Bamburi Cement Ltd v Masai Kenya Ltd [2026] KEHC 13584 (KLR)

REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NAIROBI MILIMANI LAW COURTS CIVIL APPELLATE DIVISION HCCA NO. E442 OF 2025 BAMBURI CEMENT LIMITED...................................APPELLANT -VERSUS- MASAI KENYA LIMITED.......................................RESPONDENT RULING Introduction 1. The matter before the Court is the Appellant's Notice of Motion dated 7ᵗʰ May, 2025, brought principally under Sections 1A, 1B, 3A and 94 of the Civil Procedure Act and Order 42 Rules 6 and 7 and Order 51 Rule 1 of the Civil Procedure Rules. The application seeks, inter alia, stay of execution of the judgment and decree of the subordinate court delivered on 14ᵗʰ March, 2025, pending the hearing and determination of the appeal. It also challenges the execution process commenced against the Appellant and seeks consequential orders in respect of the warrants and proclamation issued in execution.

2. The application arises from the judgment of Hon. H. M. Ng'ang'a, Principal Magistrate, delivered on 14ᵗʰ March, 2025 in MCCOMMSU No. E1004 of 2020, in which judgment was entered in favour of the Respondent in the sum of Kshs. 4,446,775.22, together with interest and costs. The trial Court also granted the Appellant thirty days' stay of execution.

3. Aggrieved by that decision, the Appellant lodged a Memorandum of Appeal dated 14ᵗʰ April, 2025. The appeal challenges, among other matters, the trial Court's interpretation of the Transport Agreement, its evaluation of the evidence concerning delivery of the cement, the treatment of GPS tracking data and delivery notes, the burden and standard of proof applied, and the finding that the Appellant was in breach of contract.

4. The present application was subsequently filed on 7ᵗʰ May, 2025, following commencement of execution by the Respondent through Betabase Auctioneers. The Applicant contends that its movable assets were proclaimed and that some of the proclaimed assets constitute essential tools of its trade. It further challenges the execution process on the grounds, inter alia, that execution was commenced before taxation of costs and that the decree was extracted without its participation. Background 1. The dispute before the subordinate Court arose from a Transport Agreement between the parties under which the Respondent was engaged to transport cement to the Appellant's customers. The particular dispute concerned consignments delivered, or alleged to have been delivered, to China Communications Construction Company Limited at Kimuka, Kajiado, between April and July, 2018. 2. The Appellant's case before the trial Court was that, after paying the Respondent for the consignments, it subsequently received information from the customer that a consignment of approximately 224.7 tonnes had not been received. The Appellant states that it thereafter undertook investigations, including an examination of GPS tracking data relating to motor vehicle KCD 012A, which, according to it, showed that the vehicle did not enter the customer's premises or follow the designated delivery routes.

3. The Appellant consequently recovered a sum of Kshs. 3,951,850.57 which it had previously paid to the Respondent. The Respondent thereafter instituted the subordinate court proceedings, resulting in the judgment now under appeal.

4. The trial Court found against the Appellant. Among the matters relied upon in reaching that conclusion were the delivery notes produced by the Respondent and the absence, in the Court's view, of independent investigation sufficient to establish fraud or theft to the requisite standard. The Appellant challenges those findings on appeal.

5. Following expiry of the thirty-day stay granted by the trial Court, the Respondent commenced execution. The record contains a warrant of attachment, warrant of sale and proclamation of movable property. The execution documents reflect an amount of approximately Kshs. 7,148,803.21, comprising the principal judgment sum, interest, costs and other amounts claimed in execution.

6. On 8ᵗʰ May, 2025, this Court issued a conditional stay directing the Appellant to deposit 50% of the decretal sum. The Applicant subsequently deposited Kshs. 2,223,388.00 on 13ᵗʰ May, 2025, relying on the Court's payment invoice which reflected that amount. The Applicant contends that the deposit represented 50% of the judgment sum of Kshs. 4,446,775.22.

7. The Respondent disputes that position. It maintains that the amount due for purposes of execution was approximately Kshs. 7,148,803.21, inclusive of interest and costs, and that the sum deposited by the Appellant was therefore insufficient to constitute 50% of the decretal amount. The Respondent further contends that the Appellant approached the Court after the expiry of the initial thirty-day stay and only after execution had commenced. The Appellant's Case 1. The Appellant's case is principally that the intended appeal is arguable and raises serious questions concerning contractual interpretation, the alleged admission by the Respondent's witness that delivery had not been completed, the evidential value of the GPS tracking data, the authenticity and completeness of the delivery notes, the burden and standard of proof, and the finding that the Appellant had breached the Transport Agreement.

2. The Appellant contends that substantial loss will result if execution proceeds. In particular, it argues that the proclaimed assets constitute core tools of its trade and that their attachment would interfere with its operations. It further expresses apprehension that, should the appeal succeed after the decretal sum has been paid over, recovery from the Respondent may be difficult.

3. The Appellant also challenges the legality of the execution process. It invokes Section 94 of the Civil Procedure Act in relation to execution before taxation of costs and Order 21 Rule 8 of the Civil Procedure Rules concerning the preparation and settlement of decrees.

4. On delay, the Appellant's position is that the application was filed promptly upon commencement of execution. It points out that judgment was delivered on 14ᵗʰ March, 2025, the Memorandum of Appeal was filed on 14ᵗʰ April, 2025, and the present application followed on 7ᵗʰ May, 2025.

5. On security, the Appellant maintains that it complied with this Court's conditional order by depositing Kshs. 2,223,388.00, being 50% of the judgment sum of Kshs. 4,446,775.22, as reflected in the Court's invoice. The Respondent's Case 1. The Respondent opposes the application. It maintains that the appeal is devoid of merit and that the trial Court properly construed the Transport Agreement and evaluated the evidence before it. In particular, the Respondent relies on the signed delivery notes as prima facie evidence of delivery and contends that the Appellant failed to produce sufficient evidence to displace them.

2. The Respondent further submits that the Appellant failed to discharge its evidential burden concerning the alleged non-delivery and that reliance on GPS data, without subjecting the delivery notes to forensic examination or producing independent corroborative evidence, was insufficient to displace the Respondent's documentary evidence.

3. With respect to stay, the Respondent contends that the requirements under Order 42 Rule 6 are cumulative and that the Appellant has failed to establish substantial loss, has approached the Court after unreasonable delay, and has failed to comply with the conditional order requiring deposit of 50% of the decretal sum.

4. The Respondent further contends that this is a money decree capable of being compensated by repayment and that granting stay would unfairly deprive it of the fruits of its judgment. It consequently urges the Court to dismiss the application and permit execution to proceed. Issues for Determination 1. Having considered the Notice of Motion, the affidavits, the judgment of the subordinate Court, the Memorandum of Appeal, the execution documents and the respective submissions, I am of the view that the following issues arise for determination: 2. *Whether the Appellant has demonstrated sufficient cause for the grant of stay of execution pending appeal;* 3. *Whether the Appellant has demonstrated that substantial loss may result unless stay is granted;* 4. *Whether the application was made without unreasonable delay;* 5. *Whether the Appellant has provided, or complied with the requirement for, security for the due performance of the decree;* 6. *Whether the nature of the appeal and the circumstances of the execution warrant preservation of the subject matter pending determination of the appeal; and* 7. *What orders should issue, including in respect of the challenge to the execution process and costs.* 8. I have deliberately framed the issues around the interlocutory application. The Court is **not sitting as the first appellate Court on the merits

of the judgment** at this stage. The correctness of the trial Court's findings concerning delivery, the GPS evidence, the delivery notes, contractual liability and the amount awarded will fall for determination when the appeal itself is heard. Applicable Legal Principles 1. The starting point is Order 42 Rule 6(2) of the Civil Procedure Rules, which provides that an applicant seeking stay of execution pending appeal must satisfy the Court that substantial loss may result unless stay is granted, that the application has been made without unreasonable delay, and that such security as the Court orders for the due performance of the decree has been given.

2. The jurisdiction is discretionary, but the discretion must be exercised judicially. In *Butt v Rent Restriction Tribunal [1979] KECA 22 (KLR)**,* the Court of Appeal emphasised that the discretion to grant stay should be exercised in a manner that does not unnecessarily prevent an appeal from being rendered nugatory. The Court further recognised that the circumstances of each case and the appropriate security are matters for the Court's discretion.

3. The Court of Appeal has also made clear that the mere filing of an appeal does not, by itself, operate as a stay. The statutory conditions must be satisfied. In *Kenya Shell Limited v Benjamin Karuga Kibiru & Another [1986] KECA 94 (KLR)**,* the Court underscored that substantial loss is a central consideration and that the applicant must demonstrate the loss that would result if execution proceeds.

4. The purpose of the jurisdiction is, however, not to confer an advantage upon the judgment debtor at the expense of the successful litigant. The Court must strike a balance between the Appellant's undoubted right of appeal and the Respondent's entitlement to enjoy the fruits of its judgment. That balance is reflected in the jurisprudence on stay and the preservation of the substratum of an appeal.

5. The Supreme Court has similarly recognised the preservation principle. In *Gatirau Peter Munya v Dickson Mwenda Kithinji & 2 Others [2014] KESC 30 (KLR)*, as reiterated in subsequent decisions, the Court identified arguability of the appeal and the risk of the appeal being rendered nugatory as central considerations in the exercise of its stay jurisdiction. The Supreme Court has explained that an arguable appeal need not necessarily succeed; it need only raise a bona fide issue deserving consideration.

6. Although the present application is governed principally by Order 42 Rule 6, rather than the Supreme Court's distinct interlocutory jurisdiction, the Supreme Court's preservation jurisprudence is useful in underscoring the underlying purpose of interim appellate relief: to preserve the subject matter sufficiently to ensure that the appellate process remains meaningful.

7. The Court must therefore consider the statutory requirements cumulatively, while bearing in mind the overriding objective of the civil process and the need to ensure that neither the right of appeal nor the legitimate fruits of the judgment are rendered illusory. Whether the Appeal Raises Arguable Issues 1. The Respondent has urged the Court to reject the appeal as lacking merit. At this interlocutory stage, however, the Court is not required to conduct a mini-trial or determine whether the appeal will ultimately succeed.

2. The Memorandum of Appeal raises, among other issues, whether the trial Court properly evaluated the GPS tracking evidence; whether it properly treated the delivery notes as proof of delivery; whether an alleged admission concerning non-delivery was properly considered; whether the burden of proof was improperly shifted to the Appellant; whether the trial Court applied an inappropriate standard of proof in considering allegations of fraud or irregularity; and whether the contractual provisions were correctly interpreted.

3. The Appellant's written submissions develop those grounds further. Of particular note is the complaint that the trial Court itself recorded evidence concerning an alleged admission that delivery had not been completed, yet proceeded to find the Appellant liable. The Appellant also challenges the finding that it ought to have undertaken a forensic investigation of the delivery notes.

4. Whether those complaints will ultimately succeed is a matter for the hearing of the appeal. For present purposes, I am satisfied that they are not frivolous. They raise questions touching on the evaluation of evidence, contractual obligations and the applicable burden and standard of proof.

5. I therefore find, for purposes of this application only, that the appeal is arguable. That finding should not be understood as an expression of opinion on the ultimate merits of the appeal. Analysis and Determination Substantial Loss 1. The next question is whether the Applicant has demonstrated that it stands to suffer substantial loss if the stay sought is not granted. The requirement for substantial loss is central to an application for stay of execution under Order 42 Rule 6 of the Civil Procedure Rules. The mere fact that execution has commenced does not, without more, constitute substantial loss. The Applicant must demonstrate the particular prejudice that would arise if execution proceeds and the appeal subsequently succeeds.

2. In *Kenya Shell Limited v Benjamin Karuga Kibiru & Another [1986] KECA 94 (KLR)*, the Court of Appeal emphasized that the Court must be satisfied that substantial loss may result to the Applicant before granting a stay. Similarly, the courts have consistently held that execution, being a lawful process, does not by itself amount to substantial loss. The Applicant must establish circumstances showing that the execution would irreparably affect the substratum of the appeal.

3. In the present matter, the Applicant has not merely complained of the possibility of payment of a money decree. It has placed before the Court the proclamation issued by the auctioneer and identified the movable assets that were proclaimed. Its case is that the assets constitute essential equipment and tools of its business and that their removal and sale would interfere with its operations.

4. I have considered that contention alongside the nature of the decree under challenge. The decretal amount is substantial, being approximately Kshs. 7,148,803.21 inclusive of interest and costs as reflected in the execution documents. The threatened execution is therefore not insignificant.

5. I am, however, not persuaded that the Applicant has established substantial loss merely on the basis that the decree is monetary or that the Respondent has not demonstrated its financial capacity to refund the decretal amount. A money decree is ordinarily capable of restitution. The Applicant bears the initial burden of placing before the Court sufficient material from which the Court may conclude that repayment would be doubtful or that other circumstances would render the appeal nugatory.

6. Nevertheless, the Court is required to consider the circumstances of the execution as a whole. In this case, execution has proceeded beyond the mere issuance of a demand. The Applicant's movable assets have been proclaimed, and it specifically contends that the assets are integral to its operations. If such assets were sold before the appeal is determined, the resulting disruption may not be adequately remedied by a subsequent order for repayment of money.

7. The Court therefore finds that there is a real risk of prejudice to the Applicant if execution is allowed to proceed unchecked. This finding is not based on the mere fact of execution, but on the nature of the assets proclaimed and the potential consequences of their sale before the appellate process is concluded.

8. The requirement of preservation of the subject matter must, however, be balanced against the Respondent's legitimate entitlement to enjoy the fruits of its judgment. A successful litigant should not ordinarily be kept out of the fruits of a judgment without sufficient justification. Whether the Application Was Made Without Unreasonable Delay 1. The judgment of the subordinate court was delivered on 14ᵗʰ March, 2025. The trial court granted a stay of execution for 30 days. The Applicant thereafter lodged its Memorandum of Appeal on 14ᵗʰ April, 2025 and filed the present application on 7ᵗʰ May, 2025.

2. The Respondent contends that the Applicant ought to have moved the Court within the 30-day period granted by the trial court and that the present application was prompted only by the commencement of execution.

3. I do not agree that the Applicant's conduct amounts to unreasonable delay. The filing of the Memorandum of Appeal within the period stated above demonstrates that the Applicant took steps to challenge the judgment. More importantly, the application for stay was filed on 7ᵗʰ May, 2025, when execution had commenced and the Applicant had been confronted with the proclamation of its assets.

4. The period between the expiry of the trial court's stay and the filing of the present application, considered against the chronology before the Court, is not so inordinate as to disentitle the Applicant to relief. The Applicant moved this Court once execution became imminent.

5. I therefore find that the application was made without unreasonable delay within the meaning of Order 42 Rule 6(2) of the Civil Procedure Rules. Security for the Due Performance of the Decree 1. The question of security requires particular consideration. On 8ᵗʰ May, 2025, this Court directed that execution of the judgment in Milimani MCCOMMSU No. E1004 of 2020 be stayed upon the Applicant depositing 50% of the decretal sum in Court. The Applicant subsequently obtained the requisite Court invoice and deposited Kshs. 2,223,388 on 13ᵗʰ May, 2025.

2. The Applicant maintains that the sum deposited represents 50% of the principal judgment sum of Kshs. 4,446,775.22. The Respondent, on the other hand, contends that the relevant decretal amount included interest and costs and that the Applicant therefore failed to comply with the order.

3. I have considered this objection carefully. The order made by this Court required the Applicant to deposit 50% of the decretal sum. The Applicant obtained an invoice from the Court for Kshs. 2,223,388 and paid the said amount. There is no dispute that the payment was made pursuant to the order of this Court and within the period required.

4. The Respondent's contention essentially invites the Court to retrospectively redefine the amount contemplated by its earlier order. That cannot properly be done in the circumstances before me. If the Court intended the 50% to be calculated upon the entire amount appearing in the execution documents, including subsequent interest and costs, the order would have expressly so provided.

5. I therefore find that the Applicant complied with the conditional order of 8ᵗʰ May, 2025. The sum of Kshs. 2,223,388 deposited pursuant to that order shall remain subject to the final determination of the appeal or further orders of the Court.

6. The deposit also demonstrates the Applicant's willingness to provide security for the due performance of the decree. Security under Order 42 Rule 6 is not intended to punish an Applicant or to make the right of appeal practically inaccessible. Its purpose is to ensure that the successful party is protected in the event that the appeal fails. The Challenge to the Process of Execution 1. The Applicant has further challenged the execution process on two principal grounds: first, that execution was undertaken before taxation of costs without leave under Section 94 of the Civil Procedure Act; and secondly, that the decree was extracted without its approval contrary to Order 21 Rule 8 of the Civil Procedure Rules.

2. I have considered those submissions. Section 94 of the Civil Procedure Act provides for execution before taxation in respect of a decree passed by the High Court in the exercise of its original civil jurisdiction. The judgment presently under challenge was, however, delivered by the subordinate court in Milimani MCCOMMSU No. E1004 of 2020.

3. The Applicant's reliance on Section 94 must therefore be approached with caution. The provision is specifically directed at decrees of the High Court in its original civil jurisdiction. The Applicant cannot properly invoke it as an automatic bar to execution of a decree issued by the subordinate court.

4. The Court of Appeal's decision in *Bamburi Portland Cement Company Limited v Imranali Chandbhai Abdulhussein [1996] KECA 202 (KLR)* confirms the importance of leave under Section 94 where the statutory provision applies. That decision, however, concerned a decree falling within the scope of Section 94.

5. I therefore decline, at this interlocutory stage, to find that the execution herein is invalid merely because the Respondent did not obtain leave under Section 94 of the Civil Procedure Act. 6. The complaint concerning Order 21 Rule 8 stands on a different footing. The rule prescribes the procedure for preparation and approval of a decree. Where parties disagree on the terms of a draft decree, the Rules provide a mechanism for the matter to be placed before the Court for settlement.

7. However, non-compliance with a procedural step in the preparation of a decree does not, without more, automatically render the decree a nullity. In [*Samuel Kamau Macharia & another v Ocean Freight Transport Company Limited [2019] KECA 943 (KLR)*](https://new.kenyalaw.org/akn/ke/judgment/keca/2019/943/eng%402019-02-22)the Court of appeal held that the Court should consider whether the procedural omission occasioned prejudice or resulted in a miscarriage of justice before nullifying a decree.

8. In the present case, the Applicant has not demonstrated at this interlocutory stage that the alleged failure to involve it in the preparation of the decree has altered the substance of the judgment or occasioned prejudice that cannot be addressed through the appellate process.

9. I therefore decline to set aside the decree or the warrants solely on the basis of the alleged non-compliance with Order 21 Rule 8. That issue, to the extent that it raises a substantive challenge to the execution process, may be addressed through the appropriate procedural mechanism. Balancing the Competing Interests 1. The Court must ultimately strike a fair balance between two competing interests. On the one hand is the Applicant's right to pursue its appeal without the subject matter being destroyed or its operations materially disrupted by execution. On the other is the Respondent's right, as a successful litigant, to enjoy the fruits of its judgment.

2. The Supreme Court in *Cabinet Secretary for National Treasury & Planning & 4 Others v Okoiti & 52 Others [2024] KESC 47 (KLR)* reaffirmed that the principles governing stay require consideration of the arguability of the intended appeal and the consequences of refusing stay, with the ultimate objective being preservation of the subject matter pending appeal.

3. I have already found that the intended appeal raises bona fide questions concerning the interpretation and application of the contractual obligations, the evidentiary treatment of the delivery notes and GPS evidence, the burden of proof, and the quantum awarded. The appeal is therefore not frivolous.

4. The Applicant has also demonstrated sufficient circumstances to warrant preservation of the status quo, particularly having regard to the proclamation of operational assets. At the same time, the Respondent's interests can be protected through security.

5. In the circumstances, I find that the justice of the case lies in maintaining the stay of execution on appropriate terms rather than permitting execution to proceed to completion.

6. The Court is therefore satisfied that the Applicant has established sufficient cause for the grant of a stay under Order 42 Rule 6 of the Civil Procedure Rules, subject to the orders set out in the final phase of this ruling. Final Orders and Disposition 1. Having considered the Notice of Motion dated 7ᵗʰ May, 2025, the affidavits filed in support and opposition thereto, the written submissions of the parties, the Memorandum of Appeal and the material placed before the Court, I am satisfied that the Applicant has met the threshold for the grant of a stay of execution under Order 42 Rule 6 of the Civil Procedure Rules. 2. The Court is satisfied that the intended appeal raises arguable questions which merit consideration by the appellate Court. The Court has also found that the Applicant has demonstrated sufficient risk of prejudice arising from the continued execution against the proclaimed movable assets, while the Respondent's interests can adequately be protected through security.

3. The Court is equally satisfied that the Applicant moved the Court without unreasonable delay and complied with the conditional order issued on 8ᵗʰ May, 2025 by depositing Kshs. 2,223,388 in Court.

4. I reiterate that, at this stage, the Court is not called upon to determine the merits of the appeal. The observations made concerning the arguability of the appeal are solely for purposes of determining the present application and shall not bind the Court hearing the appeal.

5. The Court must also avoid granting orders that would effectively determine the substantive execution dispute or the appeal itself at an interlocutory stage. Consequently, while the Court finds it necessary to preserve the subject matter of the appeal, it does not find sufficient basis on the material before it to declare the decree itself a nullity or to finally set aside the warrants solely on the grounds advanced in the present application. Final Orders 1. In the result, the Notice of Motion dated 7ᵗʰ May, 2025 is hereby allowed in part and the Court makes the following orders: 2. *There shall be a stay of execution of the judgment and decree issued in Milimani MCCOMMSU No. E1004 of 2020, pending the hearing and determination of the appeal in HCCA No. E442 of 2025.* 3. *The sum of Kshs. 2,223,388 deposited by the Applicant pursuant to the order of this Court issued on 8ᵗʰ May, 2025 shall remain deposited in Court as security for the due performance of the decree pending the hearing and determination of the appeal or further orders of the Court.* 4. ***The Respondent, its agents, servants and/or auctioneers shall not proceed with, or take any further steps in, the execution of the said decree, including the attachment, removal or sale of the movable assets proclaimed pursuant to the warrants of attachment and proclamation forming part of the record

herein, pending the hearing and determination of the appeal.* 5. *The warrants of attachment and the proclamation already issued shall, for the avoidance of doubt, be held in abeyance and shall not be acted upon during the pendency of the stay granted herein.* 6. *The prayer seeking the setting aside and/or nullification of the decree and the warrants of attachment on account of the alleged non-compliance with Section 94 of the Civil Procedure Act and Order 21 Rule 8 of the Civil Procedure Rules is declined.* 7. *Nothing in this ruling shall be construed as determining the merits of the appeal or the substantive validity of the decree, which matters shall be determined in the appeal.* 8. *The Applicant shall take all necessary steps to prosecute the appeal expeditiously and without unnecessary delay.* 9. *The costs of the Notice of Motion dated 7ᵗʰ May, 2025 shall abide the outcome of the appeal.*** 10. For avoidance of doubt, the order for stay herein is intended to preserve the subject matter of the appeal and to maintain the status quo pending its determination. It does not extinguish, vary or finally determine the Respondent's rights under the judgment and decree of the subordinate court.

11. Orders accordingly. DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI THIS 17TH DAY OF SEPTEMBER 2026. HON. L. P. KASSAN JUDGE