https://new.kenyalaw.org/akn/ke/judgment/kecopt/2026/305

 **REPUBLIC OF KENYA** **IN THE CO-OPERATIVE TRIBUNAL AT NAIROBI** **TRIBUNAL CASE NO. 765 OF 2025** **(Coram: Hon. J. Mwatsama - Chairperson, Hon. B. Sawe - Member, Hon. F. Lotuiya - Member, Hon. M. Chesikaw - Member and Hon. P. Aol - Member.)** **EASTLANDS BIASHARA SACCO SOCIETY** **LIMITED ...................………………...…........ CLAIMANT/RESPONDENT** ***VERSUS*** **TABITHA MUHIA .................................... 1ST RESPONDENT/APPLICANT** **MAXWEL OMUSE ………………...……. 2ND RESPONDENT/APPLICANT** **PENINA KARIUKI …………………….… 3RD RESPONDENT/APPLICANT** **RULING** 1. The Application for determination is Notice of Motion dated 12/5/26 Seeking for orders: * + 1. Spent. 2. This Honourable Tribunal be pleased to grant a Temporary Stay of Execution and/or Stay of the Warrant of Arrest issued against the 3rd Respondent/Applicant pending the hearing and determination of this Application *inter-partes.* 3. This Honourable Tribunal be pleased to suspend, lift and/or set aside the Warrant of Arrest issued against the 3rd Respondent/Applicant dated 30th April 2025 together with all consequential execution proceedings arising therefrom. 4. This Honourable Tribunal be pleased to declare that the execution process undertaken against the 3rd Respondent/Applicant without issuance and service of a proper Notice to Show Cause is irregular, unlawful, and contrary to the provisions of Order 22 Rule 18 of the Civil Procedure Rules. 5. This Honourable Tribunal be pleased to issue an order restraining the Claimant/Decree Holder, its agents and/or servants from harassing, intimidating, threatening arrest and/or unlawfully coercing the Applicant into settling the decretal amount pending the hearing and determination of this Application. 6. This Honourable Tribunal be pleased to issue such further orders as it may deem just and expedient in the circumstances for the ends of justice. 7. The costs of this Application be in the cause. 1. The Application is supported by the Affidavit of Penina Kariuki sworn on 12/5/26 who avers she was never served with the Notice to Show Cause prior to issuance of Warrant of Arrest contrary to Order 22 Rule 18 of Civil Procedure Rules. She avers all through the dispute was being pursued against the 2nd Respondent Maxwell Omuse. She states no clear allegations of theft of misappropriation or unlawful acquisition of Sacco funds were made against her. The 3rd Respondent states she was not informed of any default judgment against her. She further states the Claimant chairman had prepared an Affidavit of Withdrawal of suit against her. She believes the Claimant is improperly using the Warrants of Arrest to coerce and intimidate her into settling amount she does not owe. 1. The Claimant/Respondent filed a Replying Affidavit sworn by by James Mecha on 1/6/26. He stated he was Chairman of Claimant/Respondent and opposes the Notice of Motion dated 12/5/26 and would like the same to be dismissed with costs. The Claimant/Respondent avers the Applicant was served with summons to enter appearance to defend claim on 14/12/15 but neglected to file a Defence. At all time during the proceedings the 3rd Respondent/Applicant was the Chairlady of the Sacco, 2nd Respondent was Secretary and 1st Respondent was the Treasurer. The claim arose from their roles as officials and allegations of misappropriation of funds were directed at their capacities as office bearers. 2. Following entry of judgment, the 3rd Respondent/Applicant commenced Garnishee Proceedings in execution of the decree and she was served with Notice of Motion Garnishee proceedings as evidenced in Affidavit of Service sworn on 5/6/2017 and 20/6/2017. The Respondent aver the Respondent/Applicant has not challenged the judgment or sought to set aside, appears or raise complaint on the service. 1. The Applicant’s assertions of the Claim being withdrawn against her are unsubstantiated and cannot override the subsisting judgment. Her application is calculated to attempt a delay and obstruct Claimant/Respondent from enjoying the fruits of its judgment. As such the Notice of Motion dated 12/5/2026 be dismissed with costs. Parties were to file written submissions. Claimant/Respondent filed written submissions dated 16/7/26 and Respondent/Applicant filed written submissions dated 12/6/26. The 3rd Respondent/Applicant filed List of Authorities which we also consider dated 12/6/26. 2. Having considered the Application, Affidavit in support and Replying Affidavit by Claimant/Respondent the issue for determination is whether a Temporary Stay of Execution and or Stay of the Warrant of Arrest against 3rd Respondent/Applicant can be issued? *Order 22 Rule 52 of Civil Procedure Rules* grants the execution of decrees and orders. *Order 22 Rule 52* provides for: ***“Upon receipt of a valid notice and application as provided under Rule 51, the court may order a Stay of Execution for not more than 14 days and shall call upon the attaching creditor by notice of writing to intimate to the court and to all the parties in writing within 7 days whether he proposes to proceed with the attached and execution thereunder wholly or in part”.*** We ask ourselves the following questions: 1. Is there substantial loss to be met unless the order is met? 2. Has the Application been made within unreasonable delay? 3. Is there security being offered? 4. In the case of **Kenya Shell Ltd -vs- Kibiru's & Another [1986] KLR 410 (1986) KECA 94(KLR).** It was stated: ***"Substantial loss is what has to be prevented by preserving the status quo because the loss would render the appeal nugatory".*** The 3rd Respondent/Applicant has not given any evidence to show what harm she is likely to suffer if the stay orders are not granted in her favour. Further the Applicant is requesting for stay orders but has not indicated stay orders pending what action. The Applicant has not shown any action taken against the judgment of the Tribunal. The 3rd Respondent/Applicant is not indicating whether she is appealing, whether she wants to set aside judgment. A Stay of Execution cannot just be issued without any subsequent flow of events order. 1. The issue of delay of the Application the 3rd Respondent/Applicant waited until Warrant of Arrest were issued for them to file the Application. Unfortunately, the 3rd Respondent/Applicant did not enter appearance, however, from her Affidavit in support of the Application, it is clear that the Applicant knew of the case but slept on her right. When she mentioned about the committee members deliberating on the case and their intentions to withdraw the case against her clearly shows her knowledge of the case. She therefore cannot turn and state she was not aware. The Court of Appeal in the case of **Butt -vs- Rent Restriction Tribunal [1982]:** ***“The court has unfiltered discretion to grant a Stay of Execution. The general principle is that a successful litigant is entitled to the fruits of judgment, but the court may grant a Stay of sufficient cause”.*** 1. In light of the foregoing, we are not convinced that the Applicant has sufficient ground to be granted the stay orders. In the case of **James Wangalwa & Another -vs- Agnes Naliaka Cheseto [2012] eKLR:** ***“No doubt in law, the fact that the process of execution has been put in mention, or is likely to be put in mention 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 Civil Procedure Rules. 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 affection that will irreparably affect or negate the very essential care of the applicant … 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. Stay of Execution being a discretionary order, the Tribunal is expected to balance out the interests of a successful litigant and the Applicant’s right to breath. The right of the Applicant must be weighed against that of the Claimant/Respondent who have a judgment since 2015 in their favour. There must be a just cause to deprive the Claimant off that right. In this instance no justifiable cause has been given. Bearing the above in mind the Applicant has not met the threshold if at all to be granted any Stay of Execution in a blanket form. No appeal filed, no setting aside Application prayers has been made. This matter needs to come to rest. Application upon Application being filed to defend the Claimant from enjoying the fruits of their judgment. **UPSHOT** The Notice of Motion Application dated 12/5/2026 is found to be without merit and dismissed with costs. File ordered as closed. Ruling dated and delivered *virtually* at **Nairobi** this **23rd** day of **July, 2026.** **Hon. J. Mwatsama Chairperson Signed 23/7/2026** **Hon. B. Sawe Member Signed 23/7/2026** **Hon. Fridah Lotuiya Member Signed 23/7/2026** **Hon. M. Chesikaw Member Signed 23/7/2026** **Hon. P. Aol Member Signed 23/7/2026** Court Assistant – Koki G. K. Atuti advocate for the Claimant - No appearance Ngeno advocate for the Respondent/Applicant **Hon. J. Mwatsama Chairperson Signed 23/7/2026**