https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10157

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT ELDORET** **CIVIL APPEAL NO. E216 OF 2024** **DAVID BUNDOTICH………………………………………….APPELLANT** **VERSUS** **FEMINA EBOSO……………………………………………..RESPONDENT** **RULING** 1. By way of a Notice of Motion dated 23rd April 2025, the Applicant seeks the following orders; 2. **Spent.** 3. **Spent** 4. **That there be an injunction restraining the respondent from executing the decree in Eldoret CMCC. No. 391 of 2002 - Femina Eboso v David Bundotich pending the hearing and determination of the appeal herein.** 5. **That the costs of the motion be provided for.** 6. The Application is expressed to be brought under **Order 42 Rule 6 (6) of the Civil Procedure Rules, 2010** and **Section 3A of the Civil Procedure Act, Cap. 21.** The Application is premised on the grounds on the face of it and the averments of the Applicant in the Affidavit in support of the Application. 7. In his Application, the deponent avers that he was the defendant in Eldoret CMCC. No. 391 of 2002 - Femina Eboso v David Bundotich and Judgment was entered in favour of the respondent on 7th August, 2015. The respondent then moved the court to execute by way of seeking his arrest and committal to civil jail as a consequence of which the Applicant moved to court under **Section 34 of the Civil Procedure Act** seeking for a determination on questions relating to execution vide an application dated 17th January, 2024 which application was subsequently dismissed by the trial court in a Ruling dated 20th September, 2024. 8. That being aggrieved, with the decision, he filed a Memorandum of aAppeal and applied for certified proceedings, annexing the memorandum of appeal and letter requesting for proceedings marked as ‘E’ and ‘F’ respectively. He urged the court to grant an injunction awaiting the appeal as the order dismissing the application is a negative order. 9. The deponent averred that the matters raised on appeal are important issues and that the judgment in the suit in which execution is being carried out is a money decree which, if paid out to the respondent her ability to refund in the event the appeal succeeds is questionable. Further, that the application has been made without unreasonable delay as execution is yet to proceed. He stated that he is willing to abide by such terms for the grant of the order as the court would impose and prayed the court allow the Application. 10. In response to the application, Counsel on record for the respondent, Morris Indakwa Buluma, swore an affidavit dated 16th May 2025. He urged that the application lacks merit, is riddled in falsehood, contains matters of conjecture and is an afterthought and should be disallowed. That the in paragraph 9 of the supporting affidavit, it is evident that he deliberately refused to settle the said decree and now he seeks this Court’s assistance to further delay the Respondent from enjoying the fruits of her judgment. 11. The deponent averred that no satisfactory explanation has been made by the Applicant in this matter on his failure to pay the decretal amount since 7th August, 2015 when judgment was delivered. He has never made any proposal on settling the decree and further, that he has not provided any security for due performance and has been wasting the court’s time. 12. He stated that this application is brought after a period of seven months from 20th September, 2024 which is inordinately long. Additionally, that the Applicant appears to have been jolted by the Notice to Show Cause against him that had been fixed for 10th April 2025 but did not proceed. In response to paragraph 6 of the supporting affidavit, he deponed that the Applicant did not comply with the subordinate court’s directions on filing submissions. Counsel maintained that this application lacks merit and ought to be dismissed with costs and prayed that this Court uphold the Ruling delivered on the 20th of September 2024 in the interest of justice. 13. The Applicant filed a Supplementary Affidavit dated 3rd June 2025 where he reiterated the contents of his supporting affidavit and further, urged that the application has not been contested by the respondent since the affidavit sworn by her advocate relates to contentious matters that ought to have been deposed to by herself in person. He urged that the respondent does not contest that substantial loss will occur and does not contest that the appeal is not frivolous. 14. Additionally, that the delay is not unreasonable as execution is yet to be carried out and that in an application for injunction pending appeal an offer for security is not amongst the conditions to be satisfied. He urged that he has deponed to the fact that he is ready to abide by such terms as the court would impose. He stated that the application has met the conditions set in law for an injunction. **Applicants’ Submissions** 1. Counsel urged that the Application is predicated on the Appellant’s application in the trial court which challenged the computation of interest on the decree entered in favour of the respondent, since the respondent had delayed in executing the judgment rendered in her favour on 7th August, 2015 thus increasing the same by about three times the original value. That in both the trial court’s application and the application, the respondent has responded through her advocate on record, which response should be struck out, as the application raises contentious matters that ought to be deponed by the respondent. 2. He maintained that the application is unopposed thus should be allowed as prayed and submitted that the advocates on record should not be permitted to get into the ring of litigation. Further, that the court ought not to provide comfort and cover for a party who exhibit scant respect for rules at the expense of an innocent party who strives by the rules as the same offends **Rule 9 of the Advocates (Practice) Rules, 1966.** 3. Counsel urged that in the event that this Court is inclined to entertain the said replying affidavit, the tenets that are considered when granting a prayer for an injunction have been well settled in the well celebrated case of **Giella v Cassman Brown Co. Ltd (1973) E.A. 358.** He submitted that the Appellant has presented a prima facie case as against the respondent warranting a grant of the temporary injunction sought herein. 4. That as aforementioned, the respondent has slept on her rights to execute a judgment that was rendered in her favour thus making her indolent. Equity does not favour the indolent and as such, a temporary injunction should be issued pending the hearing and the determination of the appeal. Counsel placed reliance on the case of Appeal in **Mrao Limited v First American Bank of Kenya & 2 others (2003) eKLR.** 5. On the second limb, Counsel urged that the Appellant stands to suffer irreparable harm unless the temporary injunction orders sought are issued. That the appellant seeks to bar the execution of the orders issued on the grounds set on the face of the Memorandum of Appeal to which it would also not be prejudicial to the respondent as the execution has not begun. Further, the substratum of the appeal stands to be lost and the appeal will be overtaken by events, rendering it a mere academic exercise and a blatant waste of the court’s time. 6. On the limb of balance of convenience, Counsel urged that the memorandum of appeal has embodied grounds that raise substantial issues that need to be determined by this Court on appeal. The appellant has equally approached this court without undue delay upon obtaining the ruling therein and has expressed his willingness to abide by such terms for the grant of the sought orders as the court would impose. Counsel prayed that the application be allowed as prayed. **Respondents’ Submissions** 1. Learned counsel for the respondent laid down the background leading up to the application and urged that the steps taken by the Respondent are a true picture of how long it has taken for her to enjoy the fruits of her judgment. 2. Counsel cited **Order 40 Rule 1of the Civil Procedure Rules** with regards to the requirements for an order of injunction to be granted and further, cited the holdings in the case of **Giella v Cassman Brown (1973) EA 358** and as reiterated in the case of **Nguruman Limited vs Jan Bonde Nielsen & 2 Others CA No. 77 of 2012 [2014] eKLR.** 3. Counsel urged that the Appellant has failed to meet the conditions set out in **Order 40 of the Civil Procedure Code.** He pointed out that the Appellant, in his Supporting Affidavit, outlines the efforts of the Respondent in executing the said decree from the year 2015 when judgment was delivered to date. Further, at Paragraph 2 of his Supporting Affidavit he admits to have been aware that judgment was entered against him which he ought to have satisfied long ago. 4. Counsel urged that the efforts to execute by the Respondent herein have always failed since the Appellant was aware of the attempts but he became slippery. It is when he realized that the arms of justice were reaching him that he now comes up with this application. 5. On the replying affidavit by counsel for the respondent, he submitted that what is raised in the application are purely issues of law and there are no contentious matters of fact that would require a response by the Respondent. Further, that an order of temporary injunction restraining the Respondent from executing the said decree is not in the best interest of justice. 6. He urged that litigation must come to an end and that the conditions under **Order 40 Rule 1** have not been met and the Appellant cannot therefore invoke the provisions of **Order 42 Rule 6(6) of the Civil Procedure Rules.** Further, the Appellant has not satisfied this court that unless the orders are granted he stands to suffer substantial loss neither has he offered any security to secure the interest of the Respondent. He prayed the Application be dismissed with costs. **Analysis & Determination** 1. I have considered the pleadings as well as the submissions by the parties. I note that the Applicant has filed his Application under the provisions of **Order 42 Rule 6 of the Civil Procedure Rules** and **Section 3A of the Civil Procedure Act.** As can be gleaned from the said provision as herein above reproduced, it is indeed not in doubt that the court does have the mandate to grant an order of injunction pending an appeal. However, there are conditions that an Applicant seeking such a relief is required to meet. This being the case then it is my considered opinion that the issue for determination is 2. **whether the applicant has satisfied the conditions necessary for the granting of an injunction pending appeal** 3. **Whether the order for an injunction pending appeal is merited** 1. At this juncture, it is important to state that if the court’s finding on the 1st issue is in the affirmative, then it will proceed and give its determination on the 2nd issue. However, if the finding be negative, then there will be no need to delve into the second issue for reasons that the affirmative finding will determine the Application at its threshold. 2. That said, the conditions necessary for compliance in any appeal filed are provided under **Order 42 Rule 13(4) of the Civil Procedure Rules** as follows **Before allowing the appeal to go for hearing the judge shall be satisfied that the following documents are on the court record, and that such of them as are not in the possession of either party have been served on that party, that is to say—** **(a) the memorandum of appeal;** **(b) the pleadings; 102 Civil Procedure Rules (Legal Notice 151 of 2010) Kenya** **(c) the notes of the trial magistrate made at the hearing;** **(d) the transcript of any official shorthand, typist notes electronic recording or palantypist notes made at the hearing;** **(e) all affidavits, maps and other documents whatsoever put in evidence before the magistrate;** **(f) the judgment, order or decree appealed from, and, where appropriate, the order (if any) giving leave to appeal:** **Provided that—** 1. **a translation into English shall be provided of any document not in that language;** 2. **(ii) the judge may dispense with the production of any document or part of a document which is not relevant, other than those specified in paragraphs (a), (b) and (f).** 3. It is to be noted that under the proviso to the said **Order 42 Rule 13(4)** herein above, the judge has the discretion to dispense with the requirement of some documents in order that it makes a finding that the appeal should go to hearing but not all. The documents that the judge has no discretion over are therein listed as the memorandum of appeal, the pleadings and the judgement, order or decree appealed from as well as the order (if any) giving leave to appeal. 4. In the instant Application, having perused the Applicant’s Application, I have noted that the impugned Ruling, Order and/or Decree of the trial court have not at all been availed. Further it is alleged (this in light of the fact that the Ruling has not been availed) that the Ruling was delivered on 20th September 2025. 5. However, I note that even as the copy of Memorandum of Appeal filed is dated 15th October 2024, this Application was filed on 23rd April 2025, a period of over 7 months after the said Ruling was delivered. It has not been stated that an order of stay of the said Ruling was given by the Hon Trial magistrate and also no reasons have been given for this delay which I find to be very inordinate. 6. In light of the above, it is my finding that the Applicant herein has failed to meet the requirements of Order 42 Rule 13(4) of the Civil Procedure Rules. It is important to add that the order of injunction that the Appellant seeks, and more particularly under the provisions that he has moved the court by, is an equitable remedy which is always granted at the discretion of the court. 7. Of particular relevance of the various maxims of equity in light of my finding herein that “equity follows the law”. The court in this regard finds that by dint of the fact that the Applicant’s Application does not comply with the relevant mandatory provisions of the law under which he has moved the court, the said Application is misconceived, incurably defective and bad in law. 8. With this finding, as already herein stated, the 2nd issue for determination needs no consideration. The Application is now hereby dismissed with costs to the Respondent. **Read Dated and Signed Virtually at BUNGOMA on 9th July 2026** **E.OMINDE JUDGE**