https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7310

Muruka Farmers Co-operative Society Ltd v Mburu (Civil Appeal E037 of 2026) [2026] KEHC 7310 (KLR) (8 May 2026) (Ruling) Neutral citation: [2026] KEHC 7310 (KLR) Republic of Kenya In the High Court at Murang'a Civil Appeal E037 of 2026 DO Chepkwony, J May 8, 2026 Between Muruka Farmers Co-Operative Society Ltd Appellant and Joseph Mburu Respondent Ruling 1.Vide a Notice of Motion application dated 22nd April, 2026, the Applicant/Appellant is seeking for orders:a.Spentb.Spent.c.That Pending the hearing and determination of the appeal filed herein, this Honourable Court be pleased to stay of execution of the orders of the execution in Nairobi (CTS E260/2026, Joseph Mburu vs Muruka Farmers Cooperative Society Ltd) made on 16th April, 2026.d.Costs of this application be provided for. 2.The application is based on the grounds set out on its face and the Supporting Affidavit of Simon Muchoki Kigo on even date. 3.On the 24th April, 2026, the court considered the application exparte and directed that the same be served upon the Respondents forthwith for a response to be filed by him within seven (7) days of the said service. 4.According to the counsel for the Applicant, the Respondent was served through his advocates, the firm of M/S Chege Kibathi & Co Advocates, LLP with copies of the Certificate of Urgency and Notice of Motion application dated 22nd April, 2026 alongside the orders of this court issued on 24th April, 2026 and Memorandum of Appeal dated 17th April,2026 by the firm of M/S Muturi Njoroge & Co Advocates. The Applicant’s advocates have filed an affidavit of service dated 30th April,2026 to confirm service upon Respondent’s advocates on even date. 5.When the matter came up for interparties hearing on 5th May, 2026, neither the Respondent nor his counsel were in attendance. There was even no representation to explain their absence. The Applicant then informed court that the Respondent had neither filed a Memorandum of appearance nor response to their application, hence has urged the court to find their application unopposed and the same be allowed in the terms presented, more particularly prayer No (b). Determination: 6.Having listened to counsel for the Applicant, I have carefully read through the Notice of Motion application dated 22nd April, 2022, the Supporting affidavit in support thereof and perused the record to determine whether the prayers sought by the Applicant can be issued as prayed. 7.The legal foundation of the prayers sought by the Applicant is provided for under Order 42 Rule 6 of the Civil Procedure Rules which states that:(1)Every person detained in prison in execution of a decree shall be so detained—(a)where the decree is for the payment of a sum of money exceeding one hundred shillings, for a period not exceeding six months; and(b)in any other case, for a period not exceeding six weeks:Provided that he shall be released from such detention before the expiration of the said period of six months or six weeks, as the case may be—(i)on the amount mentioned in the warrant for his detention being paid to the officer in charge of the prison; or(ii)on the decree against him being otherwise fully satisfied, if the court so orders; or(iii)on the request of the person on whose application he has been so detained, if the court so orders; or(iv)on the omission of the person, on whose application he has been so detained, to pay subsistence allowance.(2)A judgment-debtor released from detention under this section shall not merely by reason of his release be discharged from his debt, but he shall not be liable to be rearrested under the decree in execution of which he was detained in prison. 8.This provision has set out the condition upon which a court should grant an order for stay of execution. By virtue of the said conditions, an Applicant is required to:-a.Demonstrate that the application has been made without unreasonable or inordinate delay.b.Demonstrate that they are likely to suffer substantial or irreparable loss that cannot be compensated by way of damages if the order of stay of execution is not granted.c.Demonstrate that his willingness to provide such security as the court may order for the due performance of such decree or order.d.Demonstrate that the intended appeal is not frivolous and that it would be in the interest of justice to secure it for hearing and determination. 9.In consideration of the applicant’s disposition in the Supporting affidavit, it is not in doubt that the application has been brought without unreasonable delay in that the impugned decision was rendered on 16th April, 2026 and the application herein is dated 22nd April,2026, which is just about six (6) days after. 10.As for the issue of demonstrating substantive loss to be suffered by the applicant, is has been submitted that the orders issued in the impugned ruling are mandatory in nature and likely to disrupt its internal operational processes, financial accounting systems and cooperative governance structures to the extent that it would be prejudiced. Therefore, without a response to counter this, this court finds that the Applicant has so far demonstrated the irreparable loss it is likely to suffer if the order for stay is not issued. 11.On the issue of depositing security for due performance of the decree, the court finds that the Applicant has expressed its willingness and readiness to abide by any reasonable conditions which the court will impose. The Respondent has not responded to demonstrate any loss or prejudice he is likely to suffer to assist this court determine such security. And this being the case, the best this court can do is to require that the appeal be expedited in the interest of justice for all the parties therein. 12.It is worthnoting that the Applicant has already filed Memorandum of Appeal, which is a clear indication of its interest to exercise its right of appeal at the earliest opportunity, I have read through the said Memorandum of Appeal and find that on the face of it, the Applicant has raised grounds which required to be considered and determined on merit. 13.All in all, this court finds that in its application, the Applicant has met the threshold set by the provisions of Order 42 Rule 6 of the Civil Procedure Rules and the same has not been challenged by the Respondent. 14.In the circumstances, the Notice of Motion application dated 22nd April, 2026, be and is hereby allowed in the following terms:a.That there be a stay of execution of the orders issued vide a ruling delivered on 16th April, 2026 vide Co-operative Tribunal, Nairobi, CTS No. E260 of 2026 Joseph Mburu vs Muruka Farmers Cooperative Society Ltd.b.The Deputy Registrar to call for and avail the original Record of Proceedings in Cooperative Tribunal CTS No. E 260 of 2026, Joseph Mburu vs Muruka Famrers Cooperative Society Ltd.c.The appellant shall filed and serve a Record of Appeal within fourteen (14) days from the date of this Ruling. 15.Mention on 20th May, 2026 for the parties to confirm compliance of the above directions and take further directions on the disposal of the appeal. 16.It is so ordered. 17.This ruling to be uploaded for delivery upon the parties and on their respective counsel this 8th day of May, 2026. RULING DATED, SIGNED AND DELIVERED THIS 8TH DAY OF MAY, 2026.HON. D. O. CHEPKWONYJUDGEIn the Presence of:Mr Kireu HB for Mr Muturi Njoroge counsel for the Appellant.N/A for the advocate for Respondent.Court Assistant: Nelly