https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11057

**THE REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA** **AT NAIROBI** **HCOMMA NO. E237 OF 2025** DONALD MBUUKO……………………………........APPELLANT/APPLICANT VERSUS FRANCIS ZAKAYO WAMBUA……...………………………1ST RESPONDENT MUSONI MICROFINANCE LIMITED...…………………….2ND RESPONDENT **RULING** 1. The applicant filed a Notice of Motion application dated 28th August 2025 pursuant to Sections 1A, 1B and 3A of the Civil Procedure Act, Order 42 Rule 6, Order 10 Rule 11 and Order 51 Rule 1 of the Civil Procedure Rules, 2010. The applicant seeks orders for stay of execution of the Ruling and Orders issued on 15th August 2025 in **Milimani Chief Magistrates’ Commercial Suit No. E5344 of 2020** pending the hearing and determination of the Appeal. 2. The application is premised on the grounds set out on the face of the Motion, and it is supported by an affidavit sworn on 28th August 2025 by the applicant Mr. Donald Mbuuko. He deposed that he is the decree holder in the trial suit, whose Judgment was delivered on 23rd December 2020 in his favour. He stated that in execution of the said Judgment, he instructed Ruol Auctioneers to proclaim and attach motor vehicle Registration Number KDA 694G belonging to the 1st respondent. He averred that the 2nd respondent filed an objector application dated 29th March 2022 challenging the proclamation of the said motor vehicle. He averred that the Trial Court delivered a Ruling on 15th August 2025 in favour of the respondents and ordered the said motor vehicle to be released to them. 3. Mr. Mbuuko stated that the Ruling by the Trial Court was erroneous because it did not determine whether the 2nd respondent was entitled to the whole or part of the motor vehicle as required under Order 22 Rule 51(2) of the Civil Procedure Rules. He faulted the Trial Court for ordering the motor vehicle to be released to both respondents, yet the 1st respondent had not made such a prayer and it introduced an unknown requirement that proclamation ought to be served upon the financier before attachment. He stated that at the time of proclamation, the motor vehicle was in possession and control of the 1st respondent and not the 2nd respondent. 4. Mr. Mbuuko stated that upon delivery of the Ruling, he filed an application for stay of execution which was denied. He stated that a financier without perfected hire purchase rights, cannot bar attachment. He contended that the Ruling of the Court unjustly shields the 1st respondent, leaving him without recourse despite having a valid decree. He deposed that the 2nd respondent did not provide documentary proof that his interest superseded his rights as a decree holder. He urged this Court to allow the application and stay execution, as he stands to suffer prejudice. 5. In opposition to the application, the 1strespondent filed a replying affidavit sworn on 3rd November 2025 by Mr. Francis Zakayo Wambua. He stated that he purchased the subject motor vehicle through a credit facility issued by the 2nd respondent and a joint registration was effected to secure the 2nd respondent’s financial interests. He stated that he defaulted and the 2nd respondent exercised its recovery rights and repossessed it. He averred that at the time of proclamation, the motor vehicle was in the custody, possession and ownership of the 2nd respondent. He stated that since he defaulted in the loan, the 2nd respondent holds the whole interest in the subject motor vehicle. He urged this Court to dismiss the application with costs. 6. The 2nd respondent opposed the application through the replying affidavit of the Recovery Team Leader, Rose Wainaina sworn on 18th November 2025. Ms Wainaina deposed that the Ruling of the Trial Court was well reasoned and that it is the Memorandum of Appeal which is frivolous and devoid of merits. She stated that the motor vehicle through a Loan Agreement dated 30th October 2020 was used as collateral for the loan facility and it was jointly registered in the names of the respondents. 7. She averred that the applicant issued a proclamation notice without first conducting an official search with the National Transport and Safety Authority. She stated that the 2nd respondent gained the first right of the motor vehicle and the Trial Court was not required to consider its share in the motor vehicle. Ms Wainaina averred that an Appeal does not operate as a stay of execution, which is only granted upon compliance with Order 42 Rule 6(1) and (2) of the Civil Procedure Rules, 2010, which the applicant has not proved. She urged this Court to dismiss the application. 8. The application was canvassed by way of written submissions whereupon the applicant filed submissions dated 17th November 2025 through the law firm of Musyoki Benson & Associates. The 1st respondent did not file any submissions. The 2nd respondent filed submissions dated 15th December 2025 through the law firm of Chege Kibathi & Co Advocates LLP. 9. Ms Arim, learned Counsel for the applicant, submitted that under Order 42 Rule 6 of the Civil Procedure Rules, the conditions therein must be satisfied. She stated that the release of the motor vehicle will cause prejudice to the applicant which cannot be remedied by damages. She stated that the respondents will not suffer any prejudice if the orders sought herein are granted. She relied on the case of **Damasa Whole salers Limited v Commissioner of Investigations and Enforcement** (Commercial Appeal No. E245 of 2024) [2025] KEHC 3643 (KLR) (Commercial and Tax) (24th March 2025) (Ruling). She stated that the Appeal raises serious questions of law and fact and argued that the Trial Court did not apply Order 22 Rule 51 of the Civil Procedure Rules. Further, that the Court acted beyond the pleadings, improperly descended into the arena of litigation, failed to consider the evidence and submissions. She also faulted the Trial Court for holding that proclamation must be served on a financier before attachment, and that the Court unjustifiably shielded the 1st respondent from execution. 10. Counsel stated that the application was filed without delay, that the applicant deposited Kshs.200,000/= as security as per this Court’s directions which shows that the requirement under Order 42 Rule 6 of the Civil Procedure Rules is fully met as was stated in the case of **Arun C Sharma v Ashana Raikundalia** [2014] eKLR. She argued that the balance of convenience and wider interest of justice require preservation of the property pending the hearing of the Appeal. 11. Counsel cited the case of **Regional Institute of** **Business Management v Lucas Ondong’ Otieno** [2020] eKLR, in support of her submissions. She submitted that Section 27 of the Civil Procedure Act provides that ‘*costs follow the event’,* andargued that in this instance, it was the actions of the respondents that prompted the applicant to file the Appeal and therefore costs should be granted to him. 12. Mr. Musyoki, Learned Counsel for the 1st respondent, stated that he would be relying on the replying affidavit sworn on 18th November 2025. 13. Mr. Juma, learned Counsel for the 2nd respondent cited the case of **Global Tours & Travel Ltd,** Nairobi HC Winding Up Cause No.43 of 2000, which dealt with stay of proceedings. He also cited passages in **Halsbury Law of England, 4th edition, Vol 37** pages 330 and 332. He contended that the applicant does not have a *prima facie* case and relied on the case of **Cooperative Bank of Kenya Ltd v Banking Insurance of Finance Union [Kenya]** [2015] eKLR. 14. He stated that the application was filed within the required timelines. He stated that the motor vehicle is jointly registered solely for security purposes and the 2nd respondent has first right over the security. He contended that execution does not amount to substantial loss. He stated that the costs follow the event in accordance to Section 27 of the Civil Procedure Act and cited the case of **Morgan Air Cargo Ltd v Evrest Enterprises** Ltd. He urged this Court to dismiss the application with costs. **ANALYSIS AND DETERMINATION**. 1. I have considered the instant application, the grounds on the face of it and the affidavit in support thereof. I have also considered the replying affidavits of the 1st and 2nd respondents, as well as the written submissions by Counsel for the parties. The issue that arises for determination is whether the application for stay of execution has merits to warrant the orders sought. 2. The instant application is premised on Order 42 Rule 6 of the Civil Procedure Rules, which provides as follows- ***“No order for stay of execution shall be made under sub rule (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”*** 1. The Court in the case of RWW **v EKW [2019] eKLR**, explained the purpose of an application for stay of execution pending appeal and stated that- ***“The purpose of an application for stay of execution pending an appeal is to preserve the subject matter in dispute so that the rights of the appellant who is exercising the undoubted right of appeal are safeguarded and the appeal if successful, is not rendered nugatory. However, in doing so, the Court should weigh this right against the success of a litigant who should not be deprived of the fruits of his/her judgment. The Court is also called upon to ensure that no party suffers prejudice that cannot be compensated by an award of costs.”*** 1. The conditions that need to be met for the Court to grant orders for stay of execution are- 2. ***The application has been made without unreasonable delay.*** 3. ***The Applicant will suffer Substantial loss.*** 4. ***The Applicant has offered security for due performance of the decree.*** 5. **There is no doubt that the application was filed without delay given that the Ruling of the Court was delivered on 15th August 2025 and the application was filed on 29th August 2025, hence this condition has been fulfilled.** 6. The applicant must establish that he will suffer substantial loss if orders for stay of execution are not granted. **The Court in the case of Kenya Shell Limited v Benjamin Karuga Kibiru & another [1986] eKLR,** held as follows- ***“Substantial loss in its various forms is the corner stone of both jurisdictions for granting a stay. That is what has to be prevented. Therefore, without this evidence it is difficult to see why the respondents should be kept out of their money”*** 1. **In order for this Court to determine whether the applicant will suffer substantial loss, the Court needs to determine whether the appeal herein is arguable.** The Court of Appeal in the case of **Joseph Gitahi Gachau & another v Pioneer Holdings (A) Limited & 2 others** [2009] eKLR, when addressing the issue of arguability of appeals held that- …***On our part, after considering the rival submissions by the parties, the ruling of the learned Judge below together with pleadings we are satisfied that the appeal is indeed arguable. This, in essence, does not mean an appeal which must necessarily succeed, but of course, one which ought to be argued fully before the Court.”*** 1. **This Court has gone through the Memorandum of Appeal and finds that the grounds raised therein are arguable. This is because the applicant holds a valid decree from the Judgment of the Trial Court and his interests must be secured in the interim pending the hearing and determination of the Appeal. This Court finds that the applicant has satisfied this condition.** 2. The last condition to be met is on deposit of security, which **was discussed in the case of Gianfranco Manenti & another v Africa Merchant Assurance Co. Ltd** [2018] KEHC 873 (KLR), where **the Court**held as follows- ***“… the applicant must show and meet the condition of payment of security for due performance of the decree. Under this condition a party who seeks the right of appeal from money decree of the lower Court for an order of stay must satisfy this condition on security. In this regard, the security for due performance of the decree under order 42 rule 6(1) of the Civil Procedure Rules, it is trite that the winner of litigation should not be denied the opportunity to execute the degree in order to enjoy the fruits of his judgment in case the appeal fails...”*** 1. In this case, this Court issued an order directing the applicant to deposit in Court a sum of Kshs.200,000/= within thirty (30) days and the same was duly deposited on 25th September 2025 in compliance. That was an act of good faith and it shows that the condition on deposit of security has been fulfilled. 2. The upshot is that the Notice of Motion application dated 28th August 2025 is merited. I hereby make the following orders- 3. **Stay of execution is hereby granted against the Ruling and Orders made on 15th August 2025 in Milimani Chief Magistrates’ Commercial Suit No. E5344 of 2020 pending the hearing and determination of the appeal filed by the applicant; and** 4. **Costs of the application shall abide the outcome of the Appeal.** **DATED, SIGNED**and**DELIVERED**at**KIAMBU**on this**26TH** day of**JUNE, 2026.** **Ruling delivered through Microsoft Teams Online Platform.** **NJOKI MWANGI** **JUDGE** **In the presence of:** **No appearance for the applicant** Mr. Muasya h/b for Mr. Musyoki for the 1st respondent Ms Kirui h/b for Mr. Juma for the 2nd respondent Julia – Court Assistant.