https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12285

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA** **AT NAKURU** **CIVIL APPEAL NO. E051 OF 2026** **MACHARIA D.C. MOSES .................. APPELLANT/APPLICANT** **VERSUS** **SOLZA LIMITED .............................................. RESPONDENT** **RULING** [1] Before this Court is the Appellant's Notice of Motion dated 18th June 2026. The Application is brought under Order 42 Rule 6, Order 51 Rule 1 of the Civil Procedure Rules, Sections 1A and 1B of the Civil Procedure Act, and all other enabling provisions of the law. [2] The Applicant seeks the following substantive orders: 1. ***Spent*** 2. ***That pending the hearing and determination of this appeal inter partes, there be a stay of execution of the lower court's judgment and all consequential orders.*** 3. ***That pending the hearing and determination of this appeal, there be orders of injunction restricting the Respondent from proclaiming or attaching the Applicant's properties for costs.*** 4. ***That costs be in the cause.*** [3] The Application is supported by the Affidavit of MACHARIA D.C. MOSES, the Appellant herein, sworn on 18th June 2026. The Respondent has opposed the Application through the replying affidavit of MICHAEL WANGANGA, the Country Manager of the Respondent, sworn on 30th June 2026. [5] The factual background to this application is largely uncontested. The Appellant instituted a suit before the Chief Magistrate's Court at Nakuru being MCCCC Suit No. E688 of 2024 seeking the following reliefs: (a) An order for release of Motor Vehicle Registration Number KCD 239R Toyota Hiace; (b) An order for general damages for loss of business for the days the vehicle was on attachment; (c) A permanent injunction restraining the Defendant by itself, its servants, or agents from attaching or interfering with the said motor vehicle registration number KCD 239R Toyota Hiace. (d) Any other relief that this honourable court may deem fit to grant. [6] The trial court delivered its judgment on 3rd February 2026, dismissing the Appellant's suit with costs. A decree was subsequently issued on 27th February 2026, with costs certified at Kshs. 78,300/-. [7] Aggrieved by the said decision, the Appellant filed a Memorandum of Appeal on 3rd March 2026 in this appeal. The Appellant also sought stay of execution in the lower court, which application was dismissed by the trial court on 16th June 2026. [8] The Appellant thereafter filed the instant Application before this Court on 18th June 2026, seeking stay of execution and injunctive relief pending the hearing and determination of the appeal. [9] The Respondent has raised a fundamental objection to the application, contending that the subject matter of the dispute, being Motor Vehicle Registration Number KCD 239R, was sold on 20th November 2024, and that the appeal has therefore been overtaken by events. [10] The Applicant's case is that judgment in the lower court was delivered on 3rd February 2026 and the Applicant filed an appeal being HCCA No. E051 of 2026.The Applicant sought stay of execution in the lower court, which application was dismissed on 16th June 2026. On 17th June 2026, the Respondent's counsel sent a text message threatening to send auctioneers to the Applicant's home to attach his properties. The threat to execute without prior proclamation is illegal and contradicts provisions of the law.The Respondent is already in possession of the Applicant's motor vehicle KCD 239R Toyota Hiace, which was attached despite the Applicant not having taken any loan with the Respondent.The Applicant has a meritorious appeal as Kenya Commercial Bank released money to a fraudster whose photograph was produced in court.That if no orders of stay are granted, the Applicant stands to suffer irreparable harm. [11] The Respondent's case is that the instant application is untenable, frivolous, and an abuse of the process of this Court.That under Order 42 of the Civil Procedure Rules, stay of execution pending appeal is a discretionary remedy and not an automatic right. That the Applicant has failed to demonstrate that he would suffer substantial or irreparable loss, as the decretal sum is only Kshs. 78,300/-.That the Respondent is a micro-finance institution and is financially able to refund the said sum in the unlikely event the Appellant succeeds in his appeal.That this Court should order the Appellant to pay the sum of Kshs. 78,300/- within ten (10) days, which money would be returned to the Appellant if he succeeds. That the Applicant filed this appeal solely to frustrate the Respondent from realizing the costs awarded.That the Applicant has never filed any record of appeal, four (4) months since lodging his Memorandum of Appeal.That the appeal has been overtaken by events as the suit vehicle was sold on 20th November 2024, and the Appellant's prayers in the lower court cannot be granted.That the only remedy available to the Appellant, if any, is a claim for damages, which he did not seek in his pleadings. [12] Having carefully considered the record, the following issues arise for determination: *(i)* ***Whether the Applicant has satisfied the conditions for grant of stay of execution pending appeal under Order 42 Rule 6 of the Civil Procedure Rules.*** ***(ii) Whether the Applicant is entitled to an order of injunction pending the hearing and determination of the appeal.*** ***(iii) What orders should this Court make regarding costs?*** [13] The law governing applications for stay of execution pending appeal is well settled. Order 42 Rule 6(2) of the Civil Procedure Rules provides as follows: "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; (c) 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." [14] The Court of Appeal in ***Kenya Shell Limited v Benjamin Karuga Kibiru & Another [1986] KLR*** set out the principles governing the grant of stay of execution pending appeal. The court, per Hancox JA, held that: ***"As I said I accept the proposition that if it is shown that execution or enforcement would render a proposed appeal nugatory, then a stay can properly be given. Parallel with that is the equally important proposition that a litigant, if successful, should not be deprived of the fruits of a judgment in his favour without just cause.”*** [15] I will now consider whether the Applicant has satisfied each of the conditions. The Applicant contends that he stands to suffer irreparable harm if the orders sought are not granted, as the Respondent has threatened to proclaim and attach his properties for costs. The Applicant further contends that the Respondent is already in possession of his motor vehicle KCD 239R, which was attached despite the Applicant not having taken any loan with the Respondent. The Respondent, on the other hand, contends that the decretal sum is only Kshs. 78,300/-, which cannot be considered substantial loss. The Respondent further contends that it is financially able to refund the said sum in the event the Appellant succeeds in his appeal. [16] I have carefully considered the arguments of both parties. The decretal sum is indeed Kshs. 78,300/-, which is a relatively modest amount. In ***Emray Enterprises Limited v Patrick Maithya Mbithuka [2015] KEHC 4292 (KLR),*** the court, per Thuranira Jaden J, held that: ***"The interests of both parties will be served by depositing the decretal sum in court or in a joint interest earning account of both counsels for the parties herein."*** [17] The Court of Appeal in ***Githunguri v Jimba Credit Corporation Ltd (No 2) [1988] KECA 141 (KLR),*** while addressing a matter involving a substantial property, emphasized the need to balance the interests of both parties and noted that the court's jurisdiction under rule 5(2) to grant an injunction or stay "confers an independent original discretion on us and we have to apply our own minds de novo on the suitability or otherwise of the relief sought." [18] The Court in ***Sankale Ole Kantai T/A Kantai & Co. Advocates v Housing Finance Co. (K) Ltd [2014] KEHC 1463 (KLR***) reiterated that: ***"The possibility of substantial loss occurring upon the Applicant unless an order of stay of execution is made is the cornerstone of the jurisdiction of the court in granting stay of execution under Order 42 rule 6 of the CPR. ... The onus of proving that substantial loss would occur unless an order of stay is made rests upon and must accordingly be discharged by the Applicant."*** [19] The Court in ***James Wangalwa & Another v Agnes Naliaka Cheseto [2012] eKLR***, held that: ***"No doubt, in law, the fact that the process of execution has been put in motion, or is likely to be put in motion, by itself, does not amount to substantial loss. Even when execution has been levied and completed, that is to say, the attached properties have been sold, as is the case here, does not in itself amount to substantial loss under Order 42 Rule 6 of the CPR. This is so because execution is a lawful process. The applicant must establish other factors which show that the execution will create a state of affairs that will irreparably affect or negate the very essential core of the Applicant as the successful party in the appeal. This is what substantial loss would entail..."*** [20] The Applicant has not demonstrated how the payment of Kshs. 78,300/- would occasion substantial loss. The Applicant has also not provided any evidence that the Respondent would be unable to refund the said sum if the appeal succeeds. In fact, the Respondent has sworn that it is a micro-finance institution and is financially able to refund the amount. I am not satisfied that the Applicant has demonstrated that he would suffer substantial loss if the stay is not granted. The Applicant has merely made a general assertion of irreparable harm without particularizing the actual loss he stands to suffer. [21] The judgment in the lower court was delivered on 3rd February 2026. The Applicant filed his Memorandum of Appeal on 3rd March 2026. The Applicant sought stay of execution in the lower court, which application was dismissed on 16th June 2026. The instant Application was filed on 18th June 2026. I am satisfied that the application has been made without unreasonable delay. The Applicant has been diligent in pursuing his appeal and seeking stay orders. The period between the dismissal of the stay application in the lower court and the filing of the instant Application is only two days. [22] The Applicant has not expressly stated that he is willing to furnish security for the due performance of the decree. In fact, there is no mention of any proposal to furnish security. The Respondent has proposed that this Court order the Applicant to pay the decretal sum of Kshs. 78,300/- within ten (10) days of the ruling, which amount would be returned to the Applicant if he succeeds in the appeal. I find the Respondent's proposal to be reasonable and practical. It strikes a balance between the Applicant's right to pursue his appeal and the Respondent's right to realize the costs awarded in its favour. The payment of the decretal sum would serve as security for the due performance of the decree. [23] Having found that the Applicant has failed to satisfy the condition of substantial loss and has not made a concrete proposal for security, I am not inclined to grant the stay of execution sought. The Applicant has not met the threshold set out in Order 42 Rule 6(2) of the Civil Procedure Rules. [24] The power to grant an injunction pending appeal is found under Order 42 Rule 6(6) of the Civil Procedure Rules, which provides: "Notwithstanding anything contained in subrule (1) of this rule, the High Court shall have power in the exercise of its appellate jurisdiction to grant a temporary injunction on such terms as it thinks just provided the procedure for instituting an appeal from a subordinate court or tribunal has been complied with." [25] The principles for granting an injunction pending appeal are similar to those for granting a stay of execution. The court must be satisfied that the appeal is not frivolous, that the applicant would suffer irreparable harm if the injunction is not granted, and that the balance of convenience tilts in favour of granting the injunction. The Applicant seeks an injunction to restrain the Respondent from proclaiming or attaching his properties for costs. The Respondent has not commenced the process of execution and has only made a threat through a text message. I find that the Applicant has not demonstrated that he is entitled to the injunctive relief sought. The Applicant has not established a prima facie case with a probability of success, nor has he demonstrated that he would suffer irreparable harm. The balance of convenience, in my view, tilts in favour of the Respondent, who is entitled to the fruits of its judgment. I therefore decline to grant the orders of injunction sought. [26] Consequently, the Applicant's Notice of Motion dated 18th June 2026 is hereby dismissed with costs. **Dated, signed and delivered at Nakuru this 31st day of July, 2026.** **J. K. SERGON** **JUDGE** **In the presence of:** Rutoh C/A Maina holding brief for Applicant