Mediheal Hospital and Fertility Centre & another v Bank of India Kenya Ltd & another (Civil Suit E026 of 2024) [2026] KEHC 7790 (KLR) (3 June 2026) (Ruling)

Mediheal Hospital and Fertility Centre & another v Bank of India Kenya Ltd & another (Civil Suit E026 of 2024) [2026] KEHC 7790 (KLR) (3 June 2026) (Ruling) Neutral citation: [2026] KEHC 7790 (KLR) Republic of Kenya In the High Court at Eldoret Civil Suit E026 of 2024 E Ominde, J June 3, 2026 Between Mediheal Hospital and Fertility Centre 1st Applicant Swarup Ranjan Mishra 2nd Applicant and Bank Of India Kenya Ltd 1st Respondent Eshikoni Auctioneers 2nd Respondent Ruling 1.The application before this Court is the Notice of Motion application dated 20th November 2025, brought pursuant to provisions of Section 3 and 3A of the Civil Procedure Act, Order 42 Rule 6 and 7 and Order 51 Rule 1 of the Civil Procedure Rules. The Applicants seek the following orders:1.Spent.2.Spent.3.That pending hearing and determination of the appeal, the Court be pleased to order a stay of execution of the ruling delivered on 30th October 2025, in Eldoret HCC No. E026 of 2025 and/or in the alternative, the Court be pleased to injunct the Respondents’ from scheduling and/or proceeding with any auction over the properties Eldoret Municipality Block 8/744, 8/683, 13/151, LR 7914/123, LR 220731, Cheptiret/Kipchamo Block 2 (Mogobichi)/96, Pioneer Ngeria Block 1 EATEC 10109, 10110, 10111, 10112, 10113, 10114, 10192, 10193, Irong Iten 3829 which are subject to the primary suit.4.That costs for the application be provided for. 2.The application is supported by the grounds on the face of it and the Supporting affidavit of Maryline Chepkosgei Langat, who is the Applicant’s Manager sworn on 24th November 2025. She deposed that in the instant matter a Ruling was delivered on 30th October 2025 against which they have lodged an appeal vide Eldoret Court of Appeal Case No. E093 of 2025; Mediheal Hospital & Fertility Centre & Swaruo Ranjan Mishra v. Bank of India Kenya & Eshikoni Auctioneers. 3.She further deposed that recently on one of the dailies, the Respondents advertised the properties that are the subject of the appeal for an auction scheduled on or about 5th December 2025 and that she believes that if the same proceeds the appeal shall be rendered nugatory. She maintained that the Appeal has an overwhelming chance of success and that the Application has been brought in good faith and has also been lodged expeditiously. 4.She contended that if the Respondents are not prevented from proceedings with the said auction then the Appeal shall be rendered nugatory and that the Applicants shall suffer substantial harm unless stay of execution and or an order of status quo is granted. Response 5.The Application is opposed by the 1st Respondent vide the Replying Affidavit sworn on 1st December 2025 by Sanjay Kumar who is the 1st Respondent’s Chief Manager at Eldoret. He deposed that the Applicant’s Application is an abuse of this Court’s process and that the same should be dismissed with costs to the Respondent. 6.He further deposed that the Applicant seeks orders of injunction against the Ruling of the court delivered on 30th October 2025 that dismissed the Applicant’s earlier application for an order of a temporary injunction the court having found that the Applicant had failed to satisfy the principles for the grant of injunctive reliefs or remedies and that further, the court in the said Ruling stated that it was satisfied that the Respondents duly issued the Applicant with all the requisite, notices including the statutory notices, redemption notices and notifications of sale. 7.He asserted that the Applicant is fully aware of the outstanding indebtedness and amount totaling to Kshs. 699,287,462.38/= owed to the 1st Respondent and the Applicant has persistently failed, neglected and/or refused to regularize the loan account or make any serious proposal towards settlement of the outstanding sums, despite repeated indulgence granted by the Respondent. He urged that the present application is therefore res judicata, frivolous and is abuse of the court process, in view of the fact of the Applicant having sought and been denied similar orders by this court. 8.He contended that the mere filing of an appeal does not operate as a stay of execution nor does it grant an automatic injunctive relief and that the Applicant has not demonstrated any arguable grounds or prospects of success of the intended appeal. He further deposed that the Applicant has not shown the existence of any substantial loss that cannot be compensated by damages should the appeal succeed, especially considering that the properties charged were offered as security for the bank facilities granted by the 1st Respondent. He urged that the Respondent stands to suffer great prejudice if the orders sought are granted, including the continued accumulation of interest and further delay in loan recovery and that it is in the interests of justice and fairness that the Respondent be allowed to proceed with the lawful sale scheduled for 10/12/2025. 9.He contended that the Applicants have a history of filing multiple suits and applications on the same subject matter, all aimed at preventing the Respondent Bank from exercising its statutory power of sale including the previously filed suit, Eldoret HCCC No. E016 of 2024; Mediheal Group Limited and Swarup Ranjan Mishra v Eshikoni Auctioneers wherein interim injunctive orders were vacated by this court. 10.He further contended that immediately after the court vacated those interim orders in the earlier suit, the Applicants filed the present suit and made a fresh application seeking similar injunctive orders, which application is the one the court dismissed in its Ruling dated 30th October 2025 against which a stay of execution pending Appeal is now being sought. 11.He asserted that it is therefore clear that the Applicants have adopted a clear and deliberate pattern on unending litigations solely to delay, obstruct and frustrate the Respondent’s lawful attempt to recover the outstanding loan amounts and exercise their statutory power of sale. He contended that the Applicant has not demonstrated any new or exceptional; circumstances arising after the ruling delivered on 30th October 2025 to warrant the issuance of fresh injunctive orders and that the intended sale scheduled for 10th December 2025 is lawful, regular and in full compliance with the statutory requirements under the Land Act, the Auctioneer Act and Rules. 12.He deposed that the Applicants’ conduct amounts to forum shopping and an abuse of Court process as they continuously refile suits and applications seeking the same reliefs previously determined by competent Courts. He urged that the Appeal lodged is frivolous, raises no arguable points and is clearly intended to buy time and postpone the inevitable realization of the securities provided by the Applicants themselves and that it is the interest of justice that the Respondents be allowed to proceed with the scheduled sale on as fixed on the intended date, the same having been duly advertised and legal requirements having been fulfilled. 13.He further deposed that the balance of convenience in the instant matter shifts in favour of the Respondent and he urged that should this Court be inclined to grant any interim orders of stay of execution, the same should be on condition that the Applicants deposits the entire outstanding loan amount together with all the accrued interests, penalties and charges into a joint interest earning account in the names of both parties’ Advocates within a period to be set by the Court and that the Applicants should reimburse the Auctioneers costs, including the full cost of advertisement published in the newspaper and any other expenses incurred in preparations for the schedule auction of 10th December 2025. Applicant’s Submissions 14.The Application was canvassed vide written submissions. The Applicants filed submissions filed dated 11th December 2025 and that the Respondents filed submissions dated 17th December 2025. Counsel for the Applicant cited Order 42 Rule 6(2) of the Civil Procedure Rules and cited the case of Jennifer Akinyi Osodo v Boniface Okumu Osodo & 3 others [2021] KECA 465 (KLR), where the Court observed as follows:“The principles for our consideration in the exercise of our unfettered discretion under Rule 5 (2) (b) to grant an order of stay of execution or injunction are now well settled. Firstly, an applicant has to satisfy that he/she has an arguable appeal. However, this is not to say that it must be an appeal that will necessarily succeed, but suffice to state that it is an appeal that is not frivolous and/or idle. Secondly, an applicant has to demonstrate that unless an order of stay is granted the appeal or intended appeal would be rendered nugatory. These principles were summarized by this Court (differently constituted), in the case of Stanley Kangethe Kinyanjui v. Tony Ketter & Others [2013[ eKLR.” 15.Counsel submitted that from the facts in the said case, if the auction proceeds, on the real property which cannot be recovered or compensated by damages, substantial loss would occur on the Applicant. Counsel contended that once the property is sold, then the appeal and the entire appellate exercise remains academic in nature and that the Applicant cannot recover the said property ever hence if any auction is to take place then let the same be after they exhausted all legal avenues. 16.Counsel urged that the appeal from the face value has a very high chance of succeeding reason being, the Appellant argues that service was not effected and up to now, there is no process server who has brought forth evidence of service, secondly there is an issue of sub-judice which the Applicant contends does not exist. Counsel argued that such an issue ought to be reevaluated by a higher Court since it is among the reasons why the Application was dismissed. 17.Regarding the issue of undue delay, Counsel submitted that the ruling was delivered on 30th October 2025 and that the Applicant filed a Notice of Appeal on 4th November 2025 and that by 20th November 2025, the Applicant had already managed to lodge a complete appeal. Respondents Submissions 18.Counsel for the Respondents urged that stay can only issue in respect of a decree or an order capable of execution. Counsel submitted that the ruling delivered on 30th October 2025 merely dismissed the Applicant's application for injunction and did not give rise to any positive or executable order and in this regard, it was a negative order incapable of execution and there can be no stay of execution of such an order since nothing arising from the said ruling capable of being stayed by this court. He relied on the case of Kanwal Sarilt Singh Dhiman v Keshav v Juvral Shah [2008] eKLR. Counsel thus urged that the Applicant's prayer for stay is therefore fatally defective and ought to be dismissed on this ground alone. Counsel contended that what the Applicant is in effect seeking is a fresh injunction pending appeal after this court has already declined to grant such relief. Counsel added that this amounts to re-litigation of issues already determined and is a clear abuse of the court process. 19.Counsel further submitted that in addition to the Applicant seeking an order for stay of execution, the applicant seems to also be seeking for an order of temporary injunction pending hearing and determination of an appeal at the Court of Appeal, which application has been brought under the provisions of Order 42 Rules 6 and 7 of the Civil Procedure Rules. Counsel contended that this court, lacks jurisdiction to grant a temporary injunction pending appeal to the Court of appeal. The power to issue such an order is expressly limited by statute and can only be exercised in clearly defined circumstances. 20.Counsel cited section Order 42 Rule 6(6) and submitted that a careful reading of the above provision makes it evident that the jurisdiction of the High Court to grant a temporary injunction pending appeal is strictly confined to instances where the court is exercising its appellate jurisdiction, namely in appeals arising from subordinate courts or tribunals. Counsel submitted that in the present case, this court is not sitting in its appellate capacity. That consequently, the statutory threshold necessary to invoke the Court's powers under Order 42 Rule 6(6) has not been met and the Applicants' reliance on the said provision is therefore misplaced and legally untenable. He relied on the case of Hunkar Trading Company Limited & another v Family Bank Limited (Commercial Case E841 of 2021) [2024]. 21.Counsel contended that this court in its Ruling delivered on 30th October 2025 having conclusively determined the issue of the temporary injunctive relief between the parties by dismissing the Applicant’s application seeking orders for a temporary injunction pending the hearing and determination of this suit, is functus officio and lacks jurisdiction to re-entertain or grant similar orders. Counsel submitted that any attempt by the Applicant to re-litigate the issue through the present application amounts to an abuse of the Court process. That the Applicants in this case had previously filed an Determination 22.The law guiding the grant of a stay of execution pending appeal are provided under Order 42 Rule 6(1) and (2) of the Civil Procedure Rules as here below;Stay in case of appeal Order 42, rule 6(1)No appeal or second appeal shall operate as a stay of execution or proceedings under a decree or order appealed from except in so far as the court appealed from may order but, the court appealed from may for sufficient cause order stay of execution of such decree or order, and whether the application for such stay shall have been granted or refused by the court appealed from, the court to which such appeal is preferred shall be at liberty, on application being made, to consider such application and to make such order thereon as may to it seem just, and any person aggrieved by an order of stay made by the court from whose decision the appeal is preferred may apply to the appellate court to have such order set aside. 23.Further, Sub rule (2) thereof provides thatNo 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 24.The factors to consider in stay pending appeal is set out in the Court of Appeal decision in Butt v. Rent Restriction Tribunal [1982] KLR 417, (Supra). The Court gave guidance on how a Court should exercise discretion in such an Application and held as follows: -1.The power of the Court to grant or refuse an Application for a stay of execution is a discretionary power. The discretion should be exercised in such a way as not to prevent an appeal.2.The general principle in granting or refusing a stay is; if there is no other overwhelming hindrance, a stay must be granted so that an appeal may not be rendered nugatory should that appeal Court reverse the judge’s discretion.3.A judge should not refuse a stay if there are good grounds for granting it merely because in his opinion, a better remedy may become available to the Applicant at the end of the proceedings.4.The Court in exercising its discretion whether to grant [or] refuse an Application for stay will consider the special circumstances of the case and unique requirements. The special circumstances in this case were that there was a large amount of rent in dispute and the Appellant had an undoubted right of appeal.5.The Court in exercising its powers under Order XLI rule 4(2)(b) of the Civil Procedure Rules, can order security upon Application by either party or on its own motion. Failure to put security for costs as ordered will cause the order for stay of execution to lapse. 25.In considering this Application, from the depositions and submissions made on the issue of inordinate delay as herein summarized, I am satisfied that the Application was made timeously. It is to be noted however, that under Order 42 Rule 6(1), the mere fact of filing an appeal does not grant an automatic stay of the order and/or decree of the court that has been appealed against and so the assertion by the Applicant that because they have lodged an appeal, if the stay sought is not granted the appeal will be rendered nugatory is a non- issue. 26.Over and above this, the court notes that the determination of the court in its Ruling rendered on 30th October 2025 which is the subject of the appeal for which a stay of execution is sought, dismissed the Applicants Application for an order of injunction pending the hearing and determination of their case against the Respondents who were seeking to exercise their statutory power of sale over the Applicants property charged to them as guarantee for a loan advanced. To grant an order staying the that Ruling of the court as rendered on 30th October 2025 therefore, would mean that the status quo ante the said application for injunction will be restored thus rendering the entire rendition of the court in the said Ruling moot. 27.Such a situation in my considered view is untenable for reasons that first and foremost, the court is being called upon to make a determination on an issue that it has already heard and determined on its merits. Secondly and importantly it is to be noted that the status quo ante, that the matter would revert to if the order of stay of execution sought herein is granted, is that initial, primary place where the Respondent herein being the chargee, sought to exercise their statutory power of sale of the Applicant’s property that was charged to them for the loan advanced that then prompted the Applicant/chargor to move the court seeking its intervention to stay that expressed intent of the Chargee by way of the grant of an injunction. 28.It is to be noted that the act of a chargee seeking to exercise their statutory power of sale cannot be construed to be the act a party seeking to execute an order or decree of the court that can be stayed. Such a charge is simply seeking to actualize a right that has crystallized by operation of the law when a borrower defaults in repaying a loans advanced to them. (see Shah Rekhavanti Pankaj v Bank of Baroda & another [2021] KEHC 3180 (KLR). With this distinction made, it is clear that to revert to the status quo ante by granting the stay orders that the Applicant herein seeks would mean that there is nothing emanating from the court, not an order nor a decree that is to be stayed. 29.Thirdly, what the Applicant seeks dovetails into the conclusions that the court has reached as above analyzed for reasons that the Ruling that is the subject matter of this this Application is essentially a negative order. It is so because the court in the said Ruling did not order any of the parties to do anything or to abstain from doing anything. It simply dismissed the Applicant’s application that the Respondents be injuncted from exercising their statutory power of sale. It follows therefore that there is nothing in the order capable of being stayed. 30.In Shah Rekhavanti Pankaj v Bank of Baroda & another [2021] KEHC 3180 (KLR) (supra) the court rendered itself as follows on whether a negative order is capable of being stayed;“…The respondents also submitted that the order by Hon. P.J. Otieno was a negative order since it dismissed the applicant’s application dated 16th September, 2020. In the case of Milcah Jeruto v Fina Bank Ltd [2013] eKLR, the Court declined to issue conservatory orders since the order issued therein by Judge Ogola, was a negative order. Under Section 2 of the Civil Procedure Act, the definition of a decree alludes to an order that is capable of being executed. In the present case, there was and there is still no order to be executed…” 31.In view of my above conclusions, it is my finding that the Applicant’s Application is misconceived and bad in law and the same is accordingly dismissed with costs to the Respondents. The interim orders earlier herein issued are now hereby vacated. READ DATED AND SIGNED VIRTUALLY AT BUNGOMA ON 3RD JUNE 2026E. OMINDEJUDGE