https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9427

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT NAIROBI** **[MILIMANI LAW COURTS]** **THE CIVIL APPELLATE D IVISION** ***(Coram: A.C Mrima, J.)*** **SMALL CLAIMS CIVIL APPEAL.NO.E155 OF 2025** ***-between-*** **GEORGE KITAR KATHAE…………….………………………….………. APPLICANT** ***-versus-*** **WINFRED NJERI NGURE………………..……….…….……. …...1st RESPONDENT** **BOSWELL NYASUNGE…………………………….…………………2nd RESPONDENT** **RULING** 1. The application subject of this ruling is the Notice of Motion dated 28th July 2025 filed by the Applicant seeking to stay the default judgement entered in*Nairobi [Milimani] SCCC No. E668 of 2021*and that the Ruling of the trial Court dated 24th July, 2025 be set aside pending the determination of the appeal. 2. The application was anchored on *inter alia* grounds that an application to set aside the interlocutory judgment was dismissed by the trial Court upon which decision the Applicant filed the instant appeal. To the Applicant, the appeal has prospects of success and unless the default judgement is stayed, he would suffer substantial and irreparable loss that cannot be adequately compensated by damages. 3. The 1st Respondents strenuously opposed to the application. She relied on a sixty-six paragraph Replying Affidavit sworn by *Alice Wangari*, Learned Counsel, on 26th September 2025. Counsel averred that the application lacked justifiable grounds to warrant grant of the orders sought. She emphasized that the Applicant had failed to demonstrate that he would suffer irreparable loss should the orders sought be declined. Additionally, she reiterated that the Applicant’s application to set aside the judgment was rightly dismissed as it sought reliefs that had already been conclusively determined. She submitted that the discretion to set aside an order or ruling is not unfettered but must be exercised judiciously where the Applicant demonstrates excusable mistake, inadvertence, accident or error. She contended that the Applicant had failed to demonstrate these parameters and faulted the Applicant for forum shopping and disobedience having been granted conditional leave to defend the suit. 4. Learned Counsel reiterated that the Applicant would not suffer prejudice or substantial loss if execution proceeds as the judgment sum is recoverable in the alleged declaratory suit or from the third party. She emphasized that the Applicant has failed to lay any basis to justify grant of the orders sought and as such, urged this Court to dismiss the application with costs. 5. The 2nd Respondent did not participate in the instant application. 6. By directions of this Court, the application was canvassed by way of written submissions. Whereas the 1st Respondent filed her written submissions dated 28th November 2025, the Applicant did not. 7. Having carefully considered the application, the grounds and Affidavit in support, the Response and written submissions, the issue that stands to be determined is whether the application is merited. 8. At the heart of this appeal is the issue as to whether the trial Court correctly declined to set aside the default judgment. Before then, the Applicant seeks to maintain the *status quo* urging that any execution will render him suffer irreparably. It is the Applicant’s plea that he had sold the subject vehicle to a third party when the accident occurred and as such, he is not liable, but his position was declined by the trial Court. Be that as it may, one of the key issues in the appeal will be whether the Applicant had reasonable grounds for not defending the suit upon service, if at all any was effected. 9. By balancing the interests of the parties herein, more so given the disposition by the 1st Respondent in tracing the history of this matter, alongside the provisions of *Order 42 Rule 6* of the *Civil Procedure Rules*, this Court finds that the Applicant be granted a conditional stay of execution pending the determination of the appeal. The prayer seeking to set-aside the trial Court’s ruling dated 24th July 2025, which is the subject of appeal, is disallowed since that falls within the realm of the main appeal. 10. In the end, the following orders hereby issue: - **[a] There be a stay of execution of the judgment and decree in *Nairobi [Milimani] SCCC No. E668 of 2021* pending the determination of this appeal on condition that the Applicant shall deposit the decretal sum in COURT within 21 days of this order failure to which the stay orders shall automatically lapse and stand discharged and execution shall issue forthwith.** **[b] Since the appeal is against a ruling, the following directions do hereby issue: -** **[i] The filing of a Record of Appeal is hereby dispensed with. The trial Court’s file will be availed.** **[ii] The Appellant will file and serve written submissions on the main appeal within 14 days of this order.** **[iii] Once served, the Respondents will file and serve their counter-submissions within 14 days of service.** **[c] This matter shall be fixed for highlighting of submissions on a date to issue.** Orders accordingly. **DELIVERED, DATED** and **SIGNED** at **NAIROBI** this **23rd** day of **June, 2026.** **A. C. MRIMA** **JUDGE** **Ruling virtually delivered in the presence of:** **Miss Mwongela**,Learned Counsel forthe Applicant. **Miss Wangari,** Learned Counsel for the 1st Respondent. No appearance for the 2nd Respondent. **Michael/Amina –** Court Assistants.