https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7216

Mbaka v Mbai (Civil Appeal E902 of 2025) [2026] KEHC 7216 (KLR) (Civ) (19 May 2026) (Ruling) Neutral citation: [2026] KEHC 7216 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Law Courts) Civil Civil Appeal E902 of 2025 AN Ongeri, J May 19, 2026 Between Benson Kinyua Mbaka Appellant and Beatrice Atieno Mbai Respondent Ruling 1.The application coming up for consideration in this ruling is the one dated 28/8/2025 seeking a stay of execution of a court ruling rendered on August 7, 2025. 2.The applicant is asking the court for the following remedies;i.Temporary stay of execution pending the hearing and determination of the application. (Spent)ii.Stay of execution of the lower court's ruling and all subsequent orders pending the full hearing and determination of the instant appeal.iii.A stop order to Quickline Auctioneers from removing, selling, or disposing of the applicant's attached movable properties (which include a fleet of commercial vehicles and shop stock) via public auction.iv.The court to certify the matter as urgent so it can be heard and disposed of expeditiously. 3.The application is supported by the affidavit of Benson Kinyua Mbaka sworn on 28/8/2025 as follows;i.The applicant stated that he is the appellant/applicant in the matter, was well-versed with the particulars of the suit, and was therefore competent to make the oath.ii.He deponed that an interlocutory judgment had been entered against him in Chief Magistrates Milimani Commercial Court Case No. E2504 of 2021 on 15th November 2023 due to his failure to enter appearance and defence.iii.He stated that on 12th April 2024, he had been served with a warrant of sale of property in execution of a decree for money by Quickline Auctioneers, acting on instructions from the firm of Muturi Kamande & Co. Advocates.iv.He noted that Quickline Auctioneers had attached and proclaimed several of his movable properties, which included motor vehicles registration numbers KBY 058 T (Ksh 600,000), KBM 771S (Ksh 200,000), KBC 454S (Ksh 600,000), KCF 262S (Ksh 500,000), KBN 893F (Ksh 400,000), KBU 027H (Ksh 400,000), stock at Shop Imani Traders at Chuka (to be determined), and any other movable property to be determined.v.He expressed astonishment and surprise that his movable properties had been attached for sale through a court warrant, considering that he had not been served with the summons to enter appearance, the plaint, or the compliance documents.vi.He stated that he had moved quickly to file a notice of motion application dated 18th April 2024 seeking a stay of the sale of his movable properties.vii.He deponed that the notice of motion application dated 18th April 2024 had been dismissed, through a ruling dated 7th August 2025.viii.He stated that he had been grossly and adversely affected by the said ruling, and would suffer irreparable loss if a stay of execution was not granted pending the hearing of the application and the appeal.ix.He averred that if the attached movable properties were sold by public auction, his transport business would halt to the detriment of his entire family, including his wife and school-going children.x.He noted that the trial court had held in her ruling that the right to be heard was not absolute, which he believed was neither the correct nor good law.xi.He stated that since he contested being served with the summons to enter appearance, it was in the wider interest of justice that he be granted an opportunity to defend himself rather than have the suit determined on technicalities.xii.He asserted that any error or omission, which he contested, could be cured by Article 159 of the Constitution, which requires courts to serve justice rather than be bogged down by technicalities.xiii.He contended that if the respondent had a good case with overwhelming chances of success, they should have nothing to fear if he was granted leave to file a defence and have the suit determined on merit.xiv.He stated that it was in the wider interest of justice and fairness for the prayers to be granted, otherwise the appeal would be rendered nugatory if the respondent proceeded to execute the interlocutory judgment.xv.He averred that no party stood to suffer any prejudice if the sought orders were granted.xvi.He concluded that the orders sought were the best and most apt under the circumstances, and that substantive justice required them to be granted for justice to be done and seen to be done. 4.The respondent opposed the application by filing a replying affidavit in which he deponed that the applicant's said application had been dismissed by the court through a ruling dated 7th August 2025. 5.He stated that by virtue of the said dismissal, there was nothing to be stayed from the ruling as sought in the instant application, and consequently prayed that the application be dismissed with costs. 6.The parties filed written submissions as follows; The appellant submitted that the instant application seeks for stay of execution of exparte judgement in Chief Magistrates Court Milimani CMCC E2506 of 2021 rendered on 156/11/2023 pending the hearing of the instant application and the appeal. Order 42 Rule 6 provides for the application for stay of execution and provides that2)No order for stay of execution shall be made under subrule (1) unless—(a)the court is satisfied that substantial loss may result to the applicant unless the order is made and that the application has been made without unreasonable delay; and(b)such security as the court orders for the due performance of such decree or order as may ultimately be binding on him has been given by the applicant. 7.The appellant agued that he will suffer loss and damage of the orders for stay are not granted because the estimated value of the attached commercial vehicles is Kshs. 2,700,000 against the debt to the respondent of Kshs. 810,826. If sold the appellants business will come to a halt and the appellant and his family will be rendered destitute as they rely on the transport business and the vehicles are tools of trade. 8.The appellant contended that the right to be heard is fundamental in the rule of law and if the stay of execution is not granted herein the respondent will be will be at liberty to dispose of the appellant’s motor vehicles. The appellant pleaded for a chance to be heard before being condemned according to the rules of natural justice. 9.The respondent alternative submitted that by an application dated 18/4/2024, filed before the Lower Court, the Appellant had sought for among other orders the setting aside of the Lower Court's judgment and leave to defend the case thereat and by a Ruling delivered on 7/8/2025, the Lower Court dismissed that application in view of which there is thus nothing to be stayed by this Court in a dismissed application and allowing the application herein as prayed would amount to a futile exercise. 10.The issues for determination in the application dated 28/8/2025 are as follows;i.whether the High Court can grant a stay of execution in respect of a negative order or a dismissed application from the lower court, andii.whether the appellant has satisfied the conditions for a stay of execution under Order 42, Rule 6 of the Civil Procedure Rules. 11.In rendering the final decision on this matter, this court must be guided by the established principles of Kenyan law regarding applications for stay of execution pending appeal. 12.The respondent has raised a fundamental objection, arguing that because the lower court dismissed the appellant's application to set aside the default judgment on August 7, 2025, there is nothing for this court to stay. 13.This argument touches on the nature of "negative orders." A negative order, such as an order dismissing an application, cannot be stayed because it does not command any party to do or refrain from doing anything; it merely refuses to grant the relief that was sought. 14.A negative order cannot be the subject of a stay of execution because there is nothing to execute, and granting a stay of a negative order would be a futile exercise that would amount to attempting to stay nothing. 15.However, a critical distinction must be made in the circumstances of the present case. While the ruling delivered on August 7, 2025, was indeed a dismissal and thus a negative order, the underlying decree being executed by Quickline Auctioneers arises from the interlocutory default judgment entered against the appellant on November 15, 2023. 16.The appellant is facing the imminent risk of having his fleet of commercial vehicles and shop stock sold via public auction to satisfy a debt of Kshs. 810,826. 17.Where a negative order leaves an applicant exposed to the execution of an underlying money decree or the sale of attached property, the High Court possesses the inherent jurisdiction to grant preservation orders or a stay of the underlying execution to prevent an appeal from being rendered nugatory. 18.Therefore, this court is competent to look beyond the mere form of the lower court's dismissal to address the active execution processes currently threatening the appellant's property. 19.To succeed in an application for a stay of execution pending appeal, the appellant must strictly satisfy the tripartite test set out under Order 42, Rule 6(2) of the Civil Procedure Rules. First, the applicant must demonstrate that substantial loss may result unless the order is made. 20.The appellant has deponed that the attached commercial vehicles have an estimated value of Kshs. 2,700,000, which far exceeds the respondent's debt of Kshs. 810,826. 21.He has further shown that these vehicles are his primary tools of trade and the backbone of his transport business. If they are sold by public auction, his livelihood will be completely destroyed, and his family will be rendered destitute. 22.The court finds that the imminent auction of a party's essential tools of trade and business assets to satisfy a claim constitutes substantial loss that cannot be easily repaired by damages, particularly if the appeal succeeds. 23.The second condition is that the application must be made without unreasonable delay. The lower court's ruling dismissing the appellant's application was delivered on August 7, 2025. 24.The appellant filed the instant application before the High Court on August 28, 2025, which is exactly twenty-one days after the lower court's decision. 25.A delay of less than a month is perfectly reasonable and demonstrates that the applicant moved with due diligence to protect his interests immediately after his options at the lower court were exhausted. 26.The third condition requires the applicant to offer or provide security for the due performance of the decree. 27.The purpose of this security is to ensure that the respondent is not unfairly kept away from the fruits of their judgment if the appeal fails, thereby balancing the competing interests of both parties. 28.The appellant has expressed a strong desire to be heard on the merits of the case, challenging the service of the original summons and invoking Article 159 of the Constitution of Kenya to argue that justice should not be defeated by technicalities. 29.While the right to be heard is a cornerstone of natural justice, the respondent's monetary interest must be secured during the pendency of the appeal. 30.Consequently, this court finds that the appellant has met the threshold for a stay of execution, but such relief must be conditional upon securing the respondent's claim. 31.It is hereby ordered that the application dated August 28, 2025, is allowed, and a stay of execution of the lower court's decree and all subsequent enforcement actions, including the sale of the applicant's attached movable properties by Quickline Auctioneers, is hereby granted pending the hearing and determination of the main appeal. 32.This stay is strictly conditional upon the appellant depositing the decretal sum of Kshs. 810,826 into a joint interest-earning account in the names of both counsel for the appellant and counsel for the respondent within forty-five (45) days from the date of this ruling, failing which the stay orders shall automatically lapse and the respondent shall be at liberty to proceed with execution. 33.Costs of this application shall abide the outcome of the appeal. DATED, SIGNED AND DELIVERED ONLINE VIA MICROSOFT TEAMS AT NAIROBI THIS 19TH DAY OF MAY, 2026...................................A. N. ONGERIJUDGEIn the presence of:No appearance for the ApplicantMr Moturi for the RespondentUbah – Court Assistant