https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7874

Langat t/a Kericho Tengecha Uniform v Spin Knit Ltd (Civil Appeal E120 of 2025) [2026] KEHC 7874 (KLR) (3 June 2026) (Ruling) Neutral citation: [2026] KEHC 7874 (KLR) Republic of Kenya In the High Court at Nakuru Civil Appeal E120 of 2025 JM Nang'ea, J June 3, 2026 Between Moses Kiptoo langat t/a Kericho Tengecha Uniform Appellant and Spin Knit Limited Respondent Ruling 1.By Notice of Motion dated 23/5/2025, the Appellant seeks reliefs as hereunder;-1.Spent.2.Spent.3.That pending the hearing and determination of this Appeal, a stay of execution be granted against the ruling of Honourable B. Ochieng, Chief Magistrate, delivered on 8th May 2025 in Nakuru Chief Magistrate’s Court Case Number 805 of 2019 – Spin Knit Limited vs Moses Kiptoo Lang’at T/A Tengecha uniform, the Warrrant of Arrest issued thereunder and all consequential orders against the Appellant. (sic)4.That the costs of this Application do abide the outcome of this Appeal, otherwise, the same be awarded to the Appellant. 2.The Appellant swore an Affidavit in support of the Motion. Inter alia, he avers that the lower court struck out his defence in the suit before it and entered Judgement for the Respondent in the sum of Kshs. 2,229,701.30 together with the costs of the suit and interest. In compliance with the Judgement, he made payments totaling Kshs. 2,000,000/= despite hardships he was experiencing in his business. Notwithstanding, the Appellant laments that the Respondent took out Notice to Show Cause (“the NTSC’’) against him seeking to have him committed to civil jail for alleged refusal to comply with the trial court’s Judgement. 3.The Appellant attacks the decree in question as defective, in particular for failing to indicate the applicable interest rate, whether court or commercial, and for computing interest from 2017 instead of 2019 contrary to the Judgement. 4.Despite pointing out the anomaly alluded to above, the Appellant contends that the learned trial magistrate delivered the impugned Ruling dated 8/5/2025, finding and holding that he had failed to show cause why he should not be committed to civil jail as desired. 5.The Applicant pleads that he stands to suffer irreparable or substantial loss if interim stay of execution is not ordered, hence this Appeal and Application. 6.A director of the Respondent (Yogesh Chandra Kantilal Shah) swore an affidavit in reply, opposing the Application. Upon advice of their legal Counsel, the witness contends that, being a negative order, the lower court’s order dismissing the Appellant’s objection to the NTSC cannot in law be stayed. In any event, the court is told that the Appellant deliberately misrepresented the relevant facts as there is no order issued for his arrest. According to the Respondent through its director, this Application is therefore pre-emptive and irregular. 7.The Respondent also faults the Appellant’s claim of payment of a sum in excess of Kshs. 2,000,000/- in satisfaction of the decree, terming it as baseless. While acknowledging that the decree dated 18/6/2020 may contain arithmetic errors regarding interest only, the Respondent states that the error is curable in law and the Appellant is at liberty to move the trial court as appropriate. To show that the error is not fatal, the Respondent notes that the Appellant has attempted to comply with the decree, the alleged defect notwithstanding. 8.For the stated reasons among others, the Application is dismissed as frivolous and that the Appellant does not come to the court of equity with clean hands. Appellant’s Submissions 9.The court is told that the lower court found that the NTSC was properly issued and therefore that is not a negative order that is incapable of stay. To the contrary, the Appellant contends that it is a positive order that upholds the NTSC thus paving the way for issuance of a warrant committing the Appellant to civil jail. 10.Counsel for the Appellant further submit that their client has complied with Order 42 rule 6(2) Civil Procedure Rules 2010, opining that he would suffer substantial loss if he is arrested . Reference is also made to case law James Wangalwa & Another vs Agnes Naliaka Cheseto (2012) eKLR & RWW – EKW (2019) eKLR, where it was posited that there is need to preserve the substratum of an Appeal by ordering stay of execution in appropriate cases. 11.The Appellant states that his Application was brought timeously as the impugned Ruling was given on 8/5/2025 while the Application was filed on 23/5/2025, about 15 days later. It is also pointed out that the Ruling was delivered in the absence of the Appellant who only learnt of it 8 days thereafter. 12.Through his Advocates the Appellant offers to comply with any conditions that may be set by the court while granting the desired stay. Further reliance is placed on the decision of this court in Mohamed Nadeem Nazir vs Mohamed Salim Mughal (2025) eKLR where it was held in similar circumstances that strict compliance with order 42 rule 6(2) of the Civil Procedure Rules, as by deposit of security for costs may not be demanded. Respondent’s Submissions 13.The Respondent in reply opines that any error in the impugned decree may be corrected under Section 99 of the Civil Procedure Act for any typographical error, accidental slip or such like mistakes. 14.According to the Respondent’s Advocates the NTSC is yet to be fixed for hearing and no warrant of arrest has been issued yet. The Appellant is therefore said to be, in effect, putting the cart before the horse. 15.Counsel further rightly observe that the Judgment Debtor’s rights under Section 38 Civil Procedure Act are guaranteed and so the Appellant has a right to be heard on the NTSC when it is fixed for hearing before any order for his committal to civil jail issues. Section 34 Civil Procedure Act is also said to offer the Appellant a forum to be heard before any committal to civil jail. 16.It is underscored that the trial court found the NTSC to be proper and the Appellant’s objection was dismissed. It is a negative order which may not be stayed in law, according to the Respondent, (see the Court of Appeal’s decision in Opondo vs Onyango (sued as Administrator of the Estate of Charles Onyango Gucha (Civil Application E022 of 2023 KECA 1076 (KLR) (22 September 2023) (Ruling) among may other cited decisions). 17.The Respondent holds the position that the stipulated conditions for stay of execution pending Appeal under Order 42 rule 6(2) of the Civil Procedure Rules have not been complied with. By offering to furnish security for costs, the Appellant is said to signal to the court that he has the means to settle the decree. Brief Analysis and Determination 18.The Appellant attempts by affidavit evidence to challenge the NTSC on grounds of lack of clarity of interest rates applicable and alleged defectiveness of the decree. He also argued that he had made substantial payments towards satisfaction of the decree despite economic hardships he was encountering. 19.In dismissing the Appellant’s objection, the learned trial magistrate observed thus;“…..Having perused the affidavit of means sworn by the decree holder’s director on 6/9/2022 and filed in court on 7/9/2022 I am satisfied that judgement debtor has amply demonstrated to court that the judgement debtor has the means to pay the decretal sum going by the monthly rental income he generates from his rental premises.This court is satisfied that the plaintiff/decree holder has demonstrated that the judgement debtor is a man of means who had refused or neglects to pay fully or some substantial part thereof or otherwise comply with a lawful judgement. Consequently, the court finds and holds that the notice to show cause is proper and the judgement debtor’s objection is unmerited and is accordingly dismissed…”(sic) 20.The following issues arise for determination;a.Whether the NTSC was heard and determined before the lower court.b.Whether the lower court issued a negative order against the Appellant that is incapable of stay in law.c.The orders commending themselves to the court in the circumstances obtaining in this matter. 21.Whereas the learned trial magistrate appeared to have disposed of the NTSC by holding that the Appellant has the means to satisfy the decree but was refusing or neglecting to make good the same, no final orders were made on the NTSC itself. The Court did not in particular order committal of the Appellant to civil jail as prayed by the Respondent. Instead, the Court only seemed to dismiss the Appellant’s objection to the NTSC for reasons stated in his affidavit in reply thereto. 22.The NTSC was not therefore determined or substantially determined in compliance with Sections 34 and 38 of the Civil Procedure Act supra. Issue (a) is accordingly determined in the negative. 23.Regarding issue (b), the lower court’s order was clearly a negative one that dismissed the objection to the NTSC on the grounds advanced before the court. Such an order is incapable of stay as per the decisions cited among a long line of other authorities. The prayer for stay of execution of the lower court’s order pending determination of the Appeal is unwarranted in the circumstances. This disposes of issue (b) as framed. 24.What order should the court then issue on the matter? It is directed that the NTSC dated 17/8/2022 as reissued on 2/3/2023 be heard de novo in the lower court in accordance with the law. This Application will not therefore be determined on merits and is struck out with no order as to costs. J. M. NANG’EA,JUDGE.RULING DATED, SIGNED AND DELIVERED VIRTUALLY AT NAKURU THIS 3RD DAY OF JUNE, 2026.In the presence of:Appellant’s Advocate, Ms GatonyeRespondent’s Advocate, Mr. MbuthiaCourt Assistant (Mr. Ng’eno)J. M. NANG’EA,JUDGE.