https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10595

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT NAKURU** **CIVIL APPEAL NO. E093 OF 2025** **IBRAHIM KIMANI………………………………………….……..APPLICANT** **VERSUS** **DAVID MAINA NDUNGU………………………….…………..RESPONDENT** **RULING** 1. Before this Court for determination is the Applicant’s Notice of Motion Application dated 22nd April, 2025 brought pursuant to **Section 3A** of the **Civil Procedure Act**, **Order 51 Rule** **1** and **Order 42 Rule 6(1)** of the **Civil Procedure Rules** seeking the following**:-** 2. ***Spent*** 3. ***Spent.*** 4. ***That there be stay of execution of the ruling delivered herein on the 9th of April 2025, in Molo CMCC No. E351 of 2021 and all other consequential orders Pending hearing and determination of the instant Appeal.*** 5. ***That there be a review and/or setting aside of the orders of conditional stay particularly on the aspect of payment of security for costs by the Applicant herein issued in Molo CMCC No. E351 of 2021 on the 16th of April 2025.*** 6. ***That costs of this application be granted****.* 7. Application is premised on the grounds on its face and the Supporting Affidavit sworn by the Applicant evenly dated. The Applicant deposes that he filed an application dated 14th November, 2024 in **Molo CMCC No. E351 of 2021,** on account of attachment of his alleged Motor Vehicle Registration Number **KCA 881P** for execution of a decree. 8. He states that he was never a party to the decree arising out of the proceedings but the Court vide a ruling dated 9th April 2025, dismissed his objection application despite evidence of ownership hence the instant Appeal. That he made an application for stay pending appeal in Molo CMCC No. E 351 of 2021 and the Court issued conditional orders that he pays half the decretal sum as security for costs despite there being similar orders for payment of half the decretal sum by the Judgment debtor in the matter pending in a separate appeal. 9. He contends that his application is one and for which the traditional statutory conditional precedent for deposit of security for costs cannot issue. He is apprehensive that his motor vehicle may be sold in wrongful of execution of a decree he was never party to thus rendering this appeal nugatory. He adds that he was unable to pay half the decretal amount. 10. The application was opposed by way of Replying Affidavit sworn by the Respondent on 20th May, 2025. He deposes that before the filing of Civil Suit Number 351 of 2021, he conducted search for Motor Vehicle Registration Number **KCA 881P** from the Registrar of Motor Vehicles and it was registered in the name of **SAMUEL GACHERU MWANGI,** the Defendant therein. 11. He states that the civil case proceeded inter-partes and at no time did the Defendant in the said case raised any objection to the ownership of the said Motor Vehicle Registration Number КСА 881P. The said Defendant was given conditional stay of execution pending the hearing and determination of Civil Appeal No. 159 of 2022 but he never met the said conditions. 12. The Respondent avers that the Applicant is a relative of the Defendant in the primary suit and that they have colluded to frustrate his efforts of execution. In the objection proceedings filed by the Applicant, he annexed a copy of the logbook of Motor Vehicle Registration Number KCA 881P dated May 4th , 2023 which was done after the judgement of the court and after he had been informed that execution could ensue unless the decretal sum is paid by the judgement debtor. 13. It is further averred that when the Applicant filed an application for objection at the Trial Court, he never annexed any document(s) of proof of how he got the vehicle from the judgement debtor. 14. The Respondent deposes that no substantive Appeal has been served and that this application is meant to deny him fruits of a just judgement of the Court. That the accident occurred on the 10th February, 2021 and it physically affected his life and he depends on family assistance. 15. Parties filed their submissions to further advance their arguments. **Applicant’s written submissions** 1. The Applicant submits that pursuant to **Oder 42 Rule 6(1**) of the **Civil Procedure Rules**, this Court has the jurisdiction to entertain and grant orders in a fresh application for stay of execution notwithstanding the fact that a similar application was previously considered and determined by the Trial Court. 2. As to whether this Court can dispense with the requirement for security in favour of the Applicant given the circumstances of the case, it is submitted that **Order 42 Rule 6(2)(b)** of the **Civil Procedure Rules** should not be read in isolation. That the issue of security is discretionary and grounded in the presumption that the Applicant is liable. He argues that requiring the Applicant to deposit security would be similar to forcing a stranger to stand as surety for a judgment he was never subject to. Further, it is submitted that the Applicant was not party to the proceedings and that he is not appealing on an application on liability but the wrongful attachment of his vehicle. 3. The Applicant has placed reliance on ***Tawakal Airbus Ltd v Irene Muthoni Njirati* Civil Appeal No. 36 of 2020**, where the High Court held that the security requirement under **Order 42 Rule 6(2)(b)** should not be imposed on an objector who was not the judgment debtor, and whose objection was grounded in proprietary claim to the attached property. **Respondent’s submissions** 1. The Respondent argues that the Applicant has not demonstrated proof of warranting the prayers sought and that the Trial Court had already directed itself on the law regarding objection proceedings under **Order 22** **Rule 51** of the Civil Procedure Rules. 2. It is his submission that in ***Precast*** ***Portal Structures v Kenya Pencil Company Ltd* [1993] eKLR,** the Court of Appeal authoritatively held that: ***"It is for the objector to establish ownership of the attached property and to show that it was not available for attachment.”*** 3. The Respondent further relies on ***Superfoam Limited & Another v Gladys Nchororo Mbero* [2014] eKLR,** and***Joel Muga Opija v East African Sea Food Limited* [2013] eKLR,** to submit that registration does not in itself determine ownership. Further he reliance is placed on ***Equity Bank Ltd v Gerald Wang'ombe Thuni* [2015] eKLR**, where the Court held that an objector must prove both ownership and possession of the attached property. **Analysis and determination** 1. This Court has considered the application, Affidavits and the rival arguments advanced by the parties. The sole issue for determination is whether the orders sought herein should issue. 2. The conditions precedent that must be met for issuance of orders of stay of execution pending appeal are laid down under **Order 42 Rule 6(2)** of the **Civil Procedure Rules.** **“(2) No order for stay of execution shall be made under subrule (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.”** 1. The guiding principles are equally settled. In ***Butt v Rent Restriction Tribunal* [1979] KECA 22 (KLR),** the Court of Appeal emphasized that discretion should be exercised to prevent injustice. The twin tests are whether the appeal is arguable and whether refusal of stay would render it nugatory. 2. On delay, the impugned decisions were delivered on 9th April , 2025 and 16th April, 2025. The Applicant filed the Memorandum of Appeal on 11th April, 2025 and the present Application on 24th April, 2025. Clearly, there was no unreasonable delay. 3. On substantial loss, superior Courts have consistently held that the loss must be specific and detailed. In ***Kenya Shell Ltd v Benjamin Karuga Kibiru & Anothe*r [1986] KCA 94 (KLR),** the Court of Appeal held that :- ***“It is not sufficient by merely stating that the sum of Shs 20,380.00 is a lot of money and the applicant would suffer loss if the money is paid. What sort of loss would this be? In an application of this nature, the applicant should show the damages it would suffer if the order for stay is not granted. By granting a stay would mean that status quo should remain as it were before judgment. What assurance can there be of appeal succeeding? On the other hand, granting the stay would be denying a successful litigant of the fruits of his judgment.”*** 1. The Court therefore cautioned that mere assertions of hardship are insufficient; the Applicant must show the precise prejudice that would result if stay is denied. 2. In this case, the Applicant asserts that execution would result in the sale of his motor vehicle, yet he was not a party to the suit. He further contends that the conditional stay orders are prejudicial as they impose liability on him for a judgement he was never subject to. 3. The Respondent however, raises legitimate concerns regarding the timing of the logbook transfer and possible collusion. However , these concerns remain matters for determination in the substantive appeal. 4. It is not in dispute that at the time of the accident, the motor vehicle was registered in the name of **SAMUEL GACHERU MWANGI** the judgement debtor. It is also not in dispute that by the time the Respondent was proceeding with execution registration of the subject vehicle had changed hands and was registered in the name of the Applicant herein. 5. Indeed, substantial loss is the cornerstone of granting stay, but the enforcement of one party’s rights to enjoy the fruits of his judgment should not be to the detriment of another party’s right to challenge the decision. The Applicant has therefore demonstrated potential substantial loss through the risk of sale of his vehicle. 6. On the requirement for security for due performance, this Court is guided by the principle articulated in the case of ***Arun C. Sharma v Ashana Raikundalia T/A Rairundalia & Co. Advocates & 2 others*[2014] KEHC 1412 (KLR)**, the Court in held that the purpose of security is to safeguard the decree holder to ensure the decree is not rendered illusory. However, while **Order 42 Rule 6(2)(b)** makes it mandatory, the circumstances are different. 7. The Court in the case of **Matata & another v Rono & another (Civil Appeal E034 of 2024) [2024] KEHC 2799 (KLR)** observed that:- ***“The Court must similarly consider the overriding objective and balance the interest of the parties to the suit while considering the issue of security to be offered. The law is that where the applicant intends to exercise his undoubted right of appeal, and in the event, that he were eventually to succeed, he should not be faced with a situation in which he would find himself unable to get back its money. Likewise, the respondent who has a decree in his favour should not, if the applicant were eventually to be unsuccessful in its intended appeal, find it difficult or impossible to realize the decree. This is the cornerstone of the requirement for security.*** 1. Though the Applicant is not a judgment debtor in the Decree emanating from Judgment in CMCC No. E351 of 2021,the substratum of the appeal is the proprietary interest of the Applicant in the subject motor vehicle. The motor vehicle records from the NTSA annexed confirm that the subject vehicle is currently registered in the name of the Applicant. However, that registration was done after notification was issued on execution proceedings. 2. This Court therefore finds that the Respondent’s concerns about collusion are legitimate but remain matters for the substantive appeal as the substratum of the appeal being the proprietary interest of the Applicant in the subject motor vehicle. However, however, ordering the Applicant to deposit monetary security may not be tenable 3. In conclusion therefore, this Court finds it just and expedient to issue the following Orders:- 4. **A stay of execution of the ruling delivered on the 9th of April 2025, in Molo CMCC No. E351 of 2021 and all other consequential orders be and is hereby issued pending hearing and determination of the instant Appeal.** 5. **The trial court’s conditional stay Order requiring deposit of half the decretal sum issued in Molo CMCC No. E351 of 2021 on the 16th of April 2025 is hereby set aside.** 6. **In substitution thereof, the Applicant shall within Seven (7) days of this Ruling deposit in Court the logbook of Motor Vehicle Registration Number KCA 881P.** 7. **The said vehicle shall not be disposed of or alienate pending determination of the appeal.** 8. **The Applicant shall file the record of Appeal within Forty-five (45) days of this Ruling.** 9. **In default of compliance with any of the Order 3, 4 and 5 above, the stay Orders issued herein automatically lapse.** 10. **Costs of this application shall abide by the outcome of the appeal.** **Dated and signed at Nairobi this 13th Day of July, 2026.**  **PATRICIA GICHOHI** **JUDGE** **Delivered at Nakuru this 13th Day of July 2026.** **………………………** **DR. JOSEPH SERGON** **JUDGE**