https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/13109

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT MERU** **MISCELLANEOUS CIVIL APPLICATION NO. E183 OF 2025** **GABRIEL MAITETHIA..............................................................APPLICANT** **VERSUS** **MOMENTUM CREDIT LIMITED.............................................RESPONDENT** **RULING** 1. This matter comes up for determination on two applications. 2. The first application is the Notice of Motion dated 4th December 2025, filed under a Certificate of Urgency. The application seeks, inter alia, the following orders: 3. Spent. 4. **THAT** this Honourable court be pleased to stay orders issued on the 5th of November 2025 by Hon J. M. Njoroge (CM) in CMCC E228 OF 2024. 5. **THAT** this Honourable court be pleased to review, vary, vacate discharge or set aside orders issued on the 5th of November 2025 by Hon J.M. Njoroge in CMCC E228 of 2024. 6. **THAT** this Honourable court stays execution of the ruling before Hon Njoroge in CMCC E228 of 2024 delivered on the 5th of November 2025. 7. **THAT** the costs of and incidental to this application be provided for. 8. The second application is dated 24th February 2026 and it seeks the following orders; 9. **THAT** this Honourable court be pleased to grant leave to the applicant to file an appeal out of time against the ruling delivered by Hon. J.M. Njoroge in Meru Civil E228 of 2024 on the 5th of November 2025. 10. **THAT** the respondent be compelled to forthwith and unconditionally release motor vehicle KCM 879 X under attachment by Nairobi Channels Auctioneers pending the hearing and determination of this application and intended appeal. 11. **THAT** this Honourable court be pleased to issue an order of injunction restraining the 7 Respondent either by itself, servants, agents and or anyone acting through it from selling, offering for sale, transferring, selling by public auction or in any other manner interfering with the applicant’s possession for motor vehicle KCM 879X pending the hearing and determination of this application and the intended appeal. 12. **THAT** the costs of and incidental to this application be provided for. 13. The Applicant depones that he is the registered owner of Motor Vehicle registration number KCM 879X which he uses for matatu business and is his source of livelihood. That he had filed Meru CMCC E228 of 2024 seeking injunctive orders to restrain the Respondent from repossessing the said vehicle. That temporary orders were granted on 12/9/2024 by Hon. J.M Njoroge C.M. That on 5th November 2025, the trial court dismissed the application for injunctive relief. 14. The Applicant states he is desirous of filing an appeal against that ruling but the ruling is yet to be uploaded. That on 28th November 2025, the Respondent repossessed the vehicle and has indicated an intention to sell it through an auction. The Applicant avers that he stands to suffer substantial and irreparable loss if the vehicle is disposed of before his intended appeal is heard. 15. The respondent opposed both applications vide an affidavit sworn by Shelia Imali, its Head of Legal Department. 16. In a nutshell, the respondent avers that contrary to the applicant’s assertion the ruling by the lower court is available and that the respondent was able to secure the same in November 2025. That the applicant has no intention of following up on the appeal and is only out to stall the respondent’s process of realization of the secured loan. 17. In respect to the first application, the respondent terms it as bad in law as a review can only be done by the court that issued the orders, and no such application has been filed before the lower court. 18. It is further averred that the orders issued by the lower court were negative in nature and incapable of execution and as such there is nothing to stay. 19. It is further averred that the applicant has not demonstrated any substantial loss that may accrue to him. 20. The parties filed their respective submissions which I have perused, but will not rehash them herein. I will, where necessary, refer to them. 21. The applicant’s first application sought a stay of execution of the orders issued by the lower court. 22. The principles governing grant of stay of execution pending appeal are well settled. The applicant must demonstrate: 23. That the appeal or intended appeal is arguable; 24. That unless the stay is granted, the appeal will be rendered nugatory; and 25. That it is in the interests of justice to grant the stay. (See **Butt Vs Rent Restriction Tribunal (1982) KLR 417**). 1. I have perused the ruling of the lower court which was filed by the respondent. Although the ruling is incomplete, it is clear from the submissions from the parties that the applicant’s application dated 9th September 2024 was dismissed by the lower court. This is a negative order. 2. In **Kaushik Panchamatia & 3 others v Prime Bank Limited & another [2020] KECA 418 (KLR),** cited by the respondent, the Court of Appeal addressed what a negative order entails and the consequences thereof. The court held as follows; ***“We cannot lose sight of the fact that the order that the applicants seek to stay is the order of the High Court issued on 24th June 2020 dismissing their application. This is a negative order. We are guided by the decision in the case of Western College Farts and Applied Sciences vs. Oranga & Others [1976] KLR 63, the court whilst considering whether an order of stay can be granted in respect of a negative order and which we fully adopt stated inter alia as follows****:- “But what is there to be executed under the judgment, the subject of the intended appeal the High Court has merely dismissed the suit with costs. An execution can only be in respect of costs…..” The High Court has not ordered any of the parties to do anything or to refrain from doing anything or to pay any sum. There is nothing arising out of the High Court Judgment for this court in an application for stay to enforce or restrain by injunction****.”We reiterate the position taken by the Court in the above case that a negative order is incapable of being stayed because there is nothing to stay. It therefore, follows that in light of the above threshold we have no mandate to grant a stay order in the manner prayed for by applicants.”*** 1. The dismissal of the application by the lower court was a negative order which does not prompt any execution process, save for costs, where so ordered. In this case the suit in the lower court was still alive so no execution could proceed. 2. I therefore find that there is nothing to stay. 3. As regards the application for review, such an order is to be made under section 80 of the Civil Procedure Act and Order 45 Rule 1 of the Civil Procedure Rules. That application is entertained by the court that issued the order, upon the applicant put forth sufficient grounds for such an order to issue. 4. I am thus in agreement with the respondent that this court cannot be called upon to review any order of the lower court as sought. The applicant’s recourse to this court is through an appeal. 5. In regard to the application dated 5th November 2025, I find that the same is wanting in any merit and it is dismissed with costs. 6. I will now deal with the application dated 24th February 2026. 7. The applicant states that he was unable to file an appeal on time because the ruling by the trial court was unavailable. 8. The ruling was delivered on 5th November 2025. There is no indication as to whether the applicant was represented when it was delivered, since as I stated, the ruling filed by the respondent is incomplete. However, I note that the applicant’s advocate, vide a letter dated 25th November 2025, sought a copy of the ruling. It is not clear when the ruling was made available to the parties. It is thus possible that the same was not available when the applicant came to court with the first application. 9. Section 79G of the Civil Procedure Act states as follows: - **Every appeal from a subordinate court to the High Court shall be filed within a period of thirty days from the date of the decree or order appealed against, excluding from such period any time which the lower court may certify as having been requisite for the preparation and delivery of a copy of the decree or order: Provided that an appeal may be admitted out of time if the appellant satisfies the court that he had good and sufficient cause for not filing the appeal in time.** 1. The Supreme Court in **Nicholas Kiptoo Korir arap Salat vs IEBC and 7 Others [2014] eKLR** enunciated the principles applicable in an application for leave to appeal out of time. The court stated inter alia that: - “**The underlying principles a court should consider in exercise of such discretion should include: -** 1. **Extension of time is not a right of any party. It is an equitable remedy that is only available to a deserving party at the discretion of the court;** 2. **A party who seeks for extension of time has the burden of laying a basis to the satisfaction of the court;** 3. **Whether the court should exercise the discretion to extend time, is a consideration to be made on a case-by-case basis;** 4. **Whether there is a reasonable reason for the delay. The delay should be explained to the satisfaction of the court;** 5. **Whether there will be any prejudice suffered by the respondent if the extension is granted;** 6. **Whether the application has been brought without undue delay.** 7. Looking at the circumstances that prevailed at the time, I find that there is a possibility that the ruling was not available to the parties when the time for filing of appeal expired. 8. I am therefore inclined to grant the applicant leave to file the appeal out of time. 9. As for the prayer for injunction, and the return of the motor vehicle to him, the applicant has to surmount the threshold set out in **Giella vs Cassman Brown Limited (1973) EA 358.** 10. The applicant urged the court to look at the peculiar nature of the case, in that his vehicle was illegally repossessed. The applicant states he has demonstrated that the Motor Vehicle is not merely a movable asset, but the very source of his livelihood through which he earns a daily income from his matatu business and sustains both himself and his dependants. 11. From the material before me, the Applicant’s vehicle was the security offered for the loan. Although the applicant claims that the repossession was illegal, I don’t see any such illegality. There is ample evidence that the borrower (1st Respondent) defaulted on the agreed repayment. This fact was duly noted by the trial court. 12. Although the applicant claims that he repaid the loan, no evidence has been adduced. Nothing would have been easier than to annex proof of such repayment. 13. In such circumstances the respondent had the right to invoke its right to repossess the security offered against the loan. 14. I am thus not satisfied that the applicant has made out a *prima facie* case with probability of success. 15. As to whether damages are adequate, it is trite law that once a property is offered as security for a financial loan, it becomes a commodity whose value is known. The fact that the vehicle was earning the applicant an income was known to him when he offered it as security. Since there is default, the vehicle is ripe for realization of the outstanding loan amount. 16. On this issue, I fully agree with the finding of the court in **Njau V Platinum Credit Limited [2025] KEHC 15751 (KLR**), where the court held that; **“*Court precedents have determined that property offered as security becomes a commodity for sale in the event of default. See the case of Shimmers Plaza Limited v National Bank of Kenya Limited [2013] KEHC 363 (KLR). Given the said decision, and considering the fact that the value of the suit motor vehicle can be readily determined through valuation, the defendant, being a financial institution would be capable of compensating the plaintiff if the suit is ultimately decided in her favor. I am therefore persuaded that the plaintiffs do not stand to suffer irreparable damage that cannot be adequately compensated by an award of damages in the event that the instant application is not allowed.”*** 1. I am thus of the view that the applicant has also failed the second test set out in **Giella vs Cassman Brown Limited (supra)**. 2. Even if the court is to look at the matter on a balance of convenience, I find that the same tilts in favor of the respondent, who is yet to be repaid the loan it advanced to the 1st respondent. 3. In conclusion, the following orders do issue; 4. **The applicant is granted leave to appeal against the ruling of the lower court delivered on 5th November 2025 out of time.** 5. **THAT the Applicant shall file and serve the memorandum of appeal within 14 days of the delivery of this ruling.** 6. **All the other prayers sought in the two applications are declined.** 7. **THAT the costs of the two applications shall be borne by the applicant.** **Dated, signed and delivered at Meru this 18th day of August, 2026.** **H. M. NYAGA** **JUDGE**