Kituke v Nyakundi (Civil Miscellaneous E401 of 2026) [2026] KEHC 9618 (KLR) (30 June 2026) (Ruling)

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT NAIROBI** **MILIMANI HIGH COURT** **CASE NUMBER: HCCCMISC/E401/2026** **FAITH KANYIVA KITUKE………………..……………..APPLICANT** **VS** **WYCLIFE AONDO NYAKUNDI………………….…...DEFENDANT** **RULING** 1. Before this court is the Notice of Motion dated 15th of April 2026 brought under Order 42 Rule 6 (1), Order 22 Rule 22, Order 51 Rule 1 of the Civil Procedure Rules, Sections 3 and 3A of the Civil Procedure Act, Article 50 of the Constitution and all other enabling provisions of the law. 2. The Applicant herein prayed for the following orders 3. *Spent* 4. *Spent* 5. *THAT the Honourable Court be pleased to lift/set aside the decree, warrants of attachment and together with the proclamation notice.* 6. *THAT the motor vehicle registration number KCR 248 H and any items belonging to the Applicant be released on running attachment pending hearing and determination of this application.* 7. *THAT this Honourable Court be pleased to allowed the Applicant pay the decretal sum in monthly instalments of Kshs. 80,000/= until payment in full.* 8. *THAT this Honourable Court be pleased to order and allow the Applicant to make payment (in 4 equal monthly installments) until payments in full from May 2026.* 9. *THAT this Honourable Court to make any such further orders and issue any other relief it may deem just to grant in the interest of justice.* 10. The application was supported by an affidavit sworn by one Kelvin Ngure and annexures of the warrants, decree and judgment. 11. The Respondent filed a Replying Affidavit dated 15th of May 2026 where he opposed the application contending that the judgement sought to be impugned has never been appealed against, reviewed or set aside and that the Applicant neither filed nor sought leave to file an appeal; that the prayer for payment by instalments ought to have been directed to the court that passed the decree; that the Applicant has failed to comply with the Courts orders given on 16th of April 2026 on deposit of security thereby demonstrating her unwillingness to comply with any directions on settling the contested decretal amount. 12. The Respondent avers that that the Applicant has been a habitual absentee in these proceedings hence urged the court to dismiss the application. **Analysis and Determination** 1. Having considered the application, the response and the record, the following issues arise for determination by this Court; 2. Whether this Court should stay execution of the decree issued by the Small Claims Court; and 3. Whether this court has jurisdiction to entertain the prayer for payment of the decretal sum by installments. **Whether this Court should stay execution of the decree issued by the Small Claims Court** 1. There is no dispute that the judgement of the Small Claims Court remains in force. The Applicant has not demonstrated that any appeal has been lodged against the judgment, nor has any application for leave to appeal been presented before this Court. Equally, no order setting aside, reviewing or staying the judgment has been exhibited. 2. The jurisdiction to grant stay of execution under Order 42 Rule 6 of the Civil Procedure Rules is exercised in aid of an existing or competent appellate process which is not the case in this matter. 3. In the absence therefore, of a competent appeal, there exists no legal substratum upon which the order of execution being sought herein may properly issue. To grant a stay in such circumstances would be to suspend the lawful enjoyment of the fruits of a judgement upon a purely speculative right of appeal. 4. In the case of **Equity Bank Ltd. V West Link MBO ltd (2013) KECA 320 (KLR)** the Court of Appeal emphasized that ***a stay of execution is intended to preserve the subject matter pending an existing or competent appellate process. A stay is not an end in itself but an ancillary remedy to an appeal.*** 5. The Applicant has highlighted the case of **Gathaiya v Attorney General & 2 others; & 176 Interested Parties** (**Petition No. E008 & E010) (2026) KEHC 290 (KLR)** where a three-judge bench of the High Court delivered a judgment on the 22nd of January 2026 ruling that Small Claims Court have no jurisdiction in personal injury claims- the subject of the suit herein. 6. However, the said judgement did not invalidate judgements already delivered nor did it declare all decrees previously issued by the Small Claims Court to be null and unenforceable. 7. In the absence of a successful challenge to the decree being sought to be executed, this court cannot ignore or suspend a subsisting judgement merely because the legal position was subsequently clarified. 8. Further, the Applicant has failed to comply with the directions of the Court given on 16th April 2026 requiring the deposit of Kshs. 150,000/= security as condition for the interim orders sought. 9. Equity aids the vigilant and not the indolent. A party who seeks the discretionary intervention of the Court must himself demonstrate obedience to existing court orders. The applicant in this case has not done so. **Whether this court has jurisdiction to entertain the prayer for payment of the decretal sum by installments** 1. Order 21 Rule 12 of the Civil Procedure Rules vests the jurisdiction to order payment of a decretal sum by installments in the court which passed the decree or in, appropriate circumstances the executing court. 2. In the present case, the decree emanated from the Small Claims Court. No sufficient basis has been laid for this Court to assume that jurisdiction in these proceedings. 3. Finally, the Applicant has not offered any explanation for the delay of payment towards the satisfaction of the decree. 4. The Applicant has also been absent severally in the proceedings of this Application despite notice. The cumulative conduct of the Applicant demonstrates a lack of diligence in prosecuting the present application. 5. It is trite law that a successful litigant is entitled to enjoy the fruits of judgment. The Court should not deny that right in the absence of cogent and lawful grounds. **Disposition** 1. In the result, I find the application herein to be devoid of merit. 2. Accordingly, the Notice of Motion dated 15th April 2026 is hereby dismissed with costs to the Respondent. 3. The Respondent is at liberty to proceed with execution in accordance with the Law. **DATED, SIGNED AND DELIVERED VIRTUALLY THIS 30TH DAY OF JUNE 2026.** **A.M. OKUTOYI** **JUDGE**