https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1264

Kenya Bus Services & 4 others v Kivunaga & another (Civil Application 171 of 2018) [2026] KECA 1264 (KLR) (3 July 2026) (Ruling) Neutral citation: [2026] KECA 1264 (KLR) Republic of Kenya In the Court of Appeal at Nairobi Civil Application 171 of 2018 WK Korir, HI Ong'udi & SO Okong'o, JJA July 3, 2026 Between Kenya Bus Services 1st Applicant Karanja Kabage 2nd Applicant Samuel Kimuchu Gichuru 3rd Applicant Edwins Mukabana Massimba 4th Applicant John Peter Mbogua 5th Applicant and Peninah Kamonya Kivunaga 1st Respondent JK (A minor suing by her next friend and mother PKK) 2nd Respondent (Being an application for stay of execution pending the lodging, hearing and determination of the intended appeal against the ruling and order of the High Court of Kenya at Nairobi (Thuranira, J.) dated 31st January 2017 in HCCA No. 288 of 2012) Ruling 1.The applicants, through the notice of motion dated 11th June 2018, seek “a stay of execution of the Orders given on 25th May 2012 and the Judgment and Decree given on 20th September 2007 in Milimani Chief Magistrate’s Court (Milimani) Civil Case No. 3851 of 2004 – PKK and JK (minor suing by her next friend and mother) versus Kenya Bus Services Ltd, against the directors of the 1st Applicant/Appellant.” The application, which came up for hearing before us on 23rd February 2026, was prosecuted by learned counsel, Ms. Khauser for the applicants. There was no appearance for the respondents despite service of the hearing notice. 2.In brief, the applicants’ averment is that upon a judgment for Kshs. 907,520/- being entered against the 1st applicant in favour of the respondents on 20th September 2007 in the Chief Magistrate’s Court at Milimani, and the Chief Magistrate’s Court making an order on 25th May 2012 holding the 2nd to 5th applicants personally liable for the settlement of the decretal sum due to the respondents from the 1st applicant, the applicants filed an appeal against the decision of the Chief Magistrate’s Court at the High Court at Milimani. Further, that through a judgment dated 31st January 2017, their appeal was dismissed and an attempt to stay the execution of the orders made by the trial court on 25th May 2012 and the judgment and decree of the said court delivered on 20th September 2007, pending an appeal against the High Court’s judgment of 31st January 2017 was dismissed on 17th May 2018. The applicants now seek a stay in the terms already stated, asserting that they have an arguable appeal that would be rendered nugatory should their application be declined. 3.Through submissions dated 5th March 2021, counsel argues that the motion, which is brought under rule 5 (2) (b) of the Court of Appeal Rules, seeks to stay execution of the orders given on 25th May 2012 and the judgment and decree given on 20th September 2007 in Milimani Court (Milimani Civil Case No. 3851 of 2004 – PKK and JK (minor suing by her next friend and mother) vs. Kenya Bus Services Ltd, pending the filing, hearing and determination of an intended appeal against the judgment delivered on 31st January 2017 by Thuranira, J. 4.According to counsel, the learned Judge erred in holding that the 2nd to 5th applicants, who were the directors of the 1st applicant were personally liable for the judgment and decree against the 1st applicant company as there was no proof of fraud or wrongdoing on the part of the directors. The learned Judge is also faulted for holding the directors liable, notwithstanding that the law allows the decree holder to file a declaratory suit against an insurer who has extended the third-party policy cover. It is, therefore, urged that the applicants have an arguable appeal. 5.On the nugatory aspect, it is submitted that the respondents' means of income and whereabouts are unknown, hence the need to stay execution of the decree. 6.We must confess that we are at a loss as to which order the applicants seek to stay. Whereas the motion seeks a stay of the judgment and decree of the trial court issued on 20th September 2007 and orders of the said court made on 25th May 2012, the supporting affidavit and submissions appear to target a judgment delivered by the High Court on 31st January 2017 and a ruling delivered on 17th May 2018 declining to stay the execution of that judgment. Despite the lack of clarity, here is our take on the application. 7.The applicants’ attempt to stay execution of the judgment of the trial court (magistrate’s court) fails since the judgment and decree sought to be stayed is not the subject of any appeal before this Court. In that regard, we align ourselves with the holding in Kibos vs. Kirui (Civil Application E002 of 2023) [2024] KECA 56 (KLR) that:“Having established that background, we wish to point out that in the notice of motion, the applicant is seeking stay of execution of the judgment and decree of the trial court. This Court’s jurisdiction is invoked by filing a notice of appeal and in this instance, the notice of appeal was filed against the ruling of the E&LC whereas the stay sought is against the judgment of the Magistrate’s Court. This Court is bereft of jurisdiction to issue the order of stay sought by the applicant as the Court is only moved upon filing a notice of appeal which must be with respect to the decision appealed against. In this case, there is no notice with regard to the decision of the Chief Magistrate’s Court. In any event, this Court has no jurisdiction to directly entertain appeals arising from the decisions of the magistrates’ courts. Impugned decisions from the magistrates’ courts are first appealed to the High Court or any of the courts of equal status before any aggrieved party can, where allowed, approach this Court on second appeal.” 8.As regards the merits of the application, we find that there is no notice of appeal or appeal filed against the order issued by the trial court on 25th May 2012. The Notice of Appeal dated 6th February 2017 is against the judgment delivered by the High Court on 31st January 2017, and that judgment is not among the decisions sought to be stayed through the application before us. There being no appeal before us, we cannot determine the arguability of a non-existent appeal or whether such an appeal would be rendered nugatory. 9.We, however, find it necessary to point out that Ms. Khauser also conceded at the hearing that no appeal had been filed against the judgment of the High Court dated 31st January 2017 pursuant to the Notice of Appeal dated 6th February 2017. That should be approximately nine years from the time the Notice of Appeal was filed. We say no more. 10.The end result is that the notice of motion dated 11th June 2018 is without merit and is for dismissal. It is hereby dismissed with no order as to costs since the respondent did not participate in the proceedings. DATED AND DELIVERED AT NAIROBI THIS 3RD DAY OF JULY 2026.W. KORIR................................JUDGE OF APPEALH. I. ONG’UDI................................JUDGE OF APPEALS. O. OKONG’O................................JUDGE OF APPEALI certify that this is a True copy of the originalSignedDeputy Registrar