https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11343

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT NAKURU** **CIVIL APPEAL NO. E346 OF 2025** **DAVID MWANGI GICHUKI T/A** **DAVIS AUCTIONEERING SERVICE ...............APPELLANT/APPLICANT** **VERSUS** **PAUL CHEGE NDIRANGU.......................................................RESPONDENT** **RULING** 1. Before this Court is the Applicant/ Appellant’s Notice of Motion dated 18th December, 2025, brought under Order 42 Rule 6 & Order 22 Rule 22 of the Civil Procedure Rules, and Sections 63 E of the Civil Procedure Act, Cap. 21 Laws of Kenya, seeking Orders that;- 2. ***Spent.*** 3. ***Spent.*** 4. ***Pending hearing and determination of this appeal, there be a stay of execution in NAKURU MCC MISC E016 OF 2025 DAVIS MWANGI GICHUKI -V- PAUL CHEGE NDIRANGU.*** 5. The grounds are set out on the face of the Notice of Motion. They are further supported by the Affidavit sworn on the same date by the applicant, **David Mwangi Gichuki**. 6. He states that the trial court delivered its Ruling on 9th December 2025 in ***Nakuru MCC Misc E016 Of 2025 Davis Mwangi Gichuki -V- Paul Chege Ndirangu,*** and the Respondent is in the process of executing the decree, and therefore, the Applicant stands to suffer irreparable loss and damages if the orders sought are not granted. 7. Giving the background to the current application, he states that the trial court dismissed the Applicant’s Auctioneers Bill of Costs dated 4th April 2024, on the grounds that it was res judicata. 8. It is his position that the Business Premises Tribunal (BPRT) did not assess the Auctioneers Bill of Costs, and therefore, the court was misled into believing that said bill of costs was taxed, thereby arriving at the wrong decision that the Bill was res judicata. 9. He states that the Ruling by BPRT was very clear that a refund was from the amount taxed off and therefore, the Appeal has high chances of success and the Respondent shall not be prejudiced if the orders sought herein are granted. 10. Conversely, the Applicant stands to suffer irreparable loss and damage, and the Appeal will be rendered nugatory. **Respondent’s Replying Affidavit** 1. It was sworn by Paul Chege Ndirangu on 4th March 2026. Opposing the said application, he states that the said suit in ***Nakuru MCC Misc. No. E016 of 2025 Davis Mwangi Gichuki -V- Paul Chege Ndirangu*** was filed in respect to an assessment of Auctioneer Bill of Cost dated 4th April 2025, following the attachment and sale of his (Respondent’s) tractor and a gearbox in realisation of rent arrears of Kshs. 117, 000/= that the Respondentowed Mary Wanjiku Kihara (the landlady). 2. It is his case that the Auctioneer’s Bill of Costs, having been assessed by PBRT in Nakuru BPRT No. E085 of 2023 vide its Ruling dated 11th October, 2024, the trial court, in its Ruling dated 9th December, 2025, rightly found the same to be res judicata and an abuse of the court process. 3. It is his position that if indeed the Applicant herein was aggrieved by the BPRT‘s Ruling, then he ought to have filed a reference before the Environment and Land Court in Nakuru as opposed to filing a fresh bill of costs for taxation and/or assessment in Nakuru CMC MISC No. 106 of 2025. 4. Further, he states that being aggrieved by the Ruling dated 9th December, 2025, in Nakuru CMCC MISC No. 106 of 2025, the Applicant ought to have filed a reference as opposed to an appeal since it touches on the court’s decision to dismiss the Auctioneer’s Bill of Costs for being res judicata. 5. While discussing the principles governing the grant of stay of execution pending appeal, he states that the three conditions must be met simultaneously. However, the Applicant has failed to establish sufficient cause to warrant this court to grant the orders sought. He therefore urges that this application be dismissed with costs. **Applicant’s Submissions dated 20th February 2026.** 1. On whether the application has been made without unreasonable delay, he submits that the impugned ruling was delivered on 9th December 2025, while the present application was filed on 18th December 2025, barely nine (9) days later, hence there was no delay. 2. On substantial loss, he submits that he has demonstrated real apprehension of execution by the Respondent, yet the appeal challenges the very foundation upon which execution is premised, namely the finding that the Applicant’s Bill of Costs was res judicata. 3. He therefore submits that he has shown that no taxation ever occurred and that the trial court acted on a misapprehension of the BPRT ruling. Hence, if execution proceeds, the Applicant’s statutory right to pursue taxation of his Bill of Costs will be defeated irreversibly. In support, he cited the case of ***RWW v EKW [2019/ eKLR,*** where the court stated that ***“ the purpose of stay is to preserve the subject matter so that the appeal is not rendered illusory.”*** 4. Onwhether the Appeal is arguable, he submits that the Appeal raises serious issues being: Whether the subordinate court erred in law by holding that the Applicant’s Bill of Costs was res judicata; whether the BPRT ruling amounted to taxation of costs; and whether the trial court misinterpreted the tribunal’s decision. Consequently, he submits that the appeal is not frivolous. 5. On Security for due performance, he submits that he is ready and willing to comply with any reasonable conditions as to security that this Court may impose pursuant to Order 42 Rule 6(2) of the Civil Procedure Rules. He therefore urges the court to balance the Respondent's enjoyment of the fruits of judgment and the Applicant’s constitutional right of appeal. In this case, he submits that justice tilts in favour of preservation of the status quo pending determination of the appeal. **Respondent’s Submissions dated 13th March 2026** 1. They are highlights of the Replying Affidavit, and further, the Respondent submits that all three conditions must be complied with for an order of stay to issue. In this case, he submits that the argument that the appeal will be rendered nugatory if the order is not granted, is not one of the conditions for granting a stay of execution, but the Applicant has failed to provide any form of security for due performance of the decree. 2. Further, it is submitted that the Ruling of 9th December 2025, upon which stay is sought, is a negative order. On that basis, he submits that the application herein lacks merit. He urges the court to dismiss it with costs. **Analysis and Determination** 1. The Court record shows that on 16th March 2026, Counsel for the Respondent intimated that they have not yet executed and therefore status quo be maintained in the meantime pending the ruling. 2. After considering the material presented by the parties herein , the only issue for consideration is whether the Applicant should be granted stay of execution pending hearing and determination of the Appeal. 3. Both parties appreciate the principles upon which this Court may grant a stay of execution pending appeal as enshrined in Order 42 Rule 6(2) of the Civil Procedure Rules, that: ***“(2)No order to stay of execution shall be made under sub-rule (1) unless-(a)the court is satisfied that 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.”*** 4. On the issue of delay, it is noted that with the present application having been filed on 18th December 2025 in regard to impugned ruling of 9th December 2025, a period of about Nine (9 ) days cannot be termed as delay. 5. On security for due performance of the decree, the Applicant has not provided any but says in his submissions that he *is ready* ***and willing to comply with any reasonable conditions as to security that this Court may impose pursuant to Order 42 Rule 6(2) of the Civil Procedure Rules***. 6. On substantial loss, it is noted that the Bill of Costs dated 4th April 2025 in Nakuru CMCC MISC No. 106 of 2025, was dismissed with costs for being res judicata. That was a negative order. The learned Magistrate did not order parties to undertake any action or refrain from doing anything except awarding costs to the Respondent herein which have not been ascertained. 7. In the case of ***Western College of Arts and Applied Sciences v Orange & Others [1976] KLR 63*,** the Court of Appeal stated**: -** ***“But what is there to be executed under the judgement, the subject of the intended appeal? The High Court has merely dismissed the suit with costs. Any execution can only be in respect of costs. In Wilson v Church the High Court had ordered the trustees of a church to make a payment out of the fund. In the instant case the High Court has not ordered any 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 an injunction...”*** 1. Further, in ***Jennifer Akinyi Osodo v Bonface Okumu Osodo & 3 Others [2021] eKLR*,**the Court of Appeal held that a negative order cannot be the subject of a stay order. Therefore, it is trite that stay of execution cannot be ordered against negative Orders. Court of Appeal held that a negative order cannot be the subject of a stay order. The impinguated Ruling did not order parties to undertake any action or refrain from doing anything except awarding costs, which have not been ascertained and therefore, the prayer for stay of execution is therefore untenable. 2. Consequently, the application dated 18th December, 2025, is hereby dismissed with costs to the Respondent. **Dated and signed at Nairobi this 21st Day of June, 2026.** **PATRICIA GICHOHI** **JUDGE** **Delivered at Nakuru this 27th Day of July, 2026.** **………………………** **DR. JOSEPH SERGON** **JUDGE**