https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8180

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT NAIROBI** **COMMERCIAL AND TAX DIVISION** **CIVIL APPEAL NO. 249 OF 2025** **KENNEDY AYOTI…………...….........................1ST APPELLANT/ APPLICANT** **JENNIFER SYEKONYO MWANGANGI………..2ND APPELLANT/ APPLICANT** **VERSUS** **STANDARD CHARTERED BANK KENYA LIMITED..............1ST RESPONDENT** **VALLEY AUCTIONEERS.………….…………….……………2ND RESPONDENT** **RULING** 1. This is a Ruling on an application by the Appellant. It seeks for a stay of execution as well as an injunction pending an Appeal. **Background Facts** 2. The Applicant filed the Motion dated 20th August, 2025 seeking the following orders; 1. *Spent.* 2. *THAT there be a stay of execution and/or further proceedings in Milimani CMCC/E2657/2022 and specifically a stay of the ruling/order issued on 27th July 2025 by Hon. William Lopokoiyit.* 3. *THAT there be an order of injunction restraining the Respondents, their agents, servants, and/or assigns from advertising, selling by public auction, or otherwise dealing with the Appellants' property known as Apartment No. D8 on LR No 2/125- Belmont Courts pending the hearing and determination of this appeal.* 4. *Costs of this application be in the cause.* 3. The Application was supported by the grounds on the face of it and by the Affidavit of **Kennedy Ayoti**. He stated that The Applicants filed an application dated 24th July, 2025 before the Magistrate’s Court. They sought urgent interim orders to halt the scheduled auction of the suit property. However, on 27th July, 2025, the Court declined to certify the matter as urgent. It instead fixed it for *inter partes* hearing on 23rd September, 2025. This was a date falling after the scheduled auction of 26th August, 2025. The Applicants contend that unless this Court intervenes, the auction will proceed, rendering the intended appeal nugatory and causing them irreparable loss. They further state that they have already filed a Memorandum of Appeal. That the Appeal raises arguable issues with high chances of success and. The Applicants express their willingness to comply with any conditions imposed by the Court to safeguard the Respondents’ interests. 4. The Respondents replied to the Application vide the Replying Affidavit of **Boniface Machuki** sworn on 9th September, 2025. He stated that the Application fails to meet the legal threshold for grant of stay of execution and interim reliefs under the Civil Procedure Rules. The Appellants have not demonstrated sufficient cause, likelihood of substantial loss, or provision of security. That in any event the appeal itself is not arguable as it arises from a discretionary decision. Whereas the Appellants have lodged an Appeal, they while the Appellants were in fact granted a hearing date. Further, the Appellants do not dispute obtaining the loan, charging the property, and defaulting. That they have in fact failed to provide credible evidence such as statutory notices or valuation reports to support their claims. That they have not pleaded their case with full particulars. 5. The Respondents maintained that their statutory right to realize the security has already crystallized following earlier Court decisions. That granting stay orders would unjustly deny them the fruits of judgment. Any alleged loss by the Appellants is compensable by damages, particularly given the Respondent’s financial capacity. That sentimental attachment to the charged property cannot defeat the right of sale. Additionally, the Appellants have neither provided security nor demonstrated substantial loss. This is despite their continued indebtedness and prolonged default. That therefore the Application is undeserving of the discretionary relief sought. **Issues for determination** 6. The Court has considered the Application, the response as well as the written submissions. The Court has also considered the oral highlights made by Counsel for the parties. The Court frames two issues for determination; 1. Whether *a stay order should issue.* 2. *Whether an injunction pending an appeal should issue.* **Analysis** 7. The Appellants have invoked the appellate jurisdiction of this Court and seek interlocutory orders in the meantime. 1. ***Whether a stay order should issue****.* 8. It was the Appellants’ case that they had satisfied all the conditions under **Order 42 Rule 6(2) of the Civil Procedure Rules**. They urged the Court to exercise its discretion in their favour by allowing the application. 9. In contrast, the Respondent argued that the Order in question is a negative one and therefore, incapable of being stayed. It does not occasion any loss to the Appellants, as it merely preserves the status quo prior to the Application. Additionally, the Order is a procedural decision within the Court’s discretion. It directed that the matter proceeds through the normal determination process rather than an expedited one. Consequently, there is no infringement of the Appellants’ right to a fair hearing. That established jurisprudence affirms that such negative orders cannot be stayed. 10. Did the Court issue a negative order? Having perused the Ruling, the Court noted that in particular, the Order issued by **Hon. William Lopokoiyit** on 27th July, 2025 stated as follows: *“No urgency shown, applicant to serve the respondents. Inter parties hearing on 23/9/2025”* 11. Therefore, it is apparent that the Trial Court merely directed the Appellants to serve the Respondents while declining to certify the Application as urgent. 12. What orders exactly are the Applicants seeking to stay? Service to the Respondents? It is the Court’s considered view and finding that there are no orders flowing from that ruling in respect of which a stay order can validly be granted. 13. In light of the above, the Court concurs with the Respondent that this is indeed negative order incapable of execution or being stayed. In the case of ***Western College Farts and Applied Sciences V Oranga & Others, [1976] KLR 63*** the Court stated as follows: ***“But what is there to be executed under the judgment, the subject of the intended appeal the High Court has merely dismissed the suit with costs. An execution can only be in respect of costs. ...*** ***The High Court has not ordered any of the parties to do anything or to refrain from doing anything or to pay any sum. There is nothing arising out of the High Court Judgment for this court in an application for stay to enforce or restrain by injunction.”*** 1. ***Whether an injunction pending an appeal should issue.*** 14. The Court notes that the Trial Court is yet to consider and render itself on the application and prayers for injunction. The Trial Court merely pushed the hearing of the application to another date. It beats logic that the Applicants can lodge an application for injunction before the Trial Court, but before that application is heard, they again lodge an application for the same injunction before this Court. That would amount to invoking the Appellate jurisdiction of this Court unfairly. They should wait for a determination of the Trial Court first, before proceeding to this Court on an Appeal. To do otherwise is to proceed in abuse of the process of this Court. 15. The Court is not persuaded that the prayers sought are merited. The Application is hereby dismissed. 16. As to costs the same follow the event and lie at the discretion of this Court. The Court directs that the Applicants do bear the costs of this application. **Determination.** 17. The Applicants’ application by way of a Notice of Motion dated 20th August, 2025 is HEREBY dismissed for lack of merits. 18. The costs of the Application are awarded to the Respondents. 19. It is so ordered. **DATED, SIGNED AND DELIVERED AT MILIMANI THIS 11TH DAY OF JUNE, 2026.** **NJOROGE BENJAMIN K.** **JUDGE** **In the presence of:** Mr. Mwangi holding brief for Mr. Karanja for the Appellants/Applicants. Miss Kilima for the Respondents/Respondents. Mr. John Paul - Court Assistant