https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9695

Climax Coaches Ltd v Ehinda & 2 others (Civil Appeal E011 of 2026) [2026] KEHC 9695 (KLR) (6 July 2026) (Ruling) Neutral citation: [2026] KEHC 9695 (KLR) Republic of Kenya In the High Court at Vihiga Civil Appeal E011 of 2026 RN Nyakundi, J July 6, 2026 Between Climax Coaches Limited Appellant and Jareth Ehinda 1st Respondent Jared Mwaura Mbugua 2nd Respondent Equity Bank Limited 3rd Respondent Ruling 1.Before this Court is Notice of Motion dated 10th day of June 2026, expressed to brought under Order 22 Rule 22 Order 42 Rule 6 of the Civil Procedure Rules, 2010, Section 3A of the Civil Procedure Act CAP 21 of the Laws of Kenya, Article 50 and 159 (2) of the Constitution of Kenya, 2010 and all other enabling provisions of the law seeking the following orders;a.That this application be certified as urgent, service thereof dispensed with and heard exparte in the first instance.b.That this Honourable Court be pleased to grant an interim order of stay of execution of the judgment and/or decree of Kshs. 380,000/= plus costs and interest in Hamisi CMCC No. 35 of 2021 delivered on 19th March, 2026 pending the hearing and determination of this application inter-parties.c.That this Honourable Court be pleased to grant an interim order of stay of execution of the judgment and/or decree of Kshs. 380,000/= plus costs and interest in Hamisi CMCC No. 35 of 2021 delivered on 19th March, 2026 pending the hearing and determination of this Appeald.That the costs of this application be provided for. 2.Which application is based on the grounds:-1.That the Applicant being aggrieved and dissatisfied with the judgment of the Honourable Court in Hamisi CMCC No. 35 of 2021 delivered on 19th March, 2026 filed this Appeal.2.That when judgment was delivered on the 19th March, 2026 counsel for Applicant sought 30 days stay of execution which was granted by the Honourable Court.3.That the stay granted lapsed on the 19th April, 2026 thereby exposing the Applicant to execution by the Respondent hence the Application herein.4.That the Appeal shall be rendered nugatory if the orders sought herein are not granted as the Respondent through the auctioneer shall proceed to sell the Applicants' property in execution of the decree.5.That the Appeal is meritorious with a high probability of success.6.That the Respondent is a person of straw and may not be in a position to make good any loss/ damage suffered if the decree herein is enforced and the Appeal ultimately succeeds.7.That the Appellants is ready to comply with conditions of the court upon granting of orders including the deposit of the decretal amount in a joint interest earning account.8.It is in the interest of justice that this application be allowed.9.That the application has been lodged timely and without inordinate delay and it is in the interest of justice that this Application be allowed as prayed. 3.In support of the application is an affidavit by Barbara Ngome who sworn an affidavit as an Advocate of the High Court and asserts as follows;1.That I am an Advocate of the High Court of Kenya practicing as such in the firm of Kirk Advocates LLP, who are on record for the Appellant and that I am personally seized of the conduct of this matter with leave and authority to swear this affidavit hence competent to do so.2.That I know of my own know knowledge that Judgment in in Hamisi CMCC No. 35 of 2021 was delivered on 19th March, 2026 in the sum of Kshs. (Annexed hereto and marked BN-OI is a copy of the judgment)3.That I know of my own knowledge that Orders for Stay of execution for thirty days were issued on the said date and the same lapsed on the 19th April, 2026.4.That I further know as of personal knowledge that upon notifying the Appellant of the contents of the judgment, they were aggrieved and dissatisfied with the said decision of the Honourable Court, thereby instructing us to Appeal against the Court's finding on quantum hence this appeal. (Annexed hereto and marked BN-02 is a copy of the memorandum of appeal)5.I know of my own knowledge that the Respondent has already commenced execution through Eshikhoni Auctioneers who served the Applicant with Proclamation notices and warrants dated 4th June, 2026 and 3rd June, 2026 respectively. (Annexed hereto and marked BN-03 is a copy of the proclamation notice and warrant).6.That it is within my knowledge that failure to grant stay of execution shall be prejudicial to the Applicant as the Respondent shall proceed to sell the Applicant's property in satisfaction of the decree.7.That I further know of my own knowledge and upon perusal of the judgment and the Memorandum of Appeal that this Appeal has a high chance of success and as such the prayers sought should be granted.8.That I know of my own know knowledge that the subsfratum of the Appeal shall then be rendered nugatory if an order of stay of execution is not granted.9.That I verily believe that the Respondent, being a person of stTaw, may not be in a position to make good any loss/ damage incurred or suffered by the Applicant if the decree herein is enforced and the appeal ultimately succeeds.10.That the Applicant is ready to comply with conditions of the court upon granting of orders including the deposit of the decretal amount in a joint interest earning account.11.That I verily believe that the grant of the Orders sought herein will not occasion any prejudice to the Respondent whereas the Applicant stands to suffer great prejudice should it not be allowed to ventilate its Appeal.12.That I know from my learning of the law that this Court has the inherent power to grant the Orders sought herein so as to enable the ends of justice to be met.13.That the application has been lodged timely and without inordinate delay and it is in the interest of justice that this Application be allowed as prayed.14.That I swear this affidavit in support of the application filed herewith and the orders sought therein.15.That what is deponed to herein above is true and correct to the best of my knowledge, information and belief save as to matters deponed to on information sources whereof have been disclosed and matters deponed to on belief whereupon grounds have been given. 4.In opposing the Application, is a Replying Affidavit of one Jareti Ehinda who on oath deponed as follows;1.That I am a male adult of sound mind and residing and working for gain within the Republic of Kenya and the Respondent herein hence competent to depone upon this affidavit.2.That the Appellant's application dated 10th June 2026 and the supporting affidavit of Barbara Ngome together with the annextures therein have been read and explained to me by my advocates on record and having understood the same I wish to respond as follows:3.That I am highly opposed to the application the same being an abuse of court process, frivolous, vexatious and brought with malice intent to delay the enjoyment of the fruits of judgment in Hamisi CMCC No. 35 of 2021 wherein judgment was delivered in my favour on 19th March 2026 at Kshs. 386,550/= plus interest of Kshs 9,019, costs of 140,280 totaling to Kshs. 537,349/=. (Annexed and marked JEI is a copy of the decree, certificate of costs and warrants of attachment)4.That I am advised by my advocates on record which information I verily belief to be true that, the application fatally fails to meet the threshold and conditions for grant of an order for stay of execution,5.That the decree is for monetary compensation which is capable of restitution without the Applicant suffering irreparable harm.6.That the Applicant has failed to demonstrate any substantial loss that he is likely to suffer if the decretal sum is paid to me and the allegations regarding my inability to refund the decretal sum in the event the appeal succeeds are mere apprehensions unsupported by any evidence.7.That the Applicant has not demonstrated that I am a person of straw or otherwise incapable of making restitution and therefore there is no basis upon which this Honourable Court should deny me the enjoyment of my lawful decree.8.That execution has already commenced and auctioneer's fees and incidental expenses have been incurred as a consequence of the Applicant's failure to satisfy the decree and it is only fair and just that the Applicant bears the said costs.9.That in the alternative and without prejudice to the foregoing, should this Honourable Court be inclined to grant an order of stay of execution pending appeal, I pray that the Applicant be ordered to immediately pay to me one half (1/2) of the decretal sum together with all auctioneer's charges and expenses incurred in execution and deposit the remaining one half (1/2) of the decretal sum in a joint interest earning within such period as this Honourable Court may direct.10.That the proposed conditions would adequately secure the interests of both parties while ensuring that I am not unjustly denied the enjoyment of the fruits of my judgment.11.That in view of the foregoing, the Applicant's application ought to be dismissed with costs.12.That what is deponed to hereinabove is true to the best of my knowledge, information and belief 5.The application was canvassed by way of written submissions, although the court had the advantage of the 1st Respondent’s written submissions, dated 23rd June 2026, when the registry acknowledged receipt. In so far as the intended Appellant is concerned, as search in the CTS platform did not reveal any evidence of written submissions on this same subject matter. In the context of the 1st Respondent’s perspective, the intended Appellant has not satisfied the criteria on stay of execution pending appeal as outlined in Order 42 Rule 6 of the Civil Procedure Rules. In addition also it was learned counsel contention that in exercising discretion this court relies on the settled principles with regard to stay of execution developed overtime and applicable in our jurisdiction in the following authorities; James Wangwala & Another v Agnes Naliaka Cheseto (2012) eKLR, Kenya Shell Limited v Kibiru & Another (1986) EKLR 410, Arun C. Sharma vs Ashana Raikundalia t/a Raikundalia & Co. Advocates and 2 Others (2014) (KLR) and Ndung’u & Another v Safaricom PLC & Another (Civil Appeal E272 of 2024([2025] KEHC 2984 (KLR) (13th March 2025) (Ruling). 6.It is with background in mind that the learned counsel for the 1st Respondent argued and submitted that any orders of stay would be prejudicial to the judgment creditor who has already moved the court to execute and enforce the judgment. The Decision 7.This application is based on the judgment of the trial court dated 19th day of March 2026 in which the trial court pronounced itself as follows; on a claim arising out of the road traffic accident in which the plaintiff now Respondent, suffered bodily injuries necessitating filing of the suit for an award of damages. With regard to the first issue, the plaintiff testified and told the court that on 9th October 2020 he was lawfully riding motor cycle registration number KMEQ 127H along Kapsabet Chavakali road when the driver of motor vehicle registration number KCU 578A negligently drove the said motor vehicle causing it to knock him as a result of which he sustained injuries. He blamed the driver of the aforesaid motor vehicle for the accident.The plaintiff’s evidence is uncontroverted. I find that the plaintiff has proved his case against the defendants jointly and severally. I further find that the 1st defendant is wholly to blame for the accident. The 2nd defendant is vicariously held liable for actions and omissions of the 1st defendant. On the second issue, having found the plaintiff has proved his case against the defendants, it then follows that the plaintiff is entitled to the prayers sought. According to Pexh 1, the plaintiff sustained the following injuries;a.Bruises on the headb.Bruises and blunt injury to the backc.Bruises and blunt injury to the thighsIt is trite law that comparable injuries should attract similar awards. In Poa Link services co. ltd & another vs Sindani Boaz Benzemo (supra) the Respondent sustained the following injuries;i.Blunt injury to the chestii.Bruises of the lower abdomeniii.Bruises of the right hip jointiv.Bruises of the thigh and bruises on the kneeThe High Court upheld an award of Kshs 350,000/= by the lower court. The injuries the plaintiff sustained in this case are almost similar to the injuries the Respondent sustained in the cited case. Considering the effluxion of time, and the incidence of inflation, I find that an award of Kshs 380,000/= in general damages is sufficient recompense to the plaintiff for the injuries he sustained. Special damages of Kshs 6,550 was pleaded. The same has been proved by production of receipts. I thus award Kshs 6,550 in special damages. In the result, I hereby enter judgement in favor of the plaintiff against the defendants jointly and severally for a sum of Kshs. 386,550. The plaintiff shall also have costs and interest of this suit. 8.In our civil legal system, the grant of a stay of execution pending an appeal is not automatic. It is primarily governed by Order 42 Rule 6 of the Civil Procedure Rules. Under a court with jurisdiction exercises its discretion to balance a successive litigants’ rights to enjoy their judgment against preventing an Appellant from suffering irreparable hardship. Before granting stay of execution courts are obligated to evaluate three mandatory conditions set forth in Order 42 Rule 6(2) which provides inter alia as follows;a.Substantial loss – The applicant must prove that they will suffer genuine, tangible or legally recognized prejudice if the stay is not granted. The overarching test is whether a refusal to grant the stay would render the intended appeal “nugatory” (meaning that the even the appeal succeeds, the victory will be useless).b.No unreasonable Delay – The application must be timeously. The applicant must move the court expeditiously without undue delay after the judgment is delivered.c.Provision of Security - The applicant must furnish adequate security for the due performance of the decree or order. This guarantees the successful party get what they are owed if the appeal ultimately fails. 9.This is one area which is highly litigated in the various level of our court system and the basis of stay of execution several land mark and Appellant decisions have laid down the guiding principles which anchor discretion as herein summarized below;i.Visharam Ravji Halai vs Thornton & Turpin (1990): The Court of Appeal clarified that while the appellate court’s jurisdiction to grant a stay is unfettered the High Court’s jurisdiction is strictly tethered to the three conditions under Order 42, Rule 6ii.RWW v EKW [2019] eKLR: The High Court reinforced that the cornerstone of granting a stay is preserving the status quo and preventing the appeal from being rendered nugatoryiii.Arun C Sharma v Ashana Raijundalia [2014] eKLR. The Court of Appeal emphasized that providing security is a mandatory statutory requirement. A general oral willingness to comply is insufficient, the applicant must explicitly offer tangible securityiv.Sofinac Co. Ltd v Nelphaat Kimothi Mutuu [2013] eKLR: The Court highlighted that to show appeal will be rendered nugatory it is not enough to simply claim the Respondent is a “person of straw” without proving they will lack the financial capacity to refund the decretal sum if the appeal succeeds. 10.The right of appeal of any litigant or party who has already been admitted in any of the court systems and presented his or her case depended upon the gravitas of the issues adjudicated before the primary courts or tribunals has a right of appeal to a superior court. This right of appeal is anchored as a constitution imperative under Article 48 on Access to Justice and 50 on Fair Trial Rights of the Constitution of Kenya 2010. However, this right is not absolute and must be exercised in accordance with procedural law laid down in the statutes. In the case of Francis Kairioko Muruatetu v the Republic (2017) eKLR, the Supreme court thought discussing the issues under realm of criminal law had this to say inter alia that denying a convicted person the opportunity to seek review or appeal of sentence from higher court violates the constitutional right to a fair trial. It also goes without saying that essentially, no court should shut the doors of appeal against any intended Appellant who seeks to approach an appeals court to hear and determine his or her appeal depended upon the areas of dissatisfaction on the impugned judgment of the court below. This very apex court, also in the case of Dina Management limited v County Government of Mombasa, in Petition No 8 of 2021, it affirmed that while conditions like securing costs for an appeal exists, imposing exorbitant, unreasonable, financial burdens impedes a litigants’ constitutional access to justice and right to appeal. This essentially means that the right of appeal is a constitutional right that actualizes the right to access to justice for the full protection and benefit of the law. The obligation of this court is to appraise and evaluate the provisions of Order 42 Rule 6 of the Civil Procedure Rules and have them screened within the Constitution imperatives of Articles 24, 27,47,48 and 50 of the Constitution. 11.In looking at the substratum of the notice of motion, one cannot ignore the equality of arms in any adjudicatory process which is the core of the fair trial principles requiring that all the parties to a claim, suit, petition and more so in criminal trials must be afforded a reasonable balanced opportunity present their case without being placed at a significant disadvantage. I have had the opportunity of going through the notice of motion and the objections raised by the Respondent about the issues of being allowed to enjoy the fruits of the judgment as pronounced by the trial court. However, the question I ask, is that enough reason to extinguish the right of appeal being pursued by the intended Appellant? In my considered view, the answer is in the negative. For under the doctrine of equality of arms, it means that each party must have a reasonable opportunity to defend his or her interests may it be at the trial court or at an appeals court under conditions which do not place at a substantial disadvantage vis-a-viz his or her opponent. 12.In the instant case, I bear in mind that the judgment creditor is generally entitled to the fruits of his victory at the trial court unless the intended Appellant proves that a stay is justified to prevent special circumstances, irreparable injustice or an appeal being rendered nugatory. In this regard, the memorandum of appeal dated 25th day of March 2026 is premised on the following grounds;a.That the Learned Trial Magistrate erred in law and in fact in awarding general damages in the sum of Kshs. 380,000/= which award was excessive and not commensurate to the nature of injuries sustained.b.That the Learned Trial Magistrate erred in law and in fact in failing to consider the Appellant's submissions on the legal authorities that were guiding on the appropriate award on quantum. 13.In this respect, I again post the question will be Appellant be able to recover the decretal sum from the Respondent if he wins the case on appeal given the nature of the submissions being made by the 1st Respondent that exercise of discretion on stay of execution shall be denied. This is a road traffic accident claim and by its very nature issues of financial standing are factors which cannot be ignored by the court while addressing the strict terms required under Order 42 Rule 6 of the Civil Procedure Rules. The approach by the comparative court would the same common law synthesis of the law in the cases of Marie Makhoul and Marguerita Desir v Sabina James Alcide (SLUHCVAP No 30/2011) in which the courts marked as follows; the general rule is for no stay, as a successful litigant is entitled to the fruits of his judgment without fetter. Accordingly, there must be good reasons advanced for depriving or in essence enjoining a successful litigant from reaping the fruits of a judgment in his favour, particularly after a full trial on the merits. The modern authority on the guiding principles the court employs in exercising its discretion to grant a stay in the case of Linotype – Hell Finance Ltd v Baker where Staughton L.J opined that a stay would normally be granted if the Appellant would face ruin without the stay and that the appeal has some prospect of success. It must be emphasized that it is not enough to merely make a bald assertion to the effect that an applicant will be ruined. Rather what is required in evidenced which demonstrates that ruination would occur in the absence of a stay. The authority of Hammod Suddard Solicitors v Agrichem International Holdings is grounded in the same principle though formulated differently. In that case the court pointed out that the evidence in support of a stay needs to be full, frank and clear. They went on to state the principle thus; whether the court should exercise its discretion to grant a stay will depend on all the circumstances of the case, but the essential question is whether there is a risk of injustice to one or other or both parties if it grants or refuses a stay. In particular, if a stay is refused what are the risks of the appeal being stifled. If a stay is granted and the appeal fails, what are the risks that the Respondent will be unable to enforce the judgment. On the other hand, if a stay is refused and the appeal succeeds and the judgment is enforced in the meantime what the risks of the Appellant being able to recover any monies paid from the Respondent? similarly, in the Marguerite Desir case the court held inter alia as follows; the courts jurisdiction to grant a stay is based upon the principle that justice requires that the court should be able to take steps to ensure that its judgments are not rendered valueless. The essential question of the court is whether there is a risk of injustice to one or both parties if it grants or refused a stay. Further the evidence in support of the application for stay of execution should be full, frank and clear. The normal rule is for no stay and if a court is to consider a stay, the applicant has to make out a case by evidence which shows special circumstances for granting one. The mere existence or arguable grounds of appeal is not by itself a good enough reason. 14.Given this background of facts and corresponding material evidence as sworn in the respective affidavits together with the principles already established by the various courts as illustrative elsewhere in this ruling. This is required to look at all the circumstance of the case in considering whether there is a risk or an injustice to one or other or both parties and whether the appeal has some prospects of success. The bone of contention in this matter is an assessment of general damages based on the view taken by the learned trial magistrate and by way the memorandum of appeal intended Appellant is challenging that exercise of discretion by the trial court. There is therefore, an inherent jurisdiction of the court also being guided by the Constitution imperative on the right of appeal to grant interim stay of execution of the decree of the court pending an appeal to preserve the status quo so that in the event that the appeal is successful it will not be rendered nugatory. This stay of execution is conditioned on the intended Appellant to deposit security of Kshs. 300,000/= with the Deputy Registrar of the High Court within 30 days from today’s ruling or in the alternative, provide a bank guarantee of the same amount to be shared with the court. The costs of this application shall abide the outcome of the appeal. 15.It is therefore incumbent upon the intended Appellant to file the record of appeal for purposes of fast tracking the appeal to ensure preservation of the competing legal interest of both parties. As a result, this appeal file shall be mentioned on the 30th day of July 2026 before the Deputy Registrar of the High Court to monitor compliance. DATED AND DELIVERED AT VIHIGA VIA CTS AND EMAIL THIS 6TH DAY OF JULY 2026………………………………R. NYAKUNDIJUDGE