Muganda t/a Keysian Auctioneers & another v Procel Transport & 4 others (Civil Appeal E919 of 2024) [2026] KEHC 7696 (KLR) (Civ) (2 June 2026) (Judgment)

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT NAIROBI** **CIVIL APPEALLATE DIVISION** **CIVIL APPEAL NO. E919 OF 2024** **ALVIN OTIENO MUGANDA T/A KEYSIAN AUCTIONEERS…1ST APPELLANT** **KENYA CURIO CRAFTS & JUA KALI ASSOCIATION…………2ND APPELLANT** **VERSUS** **PROCEL TRANSPORT ……………………………………….…1ST RSPONDENT** **SALAMA GAS………………………………………………….2ND RESPONDENT** **KAKUTA TRADERS………………………………….………..3RD RESPONDENT** **MOSMOS CAFÉ……………………………………………….4TH RESPONDENT** **EMBAKSI VILLAGE CRAFTS JUA KALI ASSOCIATION…….5TH RESPONDENT** *(Being an Appeal from the Ruling of Hon. B.M CHELOTI (PM) in Milimani CMMISC. Application No. E1601 OF 2023 delivered on 12/7/2024)* **JUDGEMENT** 1. The Appellant filed Milimani CMMISC. Application No. E1601 of 2023 vide Notice of Motion dated 29/2/2024 seeking stay of execution of the orders made on 24/20/2023 and 23/2/2024 pending the hearing and determination two appeals. 2. The application was supported by the Affidavit of David Ongati sworn on 29/2/2024. 3. The Respondent filed a Replying Affidavit sworn on 25/3/2024 by an Advocate of the High Court. 4. The Trial Court found that the matter was contentions and struck out the Replying Affidavit and allowed the application. 5. The Appellant has appealed against the said ruling on the following grounds; 6. ***THAT the learned trial Magistrate erred in law and in fact by staying a negative order issued on the 16th of February, 2024 when there was nothing capable of being stayed.*** 7. ***THAT the learned trial magistrate erred in law and in fact by striking out the appellant’s replying affidavit for the sole reason that the same was drawn by an advocate and without any valid reason.*** 8. ***THAT the learned trial magistrate erred in law and in fact by holding that the application was a contentious matter without specifying the paragraphs in the replying affidavit that were not within the advocate’s knowledge.*** 9. ***THAT the learned trial magistrate erred in law and in fact by staying the execution of a judgment and decree of a superior court when it lacks such jurisdiction.*** 10. ***THAT the learned trial magistrate erred in law and in fact by staying a decree and judgment of a matter not handled by it.*** 11. ***THAT the learned trial magistrate erred in law and in fact by granting the orders sought despite the fact that the Respondents had flatly failed to establish the requisite conditions for the grant of the orders for stay of execution.*** 12. ***THAT the learned trial magistrate erred in law and in fact by pegging the establishing of the requisite grounds for the grant of the orders of Stay of execution on the filing of a replying affidavit by the Appellants instead of the statutory set grounds.*** 13. ***THAT the learned trial magistrate erred in law and in fact by shifting the burden of proof to the Appellants.*** 14. ***THAT the learned trial magistrate erred in law and in fact by relying on the Respondents’ further affidavit dated 4th June, 2024 filed without leave from the honorable court.*** 15. The Appellant did not file any submissions in this appeal. 16. The Respondents in their submissions strongly opposed the Appeal in its entirety, and urged this court to dismiss it with costs on the grounds that it lacks merit, is misconceived in law, and constitutes an abuse of the appellate process. 17. They contend that the Appellant has failed to demonstrate any error of law or misapprehension of fact by the learned trial magistrate, whose ruling and orders were delivered on July 12, 2024, in Miscellaneous Application E1601 of 2023. 18. The Respondents adopt the three primary issues framed for determination, asserting that each should be answered in the negative. 19. Regarding the first issue, the Respondents argue that the trial court properly exercised its discretion to strike out the Appellant's replying affidavit dated March 25, 2024, due to a flagrant violation of Order 19 Rule 3(1) of the Civil Procedure Rules and Rule 9 of the Advocates (Practice) Rules. 20. They point out that the affidavit was impermissibly filled with legal arguments, conclusions of law, opinions on jurisdiction, and statutory interpretations, matters strictly reserved for counsel submissions rather than sworn facts. 21. Citing several binding authorities, including **Simon Isaac Ngugi v Overseas Courier Services (K) Ltd, Regina Waithira Mwangi Gitau v Boniface Nthenge, Barrack Ofulo Otieno v Instarect Limited, and Magnolia Pvt Ltd v Synermed Pharmaceuticals Ltd,** the Respondents emphasize the well-established principle that advocates must not depose to contentious or evidentiary facts. 22. Doing so exposes counsel to cross-examination and compromises their role in the adversarial process. Due to these defects permeated in the entire document, the affidavit was incurably defective and could not be saved by selective pruning. 23. Furthermore, the Appellant never sought leave to regularize the document or file a proper affidavit sworn by the actual party. 24. On the second issue, the Respondents submit that the trial court did not err in allowing the application for stay. 25. They demonstrate full compliance with Order 42 Rule 6(2), noting that the application was made without unreasonable delay, substantial loss was proved, and the court properly balanced the competing rights of the parties to preserve the status quo. 26. The Respondents firmly reject the Appellant's claim that the magistrate lacked jurisdiction, clarifying that the magistrate did not stay an Environment and Land Court judgment, but rather managed execution orders arising directly from her own ongoing subordinate proceedings. 27. They distinguish the Supreme Court decision in **Samuel Kamau Macharia & Another v Kenya Commercial Bank Ltd & 2 Others**, arguing that a contrary interpretation would absurdly leave subordinate courts powerless to manage their own proceedings once an appeal is filed. 28. They also dismiss the Appellant's plea of res judicata, explaining that interlocutory stay applications are not barred when circumstances evolve, and the subsequent application was freshly grounded on the existence of a pending appeal and the necessity of preserving the subject matter. 29. Concluding that costs follow the event and that the Appellant has unnecessarily prolonged the litigation, the Respondents pray that the High Court firmly decline the invitation to substitute its own discretion for that of the trial court. 30. They submitted that the appeal be dismissed and the trial court's original ruling be upheld, and the costs of the appeal be awarded to them. 31. The sole issues for determination in this appeal is *whether the learned trial magistrate erred in law and fact by striking out the appellant's replying affidavit for violating the rules governing affidavits.* 32. Having considered the grounds of appeal, the record of the lower court, and the submissions filed by the respondents, this court finds that the sole issue for determination regards the striking out of the appellant's replying affidavit. 33. It is a well-settled principle of law that affidavits must contain only statements of facts within the deponent's own knowledge, or where information and belief are permissible, the grounds thereof must be clearly stated. 34. Under Order 19, Rule 3(1) of the Civil Procedure Rules, and further reinforced by Rule 9 of the Advocates (Practice) Rules, an advocate should not depose to contentious or evidentiary facts in a matter where they act as counsel. 35. By filling the replying affidavit with legal arguments, conclusions of law, and opinions on jurisdiction, the deponent crossed the line from stating facts into the realm of legal submissions. 36. When an affidavit is so defective that it cannot be saved by selective pruning, striking it out is the proper recourse, especially since the appellant made no attempt to seek leave to regularize the document or file a supplementary affidavit by the actual party. 37. Since the appellant failed to file submissions to support the grounds of appeal or demonstrate any misdirection by the trial court, the lower court's ruling must stand. 38. The final decision of this court is that the appeal is hereby dismissed in its entirety, the ruling and orders of the trial court delivered on July 12, 2024, are upheld, and the costs of this appeal are awarded to the respondents. 39. Orders to issue accordingly. **DATED, SIGNED AND DELIVERED AT NAIROBI THIS 2ND DAY OF JUNE 2026.** **ASENATH ONGERI** **JUDGE** **In the presence of** Miss Wadegu for the Appellant No appearance for Respondent Chrispine - Court Assistant