Kisilu t/a Kind Medical Services v Transwide Pharmaceuticals Ltd & another (Civil Appeal E089 of 2025) [2026] KEHC 11238 (KLR) (23 July 2026) (Ruling)

**REPUBLIC OF KENYA** **IN THE HIGH OF KENYA AT MERU** **CIVIL APPEAL NO. E089 OF 2025** **KENNEDY KAUNDA KISILU T/A KIND MEDICAL SERVICES ……………………………………………..……..APPELLANT/APPLICANT** **VERSUS** **TRANSWIDE PHARMACEUTICALS LIMITED.……...RESPONDENT** **AND** **UPSTATE KENYA AUCTIONEERS…………….INTERESTED PARTY** **RULING** 1. For determination is the Notice of Motion dated 20/11/2025 under **Order 9 Rule 9, Order 22 Rules 22, Order 40 Rules 1, 2, 3 and 4 and Order 42 Rule 6 of the Civil Procedure Rules, Sections 1A, 1B, ЗA & 63 (3) of the Civil Procedure Act, Articles 50 and 159 (2) (a) of the Constitution**, seeking that: 1. **Spent.** 2. **The firm of KAIMENYI KITHINJI & CO. ADVOCATES be granted leave to come on record for the Appellant/Applicant herein in lieu of M/S KABUTHII MOOTIAN NYAGA & CO. ADVOCATES.** 3. **Spent** 4. **Spent** 5. **This Honourable court be pleased to order stay of execution of the default Judgment entered on 21st January, 2025, the decree plus costs and interest thereon and all other consequential orders in MERU SMALL CLAIMS COURT CASE NO. E917 OF 2024 pending the hearing and determination of this appeal.** 6. **This Honourable Court be pleased to issue an order directing the Interested Party herein, UPSTATE KENYA AUCTIONEERS to forthwith release the Applicant’s/Appellant’s motor vehicle registration No. KBX 773S which they are in possession of unconditionally.** 7. **The Honourable Court be pleased to issue an order of an interlocutory injunction restraining the Respondent whether by itself, its agents, servants, representatives, employees in particular Messrs. UPSTATE KENYA AUCTIONEERS and/or any other Auctioneers and/or** **anybody else acting or claiming on its behalf from proclaiming, attaching, depriving, offering for sale by public auction, or otherwise howsoever interfering with the Applicant’s/Appellant’s motor vehicle registration No. KBX 773S, selling or advertising any other Applicant’s/Appellant’s movable properties pending the hearing and determination of this appeal.** * 1. **Costs of this application be provided for.** 1. The application is premised on the grounds that the Respondent herein filed MERU SMALL CLAIMS COURT CASE NO. E917 OF 2024 against the Applicant seeking compensation of Ksh. 985,106.35 and costs and interest of the suit. The matter was scheduled for hearing on 21/1/2025 when default judgment was entered as a result of the Applicant’s failure to attend court, notwithstanding the fact that he was never served with the pleadings. When the Interested Party proclaimed his motor vehicle registration No. KBX 773S and other movable properties,he immediately sought review and/or setting aside of the default Judgment and an opportunity to be heard, but his application was dismissed on 29/4/2025. He hurriedly filed this appeal, but his previous Advocates mistakenly sought stay of execution of the Ruling of 29/4/2025 instead of the default Judgment and the resultant decree. The Applicant has since been condemned unheard as the Respondent and the Interested Party are proceeding with the execution of the default Judgment, and his motor vehicle will be sold unless this Honorable court intervenes. He beseeches this Court to grant the orders sought herein to enable him pursue this appeal, which has high chances of success, and to facilitate a fair hearing for the just determination of this matter. There was no delay in bringing this application, and this appeal will be rendered nugatory and academic if this application is not allowed. The Applicant stands to be subjected to untold suffering, loss and damage and justice shall not only not be done but also not seen to have been done equally to the parties if this application is not allowed. 1. The Respondent opposed the application vide a Replying Affidavit sworn by Linus Kinoti, its Credit Controller, on 15/6/2026. He averred that the application was not only incompetent but also *res judicata* and the court was *functus officio* on the issue of stay pending appeal. The Memorandum of Appeal expressly challenges the Ruling of 29/4/2025 and not the default Judgment entered on 21/1/2025. The Applicant cannot circumvent the previous determination of this court by merely reframing substantially similar prayers under a subsequent Application. By the time the Applicant served the orders issued herein, motor vehicle registration number KBX 773 S had already been sold pursuant to execution proceedings, and the prayers relating to the motor vehicle have been overtaken by events and are incapable of implementation. The Applicant has not demonstrated the substantial loss he stands to suffer if the orders sought are not granted, and, in any event, execution of a lawful decree is a legal process sanctioned and supervised by the Courts, and the Applicant cannot therefore be heard to contend that he shall suffer substantial loss merely because the Respondent has commenced lawful execution proceedings. In any event, the Applicant has not offered any security whatsoever for the due performance of the decree as required under **Order 42 Rule 6 (2) of the Civil Procedure Rules**, and the application is intended solely to delay, obstruct and frustrate the Respondent from enjoying the fruits of a lawful Judgment and decree obtained in its favour. 1. The application was canvassed by way of written submissions, which counsel duly filed. **Determination** 1. Having considered the application, the response and the submissions on record together with the authorities relied on, I find the issue for determination to be whether the orders sought ought to issue. 2. The Applicant seeks temporary injunction pending the hearing and determination of the appeal and pursuant to **Order 42 Rule 6 (6) of the Civil Procedure Rules**, the High Court is vested with jurisdiction to entertain such an application as follows; ***“Notwithstanding anything contained in subrule (1) of this rule the High Court shall have power in the exercise of its appellate jurisdiction to grant a temporary injunction on such terms as it thinks just provided the procedure for instituting an appeal from a subordinate court or tribunal has been complied with.”*** 1. In ***Kenya Commercial Finance Co. Ltd v Afraha Education Society [2001] 1 EA 86***, the Court of Appeal held that, ***“The sequence of steps to be followed in the enquiry into whether to grant an interlocutory injunction is (i) whether the applicant has laid out a prima facie case with a probability of success; (ii) whether the Applicant might suffer irreparable injury if the injunction is not granted; and (iii) (if there is doubt) whether the balance of convenience favours the applicant; Giella v Cassman Brown and Co Ltd [1973] EA 358. The conditions for granting an interlocutory injunction are sequential so that the second condition can only be addressed if the first one is satisfied and when the court is in doubt the third one can be addressed.”*** 2. Whereas the Applicant contends that the sale of his motor vehicle will occasion him untold suffering and render the appeal nugatory, the Respondent terms the application a delay tactic intended to obstruct and frustrate its enjoyment of the fruits of a lawful Judgment. 3. It has innumerably been held that execution is a lawful process, and does not in itself constitute substantial loss. 4. In ***James Wangalwa & Another v Agnes Naliaka Cheseto [2012] eKLR*** the Court *(F. Gikonyo J)* expressed as follows; ***“No doubt, in law, the fact that the process of execution has been put in motion, or is likely to be put inmotion, by itself, does not amount to substantial loss. Even when execution has been levied and completed, that is to say, the attached properties have been sold, as is the case here, does not in itself amount to substantial loss under Order 42 Rule 6 of the CPR. This is so because execution is a lawful process. The Applicant must establish other*** ***factors which show that the execution will create a state of affairs that will irreparably affect or negate the very essential core of the Applicant as the successful party in the appeal. This is what substantial loss would entail, a question that was aptly discussed in the case of Silverstein N. Chesoni [2002] 1KLR.”*** 5. In my considered view, the Applicant’s anticipated loss can be quantified and compensated by an award of damages, if his appeal eventually succeeds. 6. I find that the Applicant has failed on the test of ***Giella v Cassman Brown (1973) EA 358***, to establish a prima facie case with probability of success, and that damages would be inadequate compensation, in order to succeed in his application. 7. Suffice it to add, it is apparent from the certificate of sale exhibited by the Respondent that Motor Vehicle Registration No. KBX 773 S was sold by way of Public Auction to Jane Waithera Kamau on 24/11/2025, whereas the interim injunctive orders were issued on 25/11/2025. Ostensibly, the sale sought to be stayed has already been concluded. Consequently, the application has been overtaken by events and is, for all intents and purposes, spent. 8. In the earlier application dated 25/4/2025, the Applicant sought stay of execution of the Ruling of 29/4/2025, whilst in the present application, he principally seeks stay of execution of the default Judgment entered on 21/1/2025. The 2 applications are thus substantially different, and the issues of res judicata and *functus officio* do not therefore arise. 9. On leave to come on record, the provisions of **Order 9 Rule 9 of the Civil Procedure Rules** make it mandatory that for any change of Advocates after Judgment has been entered, there must be an order of the Court upon application with notice to all parties or upon a consent filed between the outgoing advocate and the proposed incoming Advocate. 10. In order not to impede the Applicant’s right to be represented by an Advocate of his choice, I hereby grant the leave sought. 11. The upshot from the foregoing is that the application dated 20/11/2025 is in want of merit, and it is hereby dismissed, save for the prayer seeking leave for the Firm of Kaimenyi Kithinji & Co. Advocates to come on record. 12. Costs goes to the Respondent. **DATED AND DELIVERED AT MERU THIS 23RD DAY OF JULY, 2026.** **S.M. GITHINJI –JUDGE** **23/7/2026** **In the presence of:-** Mr. Chebii for the Respondent Mr. Kaimenyi for the Applicant/Respondent (absent) Court:- Mention on 21/9/2026. **S.M. GITHINJI –JUDGE** **23/7/2026**