Irungu & another v Matheka [2026] KEHC 13677 (KLR)

Irungu & another v Matheka (Civil Appeal E677 of 2022) [2026] KEHC 13677 (KLR) (Civ) (17 September 2026) (Ruling) Neutral citation: [2026] KEHC 13677 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Law Courts) Civil Civil Appeal E677 of 2022 LP Kassan, J September 17, 2026 Between Duncan Gatuiku Irungu 1 st Applicant Joshua Musyoka Nzau 2 nd Applicant and Charles Kyalo Matheka Respondent Ruling Introduction 1. The Applicants moved this Court by way of a Notice of Motion dated 13th October 2025 seeking a temporary stay of execution of the judgment and decree in Milimani CMCC No. 8435 of 2018 (and the consequential Notice to Show Cause proceedings) pending the hearing and determination of an appeal lodged before the Court of Appeal (Civil Appeal No. E031 of 2025). The application was opposed by the Respondent. Background 2. The primary suit, CMCC No. 8435 of 2018, resulted in judgment against the Applicants. Their application to set aside that judgment was dismissed by the trial court, and their appeal against that dismissal — the present Civil Appeal No. E677 of 2022 — was in turn dismissed by this Court on 26th September 2024. The Applicants now face execution of the original trial court decree through Notice to Show Cause proceedings, and have lodged a second appeal before the Court of Appeal (Civil Appeal No. E031 of 2025), in respect of which they seek interim protection.

3. The Applicants contend, in substance, that they were never served with summons in the primary suit; that counsel who appeared for them was instructed solely by their insurer (Xplico Insurance) without their personal mandate; and that execution against them personally in those circumstances would violate their right to a fair hearing under Article 50 of the Constitution . They further raise the applicability of Section 10 of the Insurance (Motor Vehicle Third Party Risks) Act to the insurer's conduct of the defence.

4. The Respondent resisted the application, submitting that this Court became functus officio upon delivering its judgment of 26th September 2024; that a negative order of dismissal cannot found a stay; that the Applicants did not obtain leave to appeal under Section 75(2) and Order 43 Rule 1 of the Civil Procedure Rules; and that no security has been offered under Order 42 Rule 6. Issues for Determination I. Whether this Court, having dismissed the underlying High Court appeal, retains jurisdiction to entertain an application for stay of execution ancillary to that appeal. II. Whether the doctrine barring stay of a negative order applies to bar a stay of execution of the trial court's decree. III. Whether, and on what terms, the Applicants meet the threshold under Order 42 Rule 6 of the Civil Procedure Rules. Analysis (a) Jurisdiction and Functus Officio 5. It is correct that this Court, having rendered its judgment of 26th September 2024 dismissing the appeal on its merits, cannot reopen or vary that judgment; to that extent it is functus officio. That principle, however, goes to the finality of the judgment itself — it does not strip the Court of jurisdiction to entertain a properly framed ancillary application, such as a stay of execution of the decree under appeal to a higher court, where the applicant's substantive appeal remains pending before the Court of Appeal and no

application for stay has yet been determined by that court. A court which has decided a matter finally on its merits is not thereby disabled from making orders reasonably incidental to the protection of a party's right to pursue a further appeal; were it otherwise, a litigant would in every case be forced to approach the Court of Appeal in the first instance for stay under Rule 5(2)(b), which, while an available route, is not the only one, and this Court is entitled to consider the application on its merits rather than decline it purely on jurisdictional grounds.

6. The Court therefore proceeds to determine the application on its merits, rather than disposing of it solely on functus officio grounds. (b) The Negative Order Doctrine 7. The Respondent is correct that a stay of execution cannot issue in respect of a purely negative order — that is, an order that does no more than dismiss a claim, without directing any party to pay money or perform an act. This Court's judgment of 26th September 2024 was such an order: it dismissed the Applicants' appeal and created nothing capable of execution in the Respondent's favour out of this Court.

8. That principle, however, answers the wrong question. The Applicants are not seeking to stay this Court's dismissal order. They seek to stay execution of the decree of the trial court in CMCC No. 8435 of 2018 — a positive, executable decree for a specific sum, which is the actual subject of the Notice to Show Cause proceedings. The fact that this Court's dismissal of the appeal left that decree undisturbed does not convert the decree itself into a negative order, nor does it place the decree beyond the reach of a stay application properly brought in relation to it. The negative order doctrine, correctly applied, is no bar to the relief sought. (c) Order 42 Rule 6: Substantial Loss, Delay, and Security 9. Order 42 Rule 6(2) requires the Court to be satisfied as to substantial loss, absence of unreasonable delay, and the provision of security for due performance of the decree. These three considerations are not weighed in isolation; the sufficiency of security in particular is informed by the strength and nature of the grounds relied upon, and the Court retains discretion to grant stay on terms rather than to refuse it outright for want of security offered unprompted in the founding affidavit.

10. The application was filed within a reasonable time of the events giving rise to it, and delay is not seriously in issue.

11. As to substantial loss, execution of a decree of Kshs 965,570/= against the Applicants personally, in circumstances where they raise a good-faith and specifically pleaded challenge to service and to the authority of the advocate who represented them, is capable of causing loss that cannot later be undone if the second appeal succeeds — particularly given the practical difficulty of recovering sums paid out from a judgment-creditor after the fact. That said, the mere assertion that "no security should be demanded from a party who was never heard" is not a legal basis to dispense with security altogether; it is, at most, a basis to moderate its quantum and form, pending resolution of the service and authority questions on appeal.

12. The threshold questions the Applicants raise — want of service, the scope of an insurer's authority to instruct counsel under Section 10 of the Insurance (Motor Vehicle Third Party Risks) Act, and the consequences for a judgment obtained in those circumstances — are neither frivolous nor academic. They go to the root of whether the judgment debt is enforceable against the Applicants personally at all. Fairness requires that these questions be tested on appeal before the Applicants are exposed to the full, irreversible consequences of execution, but fairness to the Respondent equally requires that his judgment not be indefinitely frozen without protection for the sum it represents. Disposition 13. Balancing these considerations, the just course is a conditional stay: protection for the Applicants pending determination of Civil Appeal No. E031 of 2025, coupled with security that safeguards the Respondent's decree should that appeal fail. Orders 1. The Notice of Motion dated 13th October 2025 is allowed in part.

2. There shall be a stay of execution of the decree in Milimani CMCC No. 8435 of 2018, and of the Notice to Show Cause proceedings arising therefrom, pending the hearing and final determination of Civil Appeal No. E031 of 2025.

3. The stay granted in order (2) is conditional upon the Applicants depositing 50% of the decretal sum, being Kshs 482,785/=, in a joint interest-earning account in the names of the advocates for the parties, within 45 days of this ruling, and furnishing a bank guarantee for the balance within the same period.

4. In default of compliance with order (3) within the stipulated period, the stay granted herein shall lapse automatically without further reference to this Court, and the Respondent shall be at liberty to proceed with execution.

5. The Applicants shall take necessary steps to have Civil Appeal No. E031 of 2025 fixed for expedited hearing.

6. Costs of this application shall abide the outcome of Civil Appeal No. E031 of 2025. DATED, SIGNED, AND DELIVERED AT NAIROBI THIS 17 TH DAY OF SEPTEMBER 2026. HON. L. P. KASSAN

JUDGE