https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10217

Maina v Bank of Africa Kenya Ltd (Civil Appeal E256 of 2025) [2026] KEHC 10217 (KLR) (6 July 2026) (Ruling) Neutral citation: [2026] KEHC 10217 (KLR) Republic of Kenya In the High Court at Nakuru Civil Appeal E256 of 2025 JM Nang'ea, J July 6, 2026 Between Daniel Oeta Maina Applicant and Bank of Africa Kenya Limited Respondent Ruling 1.For determination is the Appellant's Notice of Motion Application dated 3/3/2026 for orders as hereunder;1.Spent2.Spent3.Stay of the execution of Warrants of Attachment and proclamation for sale by the Respondent dated 19th March 2026 will all its attendant consequences pending the hearing and determination of the intended Appeal.4.That the costs of the application be in the cause. 2.By Affidavit he swore on 3rd March 2026 in support of the Motion, the Appellant alludes to the court's Ruling of 26th January 2026 dismissing his Application for injunction to restrain the Respondents and/or its agents from selling and/or otherwise interfering with his property charged to secure a loan advanced by the 1st Respondent. He expresses his dissatisfaction with the Ruling and evinces intention to lodge appeal in the Court of Appeal. The Court is further told inter alia that the Respondents have meantime commenced execution of warrants of attachment dated 19th March 2026 purportedly issued in this Appeal following the impugned Ruling of 26th `January 2026. It is feared that the intended Appeal would be rendered nugatory if the Ruling delivered on 26th January 2026 and/or the ensuing order is executed. 3.The Appellant states his willingness and readiness to abide by any conditions as may be set by the Court if stay of execution is granted. 4.In the alternative to the prayers sought, the Appellant suggests that the "main claim" be heard and determined and Judgment delivered whilst injunctive orders in place. 5.In response to the Application, the 1st Respondent filed Grounds of Opposition contending as hereunder;1.That the Ruling dated 26th January 2026 dismissed the Appellant's Application dated 8th October 2025 and is consequently a negative order incapable of being stayed.2.That the instant application offends the doctrine of res judicata in so far as the matter of whether the Appeal would be rendered nugatory if the subject matter is disposed of and if any prejudice would be occasioned were determined in the Ruling dated 26th January 2026.3.That no evidence of an appeal to the Court of Appeal has been shown, contrary to the provisions of Order 42 Rule 6(4) of the Civil Procedure Rules.4.That it is settled law that a Chargee’s statutory power of sale of charged property does not amount to substantial loss since charging of the property renders it a commodity available for sale upon default. 6.The 2nd Respondent has not put in a reply. 7.The Court's e-filing portal shows that the Appellant's Advocates subsequently filed a Chamber Summons dated 6th May 2026 seeking leave to withdraw from the matter for want of further instructions. This Application has not been heard and determined, however. Be that as it may, the 1st Respondent's Advocates filed written submissions dated 15th May 2026 on the Application. 8.Only the 1st Respondent filed submissions through its Advocates, which I have perused against the rival affidavits and the record. 9.As pointed out by the 1st Respondent, the Application is defective as the order emanating from the Ruling of 26th January 2026 is not capable of stay pending appeal. It was a negative order, and it is trite law that stay of execution of such an order may not issue. 10.As per the submissions of the 1st Respondent’s Advocates, this Application is also analogous to the one dated 8th October 2025 which was dismissed on 26th January 2026. The court had found that the Applicant would not suffer substantial loss if the charged property is sold off by the 1st Respondent as the chargee. The Appellant cannot therefore argue, as he does in this Application, that the Appeal would be rendered nugatory if stay is not granted. I agree that this Application in the circumstances may be res judicata. 11.The upshot is that the Application is dismissed with costs to the 1st Respondent. RULING DATED, SIGNED AND DELIVERED VIRTUALLY THIS 6TH DAY OF JULY, 2026.J. M. NANG’EA, JUDGE.In the presence of:Applicant’s Advocate, AbsentMr. Mayiga Advocate for the 1st Respondent2nd Respondent, AbsentCourt Assistant (Jeniffer).