve leave or stay as judgment was delivered on 22nd April 2025 which means that the statutory period for appeal expired on or about 22nd May 2025 yet the application for leave to appeal out of time was not filed until 20th August 2025. 4. It was submitted that the delay of approximately three months is inordinate and unexplained. Reference was made to the decision in ***Maclean & Another vs. Kiago & Another* (Misc. Civil Application E070 of 2023) [2025] KEHC 3572** and Section 79G of the Civil Procedure Act (CPA) for the principles governing extension of time. 5. The Respondent further submitted that execution was lawfully commenced after extraction of a decree, issuance of warrants and proclamation and attachment by licensed auctioneers. 6. According to the Respondent, the vehicle was attached on 30th May 2025 when no appeal or stay orders existed. 7. The Respondent argued that the Applicant has unsuccessfully challenged the attachment in other proceedings and that the present application merely seeks to delay enjoyment of the fruits of judgment. **Issues for Determination** 1. Having considered the pleadings and submissions, the Court finds that the following issues arise for determination: 2. ***Whether the application is incompetent for non-compliance with Order 9 Rule 9 of the Civil Procedure Rules.*** 3. ***Whether the Applicant has satisfied the conditions for grant of stay under Order 42 Rule 6 of the Civil Procedure Rules.*** 4. ***Whether this Court should issue preservatory and release orders in respect of Motor Vehicle KDN 012X.*** **Analysis and Determination** 1. Order 9 Rule 9 of the Civil Procedure Rules provides that where judgment has been entered, a change of advocates shall not be effected without leave of the Court or consent between outgoing and incoming advocates. 2. The Respondent contended that Rashid Law Advocates came on record after judgment without obtaining leave of court. In ***Tobias M. Wafubwa vs. Ben Butali* [2017] eKLR** the Court of Appeal clarified that appellate proceedings constitute separate proceedings and parties are generally entitled to engage counsel of their choice on appeal without first obtaining leave under Order 9 Rule 9 of the CPR. 3. The present proceedings are before the High Court in its appellate jurisdiction and the impugned application is anchored on intended appellate proceedings. 4. I am therefore not persuaded that failure to obtain leave under Order 9 Rule 9 of the CPR renders the application incompetent. 5. On the prayer for stay of execution, Order 42 Rule 6(2) of the Civil Procedure Rules requires an applicant to demonstrate Substantial loss, absence of unreasonable delay and provision of security. 6. On substantial loss, I note that the Applicant's motor vehicle has already been attached and remains in custody pending sale. I am of the view that should the subject vehicle be sold before determination of the intended appeal, recovery may prove difficult and the intended appeal may be rendered purely an academic exercise. In ***Butt vs. Rent Restriction Tribunal* [1979] eKLR**, the Court of Appeal held that stay should be granted where refusal would render an appeal nugatory. I am therefore satisfied that substantial loss has been demonstrated. 7. On whether there was unreasonable delay, I note that the impugned judgment was delivered on 22nd April 2025 and the application for leave to appeal out of time was filed on 20th August 2025. The present application was filed on 23rd October 2025. I find that while the delay is not insignificant, the Applicant had been actively pursuing various proceedings arising from the execution process. 8. It is my finding that even though the explanation for the delay is not entirely satisfactory, the delay is not so inordinate as to deny the Court discretion altogether. 9. On security for the due performance of the decree, I note that the Applicant has already deposited Kshs.1,500,000 pursuant to an order of the lower court. I find that that the deposit demonstrates good faith. However, considering that the decretal sum exceeds Kshs.4,500,000 exclusive of costs and interest, further security is necessary to balance the parties’ interests. 10. On the issue of release of the motor vehicle, the Applicant urged the Court to declare the attachment unlawful and order immediate release of the motor vehicle. 11. The Respondent maintained that execution was carried out pursuant to a decree and warrants lawfully issued by the trial court. 12. The material presently before this Court does not conclusively establish that execution was undertaken without lawful process. 13. I am therefore unable, at this interlocutory stage, to make a final determination nullifying the execution process. Be that as it may, preservation of the attached vehicle is necessary so that the intended appeal is not rendered nugatory. 14. I find that the ends of justice would be served by preserving the vehicle pending determination of the appeal rather than ordering its immediate release. 15. Having regard to the findings and observations that I have already made in this ruling, I find that the instant application is merited and I therefore allow it in the following terms: - 16. ***There shall be a stay of execution of the judgment and decree delivered on 22nd April 2025 pending hearing and determination of the appeal.*** 17. ***The stay is granted on condition that:*** 1. ***The Kshs.1,500,000 already deposited shall remain in court as security; and*** 2. ***The Applicant shall deposit a further Kshs.500,000 in an interest earning joint account in the names of counsel for the parties within thirty (30) days.*** 18. ***Pending determination of the appeal, Motor Vehicle Registration No. KDN 012X shall be preserved and shall not be sold, transferred, alienated or otherwise disposed of.*** 19. ***The auctioneers shall continue to hold the vehicle as custodians pending compliance with Order No. b above.*** 20. ***Upon compliance with Order No. b, the said motor vehicle shall be released to the Applicant pending determination of the appeal.*** 21. ***In default of compliance within thirty (30) days, the stay herein shall automatically lapse.*** 22. ***Costs of the application shall abide the outcome of the appeal.*** It is so ordered. **DATED, SIGNED AND DELIVERED AT NAIROBI THIS 11TH DAY OF JUNE 2026.** **W. A. OKWANY** **JUDGE** **In the presence of:** Ooko H. for Appellant/Applicant No appearance for Respondent Abdirizak – Court Assistant