https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7236

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT NAROK** **CIVIL APPEAL NO. E004 OF 2026** **(CORAM: HON. CHARLES M. KARIUKI – J)** **ENDEAVOUR CREDIT LIMITED...................................................................... APPLICANT** **-VERSUS** **MOSES CHEGE NGANGA............................................................................... RESPONDENT** **AND** **JOYCE WANGUI WACHIRA……………………………………… INTERESTED PARTY** **RULING** 1. **INTRODUCTION** 2. This ruling concerns the Applicant’s Notice of Motion dated 16th February 2026 seeking, inter alia, orders for stay of execution pending appeal, lifting of attachment, preservation of motor vehicles registration numbers KBV 317X, KCD 070P and KCC 838J, and injunctive relief restraining further attachment, sale or transfer of the said motor vehicles pending the hearing and determination of the intended appeal arising from the ruling delivered on 13th February 2026 in Narok CMCC No. E037 of 2022. 3. The dispute arises from execution proceedings instituted by the Respondent against the Interested Party in satisfaction of a decree issued in Narok CMCC No. E037 of 2022. In the course of execution, the Respondent proclaimed and attached the aforesaid motor vehicles, which the Applicant claims were jointly registered in the names of the Applicant and the Interested Party as security for credit facilities allegedly advanced to the Interested Party and/or Paddy Micro Investment Limited under a hire purchase and financing arrangement. 4. Aggrieved by the attachment and intended sale of the vehicles, the Applicant filed objector proceedings before the subordinate court asserting proprietary and equitable interests in the attached assets pursuant to the Traffic Act, the Hire Purchase Act and the provisions of the Movable Property Security Rights Act, 2017. The Applicant maintained that the vehicles constituted collateral securing an outstanding financial facility and that execution against them infringed upon its constitutional and statutory rights as a secured creditor. 5. Upon hearing the objector's proceedings, the subordinate court dismissed the Applicant’s applications through the ruling delivered on 13th February 2026. Dissatisfied with that determination, the Applicant lodged the present appeal and contemporaneously filed the instant application seeking a stay of execution and preservation of the subject motor vehicles pending determination of the intended appeal. 6. The application is opposed by the Respondent, who contends that the Applicant failed to establish any enforceable equitable or proprietary interest in the attached vehicles, failed to demonstrate substantial loss, and failed to satisfy the conditions for the grant of a stay under Order 42 Rule 6 of the Civil Procedure Rules. The Respondent further argues that the ruling appealed from constituted a negative order incapable of being stayed, and that the motor vehicle registration number KBV 317X had already been sold at public auction before the hearing of the present application. 7. The court has carefully considered the Notice of Motion, the affidavits filed by the respective parties, the annexures thereto, and the written submissions together with the authorities relied upon by counsel for the parties. The issues for determination are whether the Applicant has satisfied the legal threshold for the grant of a stay of execution pending appeal, and whether the preservative and injunctive orders sought ought to issue in the circumstances of this case. 8. **PLEADINGS** 9. **The Notice of Motion dated 16th February 2026** 10. The Notice of Motion dated 16th February 2026 was brought under Sections 1A, 1B, and 3A of the Civil Procedure Act, Order 22 Rule 22, Order 42 Rule 6, and Order 51 Rule 1 of the Civil Procedure Rules. Through the application, the Applicant sought the following orders: 11. *This Application be certified as urgent and be heard ex-parte in the first instance.* 12. *This Honourable Court be pleased to stay the Ruling of Hon. Nancy N. Barasa delivered on the 13th day of February 2026 in Narok Cmcc No. E037 of 2022, Moses Chege Nganga versus Joyce Wangui Macharia, pending hearing and determination of this application.* 13. *That there be stay of execution of the decree dated 26th February 2025 and all consequential orders including the warrants of attachment and sale issued on 26th February 2025, the Proclamation Notices dated; 28th February 2025, for the attachment of sale of motor vehicle registration KBV 317X Isuzu Truck by Sanjomu Auctioneers and 5th August 2025 for the attachment sale of motor vehicles registration number KCD 070P and KCC 838J by Mutrix Auctioneers, pending the hearing and determination of this application.* 14. *There be stay of execution of the decree dated 26th February 2025 and all consequential orders including the warrants of attachment and sale issued on 26th February 2025, the proclamation notices dated 28th February 2025, for the attachment of sale of motor vehicle registration KBV 317X Isuzu Truck by Sanjomu Auctioneers and the one 5th August 2025 for the attachment sale of motor vehicles registration number KCD 070P and KCC 838J by Mutrix Auctioneers, pending the hearing and determination of the intended Waruiru Karuku and Mwangale Advocates 4 | Page Appeal against the ruling delivered on 13th February 2026, preserving the Applicant's assets and maintaining the status quo to prevent the appeal from being rendered nugatory.* 15. *Pending the hearing and determination of this application, this Honourable Court do issue and direct the Respondent and its agent to unconditionally deliver the attached motor vehicles, and in default, the Applicant is to be ordered to repossess them through the assistance of the Officer Commanding Station, Narok Police Station and the cost is to be borne by the Respondent.* 16. *This Honourable Court be pleased to lift the attachment of the Applicant’s jointly owned motor vehicle registration number KBV 317X Isuzu Truck described in the Proclamation dated 28th February 2025 by Sanjonum Auctioneers and KCD 070P and KCC 838J described in the Proclamation dated 5th August 2025 by Mutrix Auctioneers.* 17. *There be a declaration that the attachment, proclamation and intended sale of the suit vehicles are unlawful, irregular, unprocedural and in violation of the Applicant's proprietary rights under Article 40 of the Constitution of Kenya, 2010.* 18. *Costs of this application be provided for.* 19. The application was premised because the Applicant was not a party to the primary suit and had no prior notice of the proceedings before the attachment of the vehicles, which were allegedly jointly registered in the names of the Applicant and the Interested Party as security for credit facilities advanced by the Applicant. It was contended that the ruling of 13th February 2026 dismissing the Applicant’s earlier applications dated 19th March 2025 and 27th August 2025 occasioned grave prejudice to the Applicant’s equitable and proprietary interests in the attached vehicles. 20. The Applicant further averred that unless execution were stayed, the intended appeal would be rendered nugatory because the motor vehicles constituted security for an outstanding credit facility amounting to Kshs. 30,000,000/= advanced to the Interested Party. According to the Applicant, the sale of the vehicles would occasion irreparable loss that cannot be compensated by damages. The Applicant maintained that the intended appeal was arguable and raised substantial issues, including alleged violations of the rules of natural justice, infringement of property rights guaranteed under Article 40 of the Constitution, and contravention of the provisions of the Movable Property Security Rights Act, 2017. Lastly, the Applicant asserted that the balance of convenience favoured preservation of the status quo pending determination of the intended appeal. 21. The application was supported by the affidavit of Kennedy Mbithi, sworn on 16th February 2026, together with the annexures thereto 22. **The Supporting Affidavit sworn on 16th February 2026** 23. The Supporting Affidavit, sworn on 16th February 2026 by Kennedy Mbithi, the Senior Finance Manager of the Applicant, Endeavour Credit Limited, was filed in support of the Applicant’s application for stay of execution pending appeal. The deponent stated that he was duly authorised to swear the affidavit on behalf of the Applicant, a licensed non-bank financial institution incorporated in Kenya. 24. The deponent averred that the Applicant advanced credit facilities to the Interested Party, Joyce Wangui Wachira, pursuant to a Letter of Offer dated 10th August 2020. The facilities were secured through the joint registration of several motor vehicles, including motor vehicle registration numbers KBV 317X (Isuzu Truck), KCD 070P, and KCC 838J, together with thirty-seven other vehicles. He deposed that the joint registration was effected through the National Transport and Safety Authority (NTSA) to perfect the Applicant’s security interest under the provisions of the Movable Property Security Rights Act, 2017. According to the deponent, no notice of cessation or discharge had ever been registered since the loan facility remained outstanding and unpaid. 25. It was further deposed that the Respondent instituted Narok CMCC No. E037 of 2022 against the Interested Party and obtained judgment on 30th June 2022 for a decretal sum of Kshs. 1,119,199.90 together with interest and costs, culminating in a decree dated 26th February 2025. Following the decree, the Respondent instructed auctioneers to attach the subject motor vehicles in execution proceedings. In particular, Sanjomu Auctioneers proclaimed motor vehicle registration number KBV 317X through a notice dated 28th February 2025, while Mutrix Auctioneers later proclaimed motor vehicle registration numbers KCD 070P and KCC 838J through a proclamation notice dated 5th August 2025. 26. The deponent stated that upon learning of the attachments, the Applicant promptly filed Objection Proceedings challenging the attachment and intended sale of the vehicles. He explained that the Applicant filed an application dated 19th March 2025, objecting to the attachment of motor vehicle registration number KBV 317X, asserting that the vehicle was jointly owned and constituted collateral for an outstanding facility of Kshs. 30,000,000/=. The Applicant allegedly sought orders for stay of execution, lifting of the attachment, release or repossession of the vehicle with police assistance, and declarations that the attachment was unlawful and in breach of natural justice. Temporary stay orders were subsequently issued on 25th March 2025 pending the determination of the application. 27. According to the affidavit, the Respondent opposed the application through a replying affidavit sworn on 8th April 2025, contending that the attachment was lawful and asserting that the loan facility had lapsed upon expiry of the thirty-six-month term on 10th August 2023. The deponent maintained that the Respondent failed to provide evidence of repayment of the facility or proof of discharge of the Applicant’s registered interest with NTSA. 28. The deponent further stated that after the Respondent caused attachment of motor vehicles registration numbers KCD 070P and KCC 838J through Mutrix Auctioneers, the Applicant similarly filed another Objector Application dated 27th August 2025, challenging the attachment of the said vehicles based on joint ownership and subsisting security interests. The Respondent also opposed that application through a replying affidavit sworn on 22nd October 2025, reiterating allegations that the attachment was proper and that the facility had lapsed. 29. It was deposed that the two Objector Applications were consolidated and heard before Hon. Nancy N. Barasa in Narok CMCC No. E037 of 2022. The learned Magistrate delivered a ruling on 13th February 2026, dismissing both applications on grounds that included the perceived lapse of the facility and the procedural propriety of the proclamations. The Applicant contended that the ruling occasioned grave injustice by disregarding the Applicant’s documentary evidence and statutory protections accorded to secured creditors. 30. The deponent maintained that the Applicant had never been a party to the primary suit and had not been served with any pleadings or notices before the attachment of the vehicles. He asserted that the Applicant only became aware of the execution proceedings upon receipt of the proclamation notices issued by the auctioneers. The Applicant, therefore, complained that the attachment violated the rules of natural justice and procedural fairness. 31. Kennedy Mbithi further deposed that the Applicant intended to appeal against the ruling of 13th February 2026 on grounds that the learned Magistrate erred in law and fact by failing to recognise the Applicant’s superior proprietary interest as a joint registered owner and secured creditor under the Movable Property Security Rights Act and Article 40 of the Constitution. The Applicant also faulted the trial court for allegedly disregarding the lack of notice before attachment, accepting unsupported claims that the facility had lapsed, and overlooking that the vehicles were essential business assets tied to the outstanding credit facility. 32. The deponent further asserted that the execution process was unlawful and irregular because it disregarded the Applicant’s superior legal and equitable interests in the vehicles, contrary to Section 28 of the Movable Property Security Rights Act. He averred that unless execution were stayed, the intended appeal would be rendered nugatory because the vehicles were subject to imminent sale by public auction, thereby exposing the Applicant to losses exceeding Kshs. 15,000,000/= in collateral value. He added that the Applicant stood to suffer substantial and irreparable loss due to the loss of security for the outstanding Kshs. 30,000,000/= facility, disruption of business operations, and infringement of constitutional property rights under Article 40. 33. Lastly, the deponent stated that the Respondent would suffer no prejudice if stay orders were granted since the decretal sum could still be recovered from other assets belonging to the Interested Party. He maintained that the balance of convenience favoured preservation of the status quo, prevention of unlawful execution, and protection of the Applicant’s rights pending hearing and determination of the intended appeal. 34. **The Replying Affidavit sworn on 24th February 2026** 35. The Replying Affidavit, sworn on 24th February 2026 by Moses Chege Ng’ang’a, was filed in opposition to the Applicant’s Notice of Motion dated 16th February 2026. The deponent stated that he was the Respondent in the matter and was therefore conversant with the facts of the case. He averred that he had read and understood the application together with the supporting affidavit sworn by Kennedy Mbithi on behalf of the Applicant, Endeavour Credit Limited, and wished to oppose the same. 36. The Respondent acknowledged that the Letter of Offer annexed by the Applicant comprised thirty-eight motor vehicles, including the proclaimed vehicles, but maintained that the loan facility lapsed on 10th August 2023. He contended that the Applicant had failed to annex evidence proving that the facility remained unpaid or demonstrating the extent of any outstanding loan balance. According to the deponent, the Applicant had not shown how the sale of the proclaimed vehicles would prejudice recovery of the alleged debt and was therefore undeserving of the court’s discretionary relief. 37. The deponent further asserted that motor vehicle registration number KBV 317X belonged to the Interested Party and alleged that the loan documents attached by the Applicant referred to a different entity known as Paddy Micro Investment Limited. He maintained that the proclamation of motor vehicle registration number KBV 317X by Sanjomu Auctioneers on 28th February 2025 was lawful and proper. He further disclosed that following dismissal of the Applicant’s objector applications on 13th February 2026, the vehicle was sold on 23rd February 2026 and annexed a certificate of sale in support thereof. 38. The Respondent deposed that under Kenyan law, joint registration of a motor vehicle constituted only rebuttable evidence of ownership and did not automatically establish equitable or proprietary interest. He contended that the Applicant’s claim that the vehicle was valued at Kshs. 5,000,000/= was unsupported because no valuation report or documentary proof had been produced. According to the Respondent, the burden of proving equitable interest rested solely upon the Applicant, a burden the Applicant failed to discharge before the subordinate court, leading to dismissal of the objector proceedings. 39. The deponent further maintained that the proclamations against motor vehicles registration numbers KCD 070P, KCC 838J and KBV 317X were lawful and that the Applicant had failed to demonstrate any enforceable equitable interest in the vehicles. He emphasised that the subordinate court correctly held that equitable interests must be established by evidence, not mere allegations. In his view, the ruling of the subordinate court was sound, judicious and legally justified. 40. The Respondent further averred that the Applicant had been accorded an opportunity to ventilate its objections before the subordinate court, but failed to persuade the court. He therefore asserted that the intended appeal was unarguable and founded largely on sentiment rather than legal merit. He denied that the Applicant would suffer irreparable loss if stay orders were denied and urged the court not to speculate on alleged losses that had not been proved. 41. The deponent also argued that the Applicant had failed to register the alleged movable security interest in accordance with the provisions of the Movable Property Security Rights Act, 2017. Consequently, such interest could not be enforced against third parties. He accused the Applicant of misleading the court by alleging unrecoverable losses of Kshs. 15,000,000/= while at the same time valuing the proclaimed vehicle at Kshs. 5,000,000/=. 42. Further, the Respondent referred to clause 3.6 of the hire purchase agreement, which allegedly described the hirer’s obligations as a continuing liability unaffected by loss, theft or destruction of the assets. He pointed out that, despite motor vehicle registration number KBV 317X having been attached and stored by the auctioneers for approximately 12 months, the Applicant had not alleged any default in instalment payments by the Interested Party. According to the Respondent, this demonstrated that the Applicant had not suffered any real prejudice and that no equitable interest had been adversely affected. 43. The deponent also relied on clause 8 of the hire purchase agreement, which allegedly provided for penalties for delayed payments, and argued that the Applicant had not demonstrated that it ever invoked those provisions after the alleged lapse of the facility in 2023. He urged the court to draw an adverse inference against the Applicant for failure to produce proof of outstanding indebtedness or enforcement measures. 44. The Respondent further stated that although motor vehicles registration numbers KCD 070P and KCC 838J had been proclaimed, they had not been physically attached because the Interested Party, allegedly acting in collusion with the Applicant, concealed the vehicles. He additionally observed that the Applicant had not instituted proceedings against the auctioneers despite alleging illegality in the attachment process. 45. The deponent further contended that the Letter of Offer covered thirty-eight vehicles and therefore attachment of only three vehicles could not occasion irreparable loss. He accused the Applicant of dishonesty for failing to disclose the exact outstanding amount allegedly secured by the vehicles and argued that the Applicant’s claim that a debt of Kshs. 30,000,000/= was secured by a single vehicle valued at Kshs. 5,000,000/= raised new issues that had not been canvassed before the subordinate court. 46. Lastly, the Respondent averred that the Applicant would not suffer prejudice incapable of compensation by damages if the stay of execution were denied. He further argued that it was misleading for the Applicant to characterise valid court orders as illegal since court orders are presumed lawful unless set aside. He therefore urged the court to find that the Applicant had failed to prove any equitable interest capable of protection. He prayed that the application dated 16th February 2026 be dismissed with costs. 47. **The Further Affidavit sworn on 25th February 2026** 48. The Further Affidavit sworn on 25th February 2026 by Kennedy Mbithi, the Senior Finance Manager of the Applicant, Endeavour Credit Limited, was filed in further support of the Applicant’s Notice of Motion dated 16th February 2026 and in response to the Replying Affidavit sworn by the Respondent on 24th February 2026. The deponent stated that he was duly authorised to swear the affidavit on behalf of the Applicant and was fully conversant with the matters deponed therein. 49. The deponent reiterated that on 13th February 2026, the subordinate court dismissed the Applicant’s objector proceedings relating to motor vehicles registration numbers KBV 317X Isuzu Truck, KCD 070P and KCC 838J. Being dissatisfied with the ruling, the Applicant promptly lodged a Notice of Appeal and filed an application for a stay of execution pending appeal, dated 16th February 2026, before the High Court. He stated that although the matter was placed before the court, no interim stay orders were granted at that stage, and it was scheduled for mention on 26th February 2026. 50. According to the deponent, notwithstanding the pendency of the appeal and stay application, the Respondent proceeded with execution and caused motor vehicle registration number KBV 317X, which was jointly registered in the names of the Applicant and the Interested Party, to be sold by public auction on or about 23rd February 2026, before the stay application could be heard. He annexed a certificate of sale and asserted that the sale materially altered the status quo and occasioned substantial prejudice to the Applicant because the vehicle formed part of the Applicant’s security under an ongoing credit facility. 51. The deponent further expressed apprehension that unless the court intervened urgently, execution would continue against the remaining proclaimed motor vehicles, namely KCD 070P and KCC 838J, which had been proclaimed by Mutrix Auctioneers on 5th August 2025 and remained at risk of attachment and sale following dismissal of the objector proceedings. He contended that the Respondent had aggressively pursued execution despite the pending appeal and stay application, citing the rapid sale of KBV 317X, which occurred only seven days after the subordinate court ruling and three days before the scheduled mention date of the stay application. According to the Applicant, this conduct demonstrated an intention to render the appeal nugatory by disposing of the suit vehicles before the appellate court could intervene. 52. The Applicant therefore sought urgent preservation orders, including stay of execution, maintenance of the status quo, and injunctive relief restraining the Respondent, auctioneers or any other persons acting on their behalf from transferring motor vehicle registration number KBV 317X or attaching and selling motor vehicles registration numbers KCD 070P and KCC 838J pending determination of the application and intended appeal. 53. The deponent further annexed a current NTSA search showing that motor vehicle registration number KBV 317X remained jointly registered in the names of the Applicant and the Interested Party and that no transfer had yet been effected at the time of swearing the affidavit. He maintained that unless the court intervened immediately, the Respondent and the auctioneers could effect transfer of the vehicle to third parties and proceed with attachment and sale of the remaining vehicles, thereby irreversibly altering ownership and defeating the substratum of the appeal. He added that the continued non-transfer of KBV 317X and the fact that the other two vehicles had not yet been physically attached presented a narrow opportunity for the court to preserve the subject matter of the appeal. 54. In response to the Respondent’s Replying Affidavit, the deponent admitted that motor vehicle registration number KBV 317X was jointly registered in the names of the Applicant and the Interested Party as reflected in the NTSA records. He clarified that the joint registration arose from a credit facility and a hire-purchase arrangement under which the Applicant advanced financing. At the same time, the Interested Party offered the vehicles as security. 55. The deponent further explained that the Interested Party, Joyce Wangui Wachira, was at all material times a director of Paddy Micro Investment Limited, which was the borrower under the Letter of Offer dated 10th August 2020 and the Hire Purchase Agreement dated 12th August 2020. He stated that the Interested Party personally executed the facility and security documents, both in her capacity as director of the borrower company and as the registered owner of the suit vehicles. According to the deponent, those facts were provided to clarify the commercial and proprietary basis for the joint registration and financing arrangement. 56. Kennedy Mbithi further asserted that the Respondent had not disputed the execution of the facility documents by the Interested Party nor controverted the existence of the financing arrangement giving rise to the Applicant’s proprietary and equitable interests in the vehicles. He maintained that the Applicant had acted promptly, diligently and in good faith in seeking appellate relief and preservation of the subject matter of the intended appeal. Lastly, he averred that unless stay orders were granted, the Applicant would suffer substantial and irreparable prejudice and the intended appeal would be rendered academic. 57. **SUBMISSIONS** 58. **Applicant’s submissions** 59. The Applicant, Endeavour Credit Limited, filed submissions in support of its Notice of Motion dated 16th February 2026 seeking a stay of execution of the ruling delivered on 13th February 2026 by Hon. Nancy N. Barasa in Narok CMCC No. E037 of 2022 is pending hearing and determination of the intended appeal. The Applicant relied on Sections 1A, 1B and 3A of the Civil Procedure Act together with Order 42 Rule 6 and Order 51 Rule 1 of the Civil Procedure Rules. The submissions were anchored on the supporting affidavit and further affidavit sworn by Kennedy Mbithi on 16th February 2026 and 25th February 2026, respectively. 60. The Applicant submitted that the dispute arose from a credit facility advanced to the Interested Party, Joyce Wangui Wachira, pursuant to a Letter of Offer dated 10th August 2020 and a Hire Purchase Agreement dated 12th August 2020. It was contended that the facility was secured through joint registration of thirty-eight motor vehicles, including motor vehicles registration numbers KBV 317X, KCD 070P and KCC 838J. According to the Applicant, the security interest was perfected by registration with the National Transport and Safety Authority (NTSA), thereby creating a valid and enforceable proprietary interest in favour of the Applicant in respect of an outstanding debt of Kshs. 30,000,000/=. 61. The Applicant submitted that the Respondent obtained a decree in the lower court against the Interested Party for Kshs. 1,119,199.90 and thereafter instructed auctioneers to proclaim and attach the suit vehicles. Following the attachment, the Applicant instituted objector proceedings before the subordinate court, which proceedings were dismissed on 13th February 2026. The Applicant maintained that the dismissal precipitated the present appeal and application for stay of execution. 62. It was further submitted that despite the pendency of the appeal and stay application, the Respondent proceeded to sell motor vehicle registration number KBV 317X on 23rd February 2026. The Applicant argued that the sale altered the status quo and underscored the urgency of preservatory orders, especially because NTSA records still reflected the Applicant and the Interested Party as the registered owners of the vehicle. According to the Applicant, there remained a narrow opportunity for the court to preserve the subject matter of the appeal and prevent transfer of the remaining vehicles. 63. On the issue of whether the Applicant had demonstrated an arguable appeal, the Applicant submitted that under Order 42 Rule 6(2) of the Civil Procedure Rules, the court ought to grant a stay where an appeal raises substantial and arguable issues. The Applicant contended that the intended appeal was meritorious because the subordinate court failed to appreciate the Applicant’s superior equitable and proprietary interest under Sections 12, 13 and 24 of the Movable Property Security Rights Act, 2017. The Applicant argued that the trial court disregarded uncontroverted evidence, including NTSA records and facility documents, demonstrating that the joint registration of the vehicles constituted perfected security, not mere rebuttable proof of ownership, as alleged by the Respondent. 64. The Applicant further submitted that the appeal raised constitutional issues concerning alleged violation of property rights guaranteed under Article 40 of the Constitution of Kenya, 2010. It was argued that the attachment and sale of the jointly registered vehicles without proper regard to the Applicant’s interests amounted to deprivation of property without due process. The Applicant also criticised the Respondent’s conduct in proceeding with the sale of KBV 317X only days after delivery of the ruling and before the stay application could be heard, contending that such conduct was intended to render the appeal nugatory and constituted procedural impropriety. 65. On the question of substantial loss, the Applicant submitted that the suit vehicles, as essential security for the outstanding credit facility, would cause irreparable harm if sold or transferred, as this would undermine the security underpinning the ongoing financial arrangement. It was argued that damages would not suffice because the security's loss directly affects the appeal's foundation. The Applicant emphasised that the sale of KBV 317X had already significantly altered the status quo and exposed the remaining vehicles, KCD 070P and KCC 838J, to imminent attachment and sale. Unless stay and preservation orders were granted, the substratum of the appeal would be destroyed, rendering the appeal academic. 66. The Applicant further submitted that the balance of convenience favoured preservation of the status quo because the Respondent would suffer no prejudice if stay orders were granted, as the decretal sum could still be recovered from other assets belonging to the Interested Party. Conversely, refusal to grant a stay would cause irreparable and unquantifiable loss to the Applicant and undermine the rule of law, which mandates the protection of pending legal rights. 67. In support of its arguments, the Applicant relied on the decision in **Butt v Rent Restriction Tribunal [1982] KLR 417**, where the Court of Appeal held that a stay pending appeal should be granted if the appeal is arguable and refusal would render the appeal nugatory. The Applicant argued that, similar to that case, the present appeal raises bona fide issues concerning property rights and execution proceedings, which would be rendered meaningless if the vehicles were disposed of before the appeal is heard. 68. The Applicant also relied on **National Industrial Credit Bank Ltd v Aquinas Francis Wasike & Another [2006] eKLR,** in which the Court of Appeal held that once an applicant demonstrates a reasonable apprehension of substantial loss, the evidential burden shifts to the respondent to demonstrate ability to refund or otherwise mitigate the loss. The Applicant submitted that it had sufficiently demonstrated the risk of losing secured assets and therefore stay orders ought to be issued to prevent the intended appeal from being rendered nugatory. 69. In conclusion, the Applicant submitted that the application had been filed without delay, that the intended appeal was arguable and raised substantial legal questions. That substantial loss would ensue unless stay orders were granted. The Applicant therefore prayed for orders of stay of execution, lifting of the attachments, and injunctive relief restraining transfer or further sale of the suit motor vehicles pending hearing and determination of the appeal, together with costs of the application. 70. **Respondnet’s submissions.** 71. The Respondent, Moses Chege Ng’ang’a, filed written submissions in opposition to the Applicant’s Notice of Motion dated 16th February 2026 seeking a stay of execution pending appeal. The Respondent relied on his Replying Affidavit, sworn on 24th February 2026, and submitted that the Applicant had failed to satisfy the legal requirements for the grant of a stay under Order 42 Rule 6 of the Civil Procedure Rules. 72. At the outset, the Respondent observed that although the Interested Party, Joyce Wangui Wachira, had been named in the proceedings, there was no indication that she had been served with the application. The Respondent further noted that the Applicant had filed a supporting affidavit and a further affidavit in support of the motion, but had not annexed a memorandum of appeal to enable the court to assess whether the intended appeal was arguable. 73. The Respondent submitted that an applicant seeking a stay pending appeal must demonstrate that substantial loss may result unless a stay is granted, that the application has been made without unreasonable delay, and that security has been offered for due performance of the decree. It was argued that the Applicant had failed to satisfy those conditions. This underscores the court's commitment to fairness and adherence to legal standards, ensuring all parties feel the process is just and transparent. 74. On the issue whether the intended appeal was arguable, the Respondent submitted that the Applicant’s complaint was essentially that the subordinate court failed to recognize its alleged legal and equitable interests in motor vehicles registration numbers KBV 317X, KCD 070P and KCC 838J as jointly registered owner and alleged secured creditor under the Traffic Act, the Hire Purchase Act and the Movable Property Security Rights Act, 2017. However, the Respondent contended that the Applicant failed to demonstrate any enforceable equitable interest because the alleged security interest had not been properly registered under the Movable Property Security Rights Act, 2017, which he described as a mandatory statutory requirement for protection against third parties. 75. The Respondent further argued that the Applicant had failed to prove that the loan facility remained outstanding, particularly because the facility term allegedly expired on 10th August 2023. According to the Respondent, the Applicant had not produced evidence of any outstanding indebtedness and therefore the intended appeal lacked merit and had no reasonable prospect of success. 76. On the question whether the appeal would be rendered nugatory if a stay was denied, the Respondent relied on the decision in **Josephine Koki Raymond v Philomena K. Maingi & Another[2018] eklr**, where the Court of Appeal explained that the term “nugatory” connotes something worthless, futile or trifling. The Respondent submitted that the Applicant had not demonstrated circumstances rendering the appeal nugatory. 77. The Respondent further relied on **James Wangalwa & Another v Agnes Naliaka Cheseto[2012] eKLR,** where the High Court held that commencement or completion of execution proceedings does not by itself amount to substantial loss under Order 42 Rule 6 of the Civil Procedure Rules, since execution is a lawful process. The Respondent emphasised that the court has carefully evaluated whether additional factors demonstrate irreparable impact on the appeal. This highlights the court's objective approach and thorough review of the evidence and legal principles involved. 78. The Respondent submitted that motor vehicle registration number KBV 317X had already been sold by public auction to one James Njenga Ngarama for Kshs. 800,000/= after dismissal of the objector proceedings, and that the purchaser had not been joined in the proceedings. It was argued that the vehicle had remained under attachment for approximately 12 months, from February 2025 until its eventual sale in February 2026, yet throughout that period, the Applicant never alleged that the Interested Party had defaulted on loan repayments. The Respondent therefore contended that no actual prejudice had been demonstrated. 79. The Respondent also referred the court to clause 3.6 of the hire purchase agreement annexed by the Applicant, which allegedly provided that the hirer’s obligations constituted a continuing liability unaffected by loss, theft or destruction of the assets. On that basis, the Respondent argued that any loss occasioned by the sale of the motor vehicle was compensable in damages and could not amount to irreparable harm. It was further submitted that the Applicant continued to hold thirty-eight vehicles as security and had failed to produce any evidence proving the alleged outstanding loan of Kshs. 30,000,000/=. The Respondent urged the court not to speculate on unproven figures and argued that the application had been designed to assist the judgment debtor evade lawful execution. 80. The Respondent additionally submitted that the Applicant’s conduct was inconsistent because while purporting to protect only its alleged equitable interests in the attached vehicles, it had sought a stay of execution of the entire decree against the Interested Party. According to the Respondent, this demonstrated that the true intention of the application was to frustrate lawful execution rather than preserve proprietary rights. 81. On the issue of security, the Respondent emphasised that Order 42 Rule 6(2)(b) of the Civil Procedure Rules expressly requires an applicant seeking a stay to provide security for due performance of the decree. It was argued that the Applicant had failed to offer any security and therefore did not satisfy the statutory requirements for a stay. 82. The Respondent further submitted that the ruling delivered on 13th February 2026 was a negative order incapable of being stayed because the subordinate court merely dismissed the Applicant’s application without directing any party to door refrain from doing anything. In support of that proposition, the Respondent relied on **Kenya Commercial Bank Limited v Tamarind Meadows Limited & 7 Others [2016] eKLR**, where the Court of Appeal cited with approval the decision in **Kanwal Sarjit Singh Dhiman v Keshavji Jivraj Shah[2008] eKLR**. In the latter case, the Court of Appeal held that an order dismissing an application is a negative order incapable of execution save as to costs, and therefore incapable of being stayed. 83. The Respondent therefore submitted that the Applicant had failed to establish irreparable or substantial loss incapable of compensation by damages. It was further argued that the application had already been overtaken by events following the sale of motor vehicle registration number KBV 317X. Consequently, the Respondent urged the court to find that the application lacked merit and to dismiss the Notice of Motion dated 16th February 2026 with costs. 84. **ISSUES FOR DETERMINATION** 85. Having carefully considered the Notice of Motion dated 16th February 2026, the affidavits on record, the rival submissions by counsel, and the applicable law, the following issues arise for determination: 86. **Whether the application dated 16th February 2026 satisfies the conditions for the grant of stay of execution pending appeal under Order 42 Rule 6 of the Civil Procedure Rules.** 87. **Whether the ruling delivered on 13th February 2026 constitutes a negative order incapable of being stayed.** 88. **Whether the Applicant is entitled to the preservatory and injunctive orders sought. iv. Who should bear the costs of the application?** 89. **ANALYSIS AND DETERMINATION** 90. **Whether the Applicant has satisfied the conditions for the grant of a stay of execution pending appeal** 91. The principles governing stay of execution pending appeal are well settled and are codified under Order 42 Rule 6(2) of the Civil Procedure Rules, which provides that: ***“No order for stay of execution shall be made under subrule (1) unless— (a) The court is satisfied that a substantial loss may result to the applicant unless the order is made and that the application has been made without unreasonable delay; and (b) such security as the court orders for the due performance of such decree or order as may ultimately be binding on him has been given by the applicant.”*** 1. The Court of Appeal in **Butt v Rent Restriction Tribunal** held that the power to grant a stay pending appeal is discretionary and ought to be exercised in a manner that does not render an appeal nugatory. The court observed that where there is no overwhelming hindrance, a stay ought to be granted so that an appeal, if successful, is not rendered worthless. 2. Similarly, in **Halai & Another v Thornton & Turpin (1963) Ltd[1990] KLR 365**, the Court of Appeal stated that an applicant must satisfy the conditions of substantial loss, promptitude, and provision of security before a stay may issue. 3. The Applicant contends that it has a perfected proprietary and equitable interest in motor vehicles registration numbers KBV 317X, KCD 070P and KCC 838J by virtue of the financing arrangements and joint registration effected through NTSA pursuant to the provisions of the Movable Property Security Rights Act, 2017. The Applicant further argues that unless a stay is granted, the remaining vehicles are likely to be sold, thereby rendering the intended appeal nugatory. 4. On the question of delay, the impugned ruling was delivered on 13th February 2026, while the present application was filed on 16th February 2026. In the court’s view, the application was filed timeously and without unreasonable delay. 5. The cornerstone for the grant of stay, however, remains proof of substantial loss. In **James Wangalwa & Another v Agnes Naliaka Cheseto**, the High Court held that execution, being a lawful process, does not, by itself, amount to substantial loss. The applicant must demonstrate additional circumstances showing that execution will irreparably affect the very essence of the appeal. 6. The Applicant has asserted that the attached vehicles constitute collateral for an outstanding facility allegedly amounting to Kshs. 30,000,000/=. However, beyond the bare assertions in the affidavits, no updated loan statements, repayment schedules, statements of account, or evidence of the outstanding balance were exhibited before this court. Equally, no documentary proof was tendered to demonstrate that the alleged security interest remained duly perfected and enforceable against third parties under the Movable Property Security Rights Act, 2017. 7. The Respondent raised the issue that the facility term expired on 10th August 2023 and challenged the Applicant to demonstrate the subsistence of the alleged debt and security interest. The Applicant did not adequately rebut those allegations through cogent documentary evidence. In interlocutory applications of this nature, the court is not expected to determine proprietary rights conclusively; however, the Applicant bears the burden of laying a sufficient evidentiary foundation to justify the exercise of the court’s discretion. 8. The court further notes that motor vehicle registration number KBV 317X had already been sold by public auction on 23rd February 2026 before the application could be heard inter partes. Although the Applicant urges the court to preserve the substratum of the appeal, the sale already undertaken substantially altered the status quo. The purchaser has not been joined in these proceedings, and no substantive relief has been sought against the purchaser. 9. In **National Industrial Credit Bank Ltd v Aquinas Francis Wasike & Another [2006] eKLR,** the Court of Appeal held that once an applicant demonstrates a reasonable apprehension of substantial loss, the evidential burden shifts to the respondent. In the present matter, the court finds that the Applicant did not sufficiently demonstrate, through documentary evidence, the actual extent of loss likely to be suffered or the subsistence of the alleged outstanding indebtedness. 10. Further, the Applicant did not offer security for due performance of the decree as required under Order 42 Rule 6(2)(b) of the Civil Procedure Rules. The provision of security is mandatory, not optional. The Court of Appeal in **Focin Motorcycle Co. Limited v Ann Wambui Wangui & Another [2018] eKLR emphasised that security is intended to guarantee the** due performance of the decree should the appeal fail. 11. In the circumstances, although the intended appeal is not frivolous and raises arguable issues regarding objector proceedings and alleged proprietary interests, the Applicant has failed to establish substantial loss satisfactorily and has equally failed to offer security for due performance of the decree. 12. **Whether the ruling dated 13th February 2026 constitutes a negative order incapable of being stayed** 13. The Respondent submitted that the ruling delivered by the subordinate court merely dismissed the Applicant’s objection applications and therefore constituted a negative order incapable of stay. 14. The law regarding negative orders is settled. In **Kanwal Sarjit Singh Dhiman v Keshavji Jivraj Shah,** the Court of Appeal held that an order dismissing an application is a negative order incapable of execution save as to costs. The same principle was reiterated in **Kenya Commercial Bank Limited v Tamarind Meadows Limited & 7 Others.** 15. The ruling delivered on 13th February 2026 dismissed the Applicant’s objection proceedings. Strictly speaking, that dismissal order itself did not direct any party to undertake a positive act capable of execution. To that extent, the ruling constitutes a negative order that cannot be stayed. 16. Nonetheless, the Applicant has also sought a stay of execution of the decree and consequential attachment and sale proceedings arising from Narok CMCC No. E037 of 2022. Such consequential execution proceedings may be stayed where the legal threshold is met. 17. However, as already observed, the Applicant has failed to satisfactorily establish the requisite substantial loss and security necessary to warrant the grant of stay orders. 18. **Whether the Applicant is entitled to preservatory and injunctive orders** 19. The Applicant further sought orders lifting the attachments, compelling release of the vehicles, restraining transfer of KBV 317X, and prohibiting further attachment or sale of motor vehicles KCD 070P and KCC 838J. 20. The grant of injunctive and preservatory relief remains discretionary. It is guided by the principles set out in **Giella v Cassman Brown & Co. Ltd,** namely, the establishment of a prima facie case with a probability of success, the likelihood of irreparable injury, and the balance of convenience. 21. While the Applicant demonstrated the existence of joint registration records, the court is unable at this interlocutory stage to conclusively determine whether the Applicant’s alleged security interests were perfected and enforceable against third parties. Those are substantive issues best left for determination in the intended appeal. 22. Further, the court takes judicial notice that KBV 317X has already been sold through public auction and the purchaser has not been enjoined in these proceedings. Granting orders affecting third-party rights in the absence of the purchaser would offend the rules of natural justice. 23. As regards motor vehicles registration numbers KCD 070P and KCC 838J, the court is not persuaded that the Applicant has demonstrated irreparable harm incapable of compensation by damages. The Applicant has also failed to place before the court satisfactory evidence regarding the subsistence and extent of the alleged outstanding facility. 24. Consequently, the court declines to grant the preservatory and injunctive orders sought. 25. **Costs** 26. Costs ordinarily follow the event pursuant to Section 27 of the Civil Procedure Act unless the court, for good reason, orders otherwise. In this case, the Respondent has substantially succeeded in opposing the application. 27. Accordingly, the Notice of Motion dated 16th February 2026 is hereby dismissed with costs to the Respondent. 28. **DISPOSITION** 29. In the result, the court makes the following orders: 30. **The Notice of Motion dated 16th February 2026 is hereby dismissed.** 31. **The interim orders, if any, are hereby discharged.** 32. **Costs of the application are awarded to the Respondent.** 33. It is so ordered. **DATED, SIGNED, AND DELIVERED AT NAROK, THIS 22ND DAY OF MAY 2026.** **……………………………….** **CHARLES KARIUKI** **JUDGE**