County Government of Kakamega v Ndungu (Civil Appeal E045 of 2026) [2026] KEHC 11938 (KLR) (31 July 2026) (Ruling)

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT SIAYA** **CIVIL APPEAL NO. E045 OF 2026** **COUNTY GOVERNMENT OF KAKAMEGA ........................ APPELLANT** * **VERSUS -** **DANIEL WANYOIKE NDUNGU ……...….. RESPONDENT/APPLICANT** **R U L I N G** 1. This is a ruling on an application dated **24/7/2026** by **Daniel Wanyoike Ndungu** (‘the applicant’). The same sought the stay of order (ii) of **Kemei** **J’s** ruling of **24/7/2026** as well as that ruling generally pending appeal to the Court of Appeal under ***Order 42 Rule 6 of the Civil Procedure Rules***. 2. The grounds therefor were set out in the body of the Motion and the Affidavit of the applicant sworn on even date. These were that; the impugned ruling stayed the orders of the trial court of **29/5/2026** and the proceedings therein generally. That the ruling allowed the respondent to proceed with the impugned procurement process. That the applicant had lodged a Notice of Appeal against the said ruling and applied for proceedings. 3. That the current appeal is a nullity having been filed out of time. That the intended appeal will be rendered nugatory and of no legal consequences if the stay is not granted. That the applicant will suffer substantial loss if the stay is not granted and that he had brought the application timeously. Finally, that he was willing to furnish such security as may be required for the due performance of the decree. 4. The **County Government of Kakamega** (‘the respondent’) opposed the application vide Grounds of Opposition dated **27/7/2026**. It contended that the applicant being neither a candidate nor tenderer in the tender, the subject of these proceedings, he was not likely to suffer any substantial loss. That as a stranger to the impugned process, the applicant had no proprietary interest that can entitle him to a stay. 5. That the application had been overtaken by events as the tender had already been awarded. That the application was res-judicata as a similar application had been dealt with and determined by **Kemei J**. That the application is incompetent and fatally misconceived that amount to an attempt to review the orders of **Kemei J** of **24/7/2026.** 6. That the balance of convenience and public interest lie against the application. That the application was vexatious and meant to frustrate an essential public service. 7. The applicant filed a supplementary affidavit which he swore on **28/7/2026** in answer to the respondent’s Grounds of Opposition. He denied the insinuations of forum shopping. He contended that the respondent was yet to notify the bidders on the outcome of the procurement process in terms of ***section 87 of the Public Procurement and Assets Disposal Act***. That in any event, the proceedings herein are a nullity since the present appeal was filed out of time. 8. The parties filed their respective submissions dated **27/7/2026**, respectively which I have considered. The applicant submitted that the application was meritorious and relied on the case of **African Merchant Assurance Co. Ltd vs Nyamai Kea & Ann Syombua Kioko (2020) eKLR**. That in the event the stay is not granted, these proceedings and the intended appeal in the Court of Appeal will be rendered nugatory and a mere academic exercise. 9. That the right of appeal should be safeguarded and not be extinguished by execution being allowed to continue. The case of **Samvir Trustee Ltd vs Guardian Bank Ltd (Milimani) HCCC No. 795 of 1997 (UR)** was relied in support of that proposition. 10. For the respondent, it was submitted that the application had not satisfied the conditions set out in ***Order 42 Rule 6(2) of the Civil Procedure Rules***. That the cornerstone of stay is substantial loss to be suffered as held in **Kenya Shell Ltd vs Kibiru (1986) KLR 410**. That since the applicant was neither a candidate nor tenderer, he was a stranger and would not suffer any substantial loss. That public interest is no substitute for substantial loss. 11. That the security offered was unparticularized, was vague and cannot be relied on. That since there is no stake in the subject contract, nothing will be rendered nugatory. The case of **Stanley Kang’ethe Kinyanjui vs Tony Ketter & 5 Others (2013) eKLR** was relied on for that proposition. 12. That the application was moot as the contract had already been awarded. That the matter was res-judicata and therefore an abuse of the court process. That the present application was similar to the one already determined by **Kemei J**. 13. That the balance of convenience and the public interest lie in rejecting the application. That the security services need to continue with over 1,300 guards being employed. Public facilities risk being left without the crucial security services. That there was nothing capable of being stayed. 14. I have considered the rival contestations. This is an application for stay pending appeal to the Court of Appeal. The principles for stay pending appeal are well known. These ae that; the applicant should establish that if the stay is not granted, he will suffer substantial loss, he must offer security and that the application must be made without unreasonable delay. 15. The Counsels spent so much in arguing about other issues not embedded on these 3 principles. They went into the merits of the intended appeal, the alleged nullity position of this appeal, the mootness of the intended appeal and may such issues. To this Court, all those were unnecessary as they do not matter in an application under ***Order 42 Rule 6(2) of the Civil Procedure Rules***. Under that provisions only, three (3) things set out above must be established. In this regard, I refrain from meandering to those unnecessary issues and limit myself to the three said principles. 16. On the first principle of timeous filing of the application, the impugned ruling was made on **24/7/2026**. The applicant not only filed the Notice of Appeal to the Court of Appeal immediately but also lodged the current application on the same day. Accordingly, the application satisfied the requirement of being brought timeously. 17. The second and most important principle is substantial loss. In **Butt vs Rent Restriction Tribunal (1979) KLR**, the Court of Appeal held: - ***“a) The power of Court to grant or refuse an application for a stay of execution is discretionary, and the discretion should be exercised in such a way as not to prevent an appeal.*** ***b) Secondly, the general principal in granting or refusing a stay is, if there is no other overwhelming hindrance, a stay must be granted so that an appeal may not be rendered nugatory should the appeal court reversed the judge’s discretion.*** ***c) Thirdly, a judge should not refuse a stay if there are good grounds for granting it merely because, in his opinion, a better remedy may become available to the applicant at the end of the proceedings.*** ***d) Finally, the Court in exercising its discretion whether to grant or refuse an application for stay will consider the special circumstances and its unique requirements. The Court in exercising its power under Order XLI Rule 4(2) (b) of the Civil Procedure Rules, can order security upon application by either party or on its motion. Failure to security of costs as ordered will cause the order of stay of execution to lapse.”*** 1. As to what constitutes substantial loss, in **James Wangalwa & Another vs Agnes Naliaka Cheseto (2012) eKLR**, the Court held that: - ***“No doubt, in law, the fact that the process of execution has been put in motion, or is likely to be put in motion, by itself, does not amount to substantial loss. Even when execution has been levied and completed, that is to say, the attached properties have been sold, as is the case here, does not in itself amount to substantial loss under Order 42 Rule 6 of the CPR. This is so because execution is a lawful process. The applicant must establish other factors which show that the execution will create a state of affairs that will irreparably affect or negate the very essential core of the applicant as the successful party in the appeal ... the issue of substantial loss is the cornerstone of both jurisdictions. Substantial loss is what has to be prevented by preserving the status quo because such loss would render the appeal nugatory.”*** 1. In the present case, the applicant deposed as follows in his supporting affidavit: - ***“7. That the final orders of this Honourable Court on my application and those of the Court of Appeal will not only be rendered nugatory but also of no legal consequence if a stay order is not granted at this stage.*** ***8. That there thus exists sufficient cause to order stay of execution of the ruling in this matter as the applicant stands to suffer irreparable and/or substantial loss if a stay is not granted by this Honourable Court.*** ***9. That this application has been made in a timely manner without unreasonable delay.*** ***10. That the applicant is willing to furnish this Honourable Court with the security for the due execution of the decree pending the hearing and determination of their appeal.”*** 1. Apart from the sweeping statement in the above noted paragraph 8 of the supporting affidavit, nowhere else in both the supporting and supplementary affidavit did the applicant disclose the nature and extent of the loss to be suffered that can be categorised as substantial. In applications for stay, it is not enough that the applicant deposes that he will suffer substantial loss, but must specify the nature of the alleged loss. That is the only way the Court can exercise its discretion in his favour. Substantial loss is not to be implied. It must fall from the lips of an applicant and be established as such. 2. In this case, the subject matter of the proceedings is a tender for the supply of security services to the respondent. The applicant alleges various irregularities and infractions in a Plaint filed in **Madiany Magistrate’s Court**. By filing a suit by way of a Plaint, the matter was brought under the rearm of private law rather than public interest, which ordinarily should have been by either Judicial Review or Constitutional Petition before the High Court. 3. Having chosen to bring the matter under the purview of private law, it was incumbent upon the applicant to show a personalized substantial loss that he will suffer if the stay is not granted. This Court notes that it is not in dispute that the applicant was neither a candidate nor a tenderer in the impugned tendering process. Obviously, as **Kemei J** found out in his ruling of **24/7/2026**, the applicant did not and does not have any proprietary interest on the process for which he can claim that he will suffer substantial loss. The loss to be suffered is public in nature which can only be defended and enforced through public law under public interest litigation of which the suit in the lower court is not one. 4. Having chosen to litigate under private law, the applicant should or is expected to bring himself within the purview of private law remedies. A public-spirited person seeking to enforce public interest, cannot purport to do so through private law litigation, he has to do it through public law purview where there is a wide range of remedies that can be elastically granted under the constitutional imperatives in our constitution. 5. Accordingly, the applicant did not prove or establish what substantial loss he stood to suffer if the stay is not granted. On this, the Court is influenced by the fact that it has to weigh between the public interest and private interest in this case. **Kemei J** had found that it was in the public interest that the security services tendered for be actualized as opposed to the private interests of the applicant which had not been expressly disclosed or proved. 6. Accordingly, this Court finds that the applicant was unable to establish that he would suffer any substantial loss if the stay is not granted to warrant the granting of the stay sought. 7. The other aspect that militates against granting a stay order is that, such order will affect 3rd parties who were not joined in these proceedings. It must be recognized that there were bidders in the subject tender. None of them was enjoined in these proceedings because they were brought under private law. Had the proceedings been under public law, the tenderers would have been enjoined as interested parties. They are not. Any orders granted will definitely in one way or another affect them thereby infringing on the well known principle of not condemning a party without him first being heard. 8. The last condition is security. Although the applicant offered security, there is no amount of security that can be able to avert the possible damage to be suffered where a public entity is unable to offer security services to its public facilities for an unforceable duration. The contract that was in existence was said to have expired in **May, 2026**. It is not known when either the present appeal or the intended appeal in the Court of Appeal will be determined. The same would be at an unforeseeable future. 9. Accordingly, in view of the foregoing, the application dated **24/7/2026** is found to be without merit and is hereby dismissed. The stay orders made on **28/7/2026** are hereby discharged. It is so ordered. **DATED** and **DELIVERED** at **KISUMU** this **31st** day of **July, 2026.** **A. MABEYA, FCI Arb** **JUDGE**