https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9553

Del Monte Kenya Ltd v Bagdas Auto Spares Ltd (Miscellaneous Application E077 of 2026) [2026] KEHC 9553 (KLR) (Commercial and Tax) (25 June 2026) (Ruling) Neutral citation: [2026] KEHC 9553 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Commercial Courts) Commercial and Tax Miscellaneous Application E077 of 2026 MO Ado, J June 25, 2026 Between Del Monte Kenya Limited Applicant and Bagdas Auto Spares Limited Respondent Ruling Background 1.Before the Court is the Notice of Motion dated 30th January 2026 in which the Applicant seeks the following principal orders:i.That this Honourable Court be pleased to grant orders of stay of execution of the ruling/decree of Hon. Lucy Njora in Milimani CMCC No. 1245 of 2012 delivered on 11th November 2025 pending the hearing and determination of the Applicant's intended appeal.ii.That the Applicant be granted leave to appeal out of time against the whole ruling of Hon. Lucy Njora in Milimani CMCC No. 1245 of 2012 delivered on 11th November 2025.iii.That the time for filing the appeal be enlarged and the Memorandum of Appeal annexed to the application be deemed as duly filed and served within time. 2.The application is premised on the grounds appearing on its face and the Supporting Affidavit sworn by the Applicant's representative. The Applicant contends that the trial court had earlier found that it was unable to ascertain the sums due to either party owing to accounting complexities and consequently directed the parties to file statements of accounts and undertake a reconciliation exercise. 3.The Applicant avers that notwithstanding those directions, the trial court subsequently entered judgment on the basis of a Request for Judgment dated 22nd February 2022 without determining the reconciliation exercise. According to the Applicant, judgment was entered in its absence and without notice, resulting in an award against it comprising Kshs. 456,320.75 together with accountant's fees, taxes, costs and interest. 4.The Applicant states that it only became aware of the ruling upon proclamation by auctioneers on 26th January 2026, by which time the statutory period for filing an appeal had already lapsed. It contends that the intended appeal raises arguable issues, including whether the trial court erred in upholding a request for judgment after issuing directions for reconciliation of accounts and whether it failed to consider the Applicant's accountant's report dated 9th April 2022. 5.The Applicant further states that execution has commenced through Beta Base Auctioneers who have attached motor vehicles essential to its business operations. It maintains that unless stay is granted, it will suffer substantial loss and the intended appeal will be rendered nugatory. The Applicant expresses its willingness to deposit the decretal sum in a joint interest-earning account as security. 6.The application is opposed through a Replying Affidavit sworn on 13th February 2026 by the Respondent's advocate, Mr. David Nyangena. 7.The Respondent deposes that after being served with warrants of attachment, the Applicant filed an application before the subordinate court on 29th January 2026 seeking review and stay of the orders issued on 11th November 2025. According to the Respondent, the said application remains pending determination. 8.The Respondent contends that despite pursuing review before the subordinate court, the Applicant subsequently moved this Court seeking leave to appeal out of time and stay of execution, thereby engaging in forum shopping and abusing the court process. 9.The Respondent further states that the matter came up on numerous occasions and that the Applicant had been duly notified but repeatedly failed to attend court. It is averred that although directions had initially been scheduled for 17th October 2025, the court was not sitting and ultimately proceeded to issue directions and deliver its ruling on 11th November 2025. 10.The Respondent additionally deposes that the Applicant frustrated efforts aimed at reconciling the parties' accounts and repeatedly failed to cooperate in the accounting process. It therefore maintains that the request for final judgment was justified and that the ruling was properly founded on the circumstances of the case. 11.The Respondent further contends that no satisfactory explanation has been offered for the delay in lodging the appeal and that the intended appeal lacks merit. The Court is consequently urged to dismiss the application with costs. Analysis and Determination 12.The Applicant filed written submissions dated 26th March 2026 and 10th April 2026, while the Respondent filed submissions dated 31st March 2026. I have considered the application, the affidavits on record, the annexures thereto and the rival submissions. 13.The principal issue falling for determination is whether the Applicant has established a basis for the grant of leave to appeal out of time against the ruling of Hon. Lucy Njora (SPM) delivered on 11th November 2025 in Milimani CMCC No. 1245 of 2012. 14.The record shows that by a ruling delivered on 11th November 2025, the learned trial magistrate allowed the Respondent's request for judgment and entered judgment in favour of the Respondent for Kshs. 465,320.75 together with accountant's costs of Kshs. 100,000, a further Kshs. 40,000 for reconciliation services rendered, Kshs. 6,400 being tax thereon, costs of the suit and interest at court rates from the date of the ruling until payment in full. 15.The Applicant contends that it was unaware of the delivery of the ruling and only learnt of its existence on 26th January 2026 when its motor vehicles were proclaimed by auctioneers. It therefore argues that the time prescribed for filing an appeal had already expired. 16.The Respondent, however, takes the position that the Applicant has already elected to pursue the remedy of review before the subordinate court and cannot simultaneously pursue an appeal arising from the same decision. 17.I have examined the material placed before the Court and note that the Applicant filed an application dated 28th January 2026 before the subordinate court seeking review and/or setting aside of the ruling delivered on 11th November 2025. A copy of that application is annexed to the Respondent's Replying Affidavit. 18.It is therefore not disputed that before approaching this Court, the Applicant had already invoked the review jurisdiction of the subordinate court in relation to the impugned ruling. There is no evidence that the said review application has been withdrawn (by the Applicant) or otherwise dealt with by the Court. 19.Section 80 of the Civil Procedure Act provides: 20."Any person who considers himself aggrieved—(a)by a decree or order from which an appeal is allowed by this Act, but from which no appeal has been preferred; or(b)by a decree or order from which no appeal is allowed by this Act,may apply for a review of judgment to the court which passed the decree or made the order, and the court may make such order thereon as it thinks fit." 21.Similarly, Order 45 Rule 1(1) of the Civil Procedure Rules provides:“Any person considering himself aggrieved—(a)by a decree or order from which an appeal is allowed, but from which no appeal has been preferred; or(b)by a decree or order from which no appeal is hereby allowed,and who from the discovery of new and important matter or evidence which, after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the decree was passed or the order made, or on account of some mistake or error apparent on the face of the record, or for any other sufficient reason, desires to obtain a review of the decree or order, may apply for a review of the judgment to the court which passed the decree or made the order without unreasonable delay." 22.The import of the foregoing provisions is that the remedies of review and appeal are mutually exclusive in relation to the same decree or order. A party who elects to seek review of a decision cannot simultaneously pursue an appeal against that same decision. 23.In the present case, the Applicant first moved the subordinate court by filing an application seeking review and/or setting aside of the ruling delivered on 11th November 2025. Thereafter, it filed the present application seeking leave to appeal against the same ruling. 24.In my view, it amounts to an abuse of the court process for a litigant to simultaneously pursue both a review application and an appeal in respect of the same decision. Having elected to invoke the review jurisdiction of the subordinate court, and in the absence of evidence that the review application has been withdrawn or otherwise dealt with, the Applicant cannot at the same time seek leave to challenge the same ruling on appeal. 25.In the circumstances, I find no basis upon which to grant the prayer for enlargement of time to appeal out of time. 26.Once the prayer for leave to appeal out of time fails, the prayer for stay of execution pending the intended appeal equally cannot stand and must fail. 27.The upshot is that the Notice of Motion dated 30th January 2026 is devoid of merit and is hereby dismissed. 28.The Respondent shall have the costs of the application. 29.It is so ordered. DATED, SIGNED, AND DELIVERED AT NAIROBI THIS 25TH DAY OF JUNE 2026HON. MR. JUSTICE MOSES ADOJUDGE OF THE HIGH COURTIn the Presence of:Moses C/A……………… for the Applicant……………for the Respondent