https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10135

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT NAIROBI** **HCCA NO. E470 OF 2026** **JOHN MWANGI KIHARA & ANOTHER …………………… APPELLANTS** **VERSUS** **ALBERT OKOTH MUYOYO………………………………….RESPONDENT** **RULING** 1. This ruling is in respect to the application dated 9th June 2026 wherein the Appellants/Applicants principally seek an order of stay of execution of the judgment and decree issued in Milimani CMCC No. E6864 of 2024 pending appeal, an order restraining the Respondent from selling motor vehicle registration number KAM 354U Toyota Hiace, the lifting the proclamation issued by Daystar Auctioneers on 3rd June 2026, release of the vehicle to the 2nd Appellant and costs. 2. The Application is brought under Order 42 Rule 6 of the Civil Procedure Rules (CPR) and Section 79G of the Civil Procedure Act (CPA) and is supported by the Affidavit of the 1st Appellant. **The Applicants’ Case** 1. The Applicants aver that they were never served with summons to enter appearance in respect to the subordinate court proceedings. They dispute the Affidavit of Service and seek an opportunity to cross-examine the process server. 2. They argue that the alleged places of service, namely Taj Mall and KCB Kitengela Banking Hall, were neither their residences nor places of business. They further contend that the Affidavit of Service contains inconsistencies, including a discrepancy in the telephone number allegedly used to identify the 1st Appellant. 3. The Appellants further assert that the process server's licence had expired by the time service was allegedly effected in February 2025, maintaining that a renewal receipt cannot substitute a valid licence and that the alleged service was therefore invalid. 4. According to the Appellants, absence of proper service deprived the trial court of jurisdiction and rendered the resulting judgment a nullity. 5. The Appellants also state that the accident giving rise to the suit involved motor vehicle KAU 424H, whereas the vehicle proclaimed in execution is KAM 354U, which, they maintain, is a different vehicle altogether. They state that KAM 354U belongs to the 2nd Appellant, is used as a public service vehicle generating approximately Kshs. 5,000 daily, and constitutes their only source of livelihood. They contend that its sale would occasion irreparable loss. 6. The Appellants further aver that KAU 424H was insured by AMACO Insurance Company under a valid third-party policy and that the accident was duly reported through the insurance intermediary. They state that AMACO acknowledged receipt of the claim and assured them that advocates would be instructed to defend the suit. They contend that no advocates were appointed, and that they were unaware that the proceedings were continuing until the proclamation issued on 3rd June 2026. 7. The Appellants submit that upon discovering the existence of the suit through the proclamation, they promptly instructed advocates and filed the present appeal within six days. They maintain that a party who was never served cannot be faulted for delay and that time cannot run against a litigant who had no notice of proceedings. 8. They further contend that the intended appeal raises arguable issues regarding jurisdiction, validity of service, the quantum of damages awarded, contributory negligence and the insurer's failure to defend the claim. They argue that granting a stay would merely preserve the status quo and that the Respondent would suffer no prejudice because the decree would remain enforceable should the appeal fail. **The Respondent's Case** 1. The Respondent opposed the application through the Replying Affidavit and Grounds of Opposition. 2. From the Grounds of Opposition referred to in the Replying Affidavit, the Respondent contends that the impugned judgment was delivered on 23rd January 2026 and that the appeal was filed outside the statutory period prescribed for appeals. 3. The Respondent further maintains that the appeal is incompetent and incapable of supporting an application for stay of execution. 4. The Respondent also disputes the grounds advanced by the Appellants, contending that the appeal does not disclose arguable issues warranting interference by the appellate court. 5. The Application was canvassed by way of written submissions which I have considered. **Analysis and Determination** 1. I have carefully considered the pleadings and the parties submissions, I find that the main issue for determination is whether the Applicants have made out a case for the granting of the orders sought in the application. 2. The principles governing stay of execution pending appeal are well settled. Order 42 Rule 6(2) CPR requires an applicant to demonstrate substantial loss, that the application has been made without unreasonable delay and to furnish such security for the due performance of the decree as the court may order. 3. In ***RWW vs. EKW* [2019] eKLR**, the Court emphasized that the purpose of stay is to preserve the subject matter of litigation so that the right of appeal is not rendered illusory. Similarly, in ***James Wangalwa & Another vs. Agnes Naliaka Cheseto* [2012] eKLR**, the Court observed that substantial loss is the cornerstone upon which the jurisdiction to grant stay rests. 4. The Respondent's first objection is that the appeal is incompetent. My take is that such a submission invites the Court to finally determine the competence of the appeal at an interlocutory stage. I am not persuaded that such an issue should be conclusively determined within the present application. My finding is that whether leave was required and whether the appeal is competent are substantive questions touching on the jurisdiction of the appellate court over the appeal itself. These questions are better determined upon appropriate application or at the hearing of the appeal after all parties have been fully heard. 5. Moreover, the memorandum of appeal, read together with the Notice of Motion and supporting affidavit, demonstrates that the Appellants principally challenge the validity of the proceedings culminating in the judgment and decree on the ground of want of service. I am of the view that these are not frivolous allegations. 6. In the present case, the Appellants have consistently denied service and challenge the Affidavit of Service on several grounds including the alleged places of service, inconsistencies in the identifying telephone number and the validity of the process server's licence. I find that whether those allegations ultimately succeed is a matter for determination upon evidence, including cross-examination if necessary. At this stage, the Court is only required to determine whether the appeal is arguable. 7. An arguable appeal is not one that must necessarily succeed. It is one raising bona fide issues deserving judicial consideration. The questions concerning service of summons, jurisdiction of the subordinate court and the validity of the default judgment are plainly arguable. I find guidance in the decision in ***James Kanyiita Nderitu & Another vs. Marios Philotas Ghikas & Another* [2016] eKLR**, where the Court of Appeal distinguished between regular and irregular default judgments and held that where service is not properly effected the resulting judgment is irregular and liable to be set aside as of right. 8. Similarly, in ***Dhiman vs. Shah* (Civil Appeal E380 of 2023) [2025] KECA**, the Court of Appeal reaffirmed that a judgment founded upon defective service cannot be sustained and that allegations of want of service deserve careful judicial examination. 9. On substantial loss, the evidence before this Court is that motor vehicle KAM 354U is a public service vehicle generating daily income for the 2nd Appellant. The Respondent has not disputed that the vehicle is presently under proclamation nor has he controverted the assertion that its continued attachment deprives the Appellants of their livelihood. 10. The Appellants also contend that KAM 354U is not the accident vehicle and that the accident vehicle had already been disposed off. Without expressing any conclusive view on that assertion, it cannot be gainsaid that once the attached vehicle is sold by public auction, restoration may prove difficult even if the appeal ultimately succeeds. Sale would permanently alter the subject matter of the appeal. 11. Conversely, I note that the Respondent holds a money decree. This means that should the appeal fail, execution remains available. The Respondent therefore suffers no prejudice incapable of compensation by maintaining the status quo pending determination of the appeal. 12. The application was filed within days of the proclamation. The Court therefore finds no unreasonable delay. 13. As regards security, it is trite that the Court must strike a balance between preserving the decretal rights of the Respondent and safeguarding the Appellants' constitutional right of appeal. I find that appropriate stay conditions will adequately protect both parties. 14. Having regard to the findings and observations that I have made in this ruling, I am satisfied that the Appellants have demonstrated an arguable appeal, established that they will suffer substantial loss and met the requirements of Order 42 Rule 6 of the Civil Procedure Rules. 15. Accordingly, the Notice of Motion dated 9th June 2026 is hereby allowed on the following terms: 16. ***There shall be a stay of execution of the judgment and decree in Milimani CMCC No. E6864 of 2024 pending the hearing and determination of this appeal.*** 17. ***The proclamation issued by Daystar Auctioneers on 3rd June 2026 in respect of motor vehicle registration number KAM 354U Toyota Hiace is hereby lifted.*** 18. ***The Respondent, his servants, agents and auctioneers are restrained from advertising for sale, selling, transferring, alienating or otherwise dealing with motor vehicle registration number KAM 354U pending the hearing and determination of the appeal.*** 19. ***Motor vehicle registration number KAM 354U shall forthwith be released to the 2nd Appellant upon payment of the auctioneers charges which shall be agreed upon or taxed by the court.*** 20. ***As security for the due performance of the decree, the Appellants shall:*** 1. ***deposit the original logbook for motor vehicle KAM 354U in the Deputy Registrar of this Court within fourteen (14) days; and*** 2. ***file within the same period a written undertaking that they shall not sell, transfer, charge, lease or otherwise dispose of the said motor vehicle pending determination of the appeal without leave of the Court.*** 21. ***The Appellants shall compile, file and serve the Record of Appeal within thirty (30) days, if not already filed, and thereafter take immediate steps to have the appeal admitted and listed for directions.*** 22. ***In default of compliance with paragraph e) above, the stay granted herein shall automatically lapse without further order of the Court.*** 23. ***Costs of this application shall abide the outcome of the appeal.*** It is so ordered. **DATED, SIGNED AND DELIVERED AT NAIROBI THIS 3RD DAY OF JULY 2026.** **HON. W A OKWANY** **JUDGE** **In the presence of;** Mulama for Applicant Ms Kanana for Kaburu for Respondent Abdirzak – Court Assistant