https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8554

Mutitu v Oyando & another (Small Claims Appeal E184 of 2025) [2026] KEHC 8554 (KLR) (22 May 2026) (Ruling) Neutral citation: [2026] KEHC 8554 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Law Courts) Small Claims Appeal E184 of 2025 AC Mrima, J May 22, 2026 Between Beth Muchiri Mutitu Appellant and Isaac Bonuke Oyando 1st Respondent Patrick Aberi Nyabicha 2nd Respondent Ruling Background: 1.The dispute before this Court emanates from Nairobi [Milimani] Small Claims Court Civil Claim No. E4520 of 2024 (hereinafter referred to as ‘the Suit’), wherein the Appellant/Applicant, Beth Muchiri Mutitu, filed a claim against Isaac Bonuke Oyando and Patrick Aberi Nyabicha, the 1st and 2nd Respondents herein respectively. 2.The trial Court entered judgment in favour of the Appellant on 14th March 2025 for general and special damages amounting to Kshs. 160,550 plus costs and interest, summing up to Kshs. 179,350. Following the judgment, the Appellant proceeded with execution, leading to the proclamation and attachment of the 2nd Respondent’s motor vehicle, Registration No. KBQ 826J, which was subsequently sold by public auction on 4th April 2025 to realize the decretal sum. 3.The Respondents subsequently moved the trial Court via applications dated 2nd and 25th April 2025, seeking to set aside the ex parte judgment on the grounds of non-service. On 25th July 2025, the learned Adjudicator delivered a Ruling setting aside the ex parte judgment of 14th March 2025 and directed that the matter proceeds for mention on 9th September 2025, granting the 2nd Respondent leave to file requisite pleadings. 4.Aggrieved by the turn of events, the Appellant lodged an appeal alongside the instant application. The application was opposed, and was heard by way of written submission, hence, this ruling. The Application: 5.The application was by way of a Notice of Motion dated 12th August 2025, and it sought the following orders: -1.Spent.2.Spent.3.That this Honourable Court be pleased to order a stay of further proceedings in NAIROBI SMALL CLAIM CIVIL CLAIM NO.E4520 OF 2024 pending the hearing and determination of the Appeal.4.That costs be in cause. 6.The application was supported by the Affidavit of Beth Muchiri Mutitu deposed to on 12th August 2025. It was her case that the Respondents were duly served with all notices, 1st, 2nd, and 3rd mentions, Judgment Notice, and Proclamation Notice but failed to act until their motor vehicle was attached and sold at a public auction on 4th April 2025. 7.The Applicant deposed she has already recovered and utilized the decretal sum for her personal use, debts, and school fees, leaving her financially incapable of refunding the proceeds. She argued that reopening the claim will cause her immense prejudice. On that basis, it was her case that the trial adjudicator erred by setting aside a judgment that had already been executed and overtaken by events. The Submissions 8.In her written submissions dated 17th December 2025, the Appellant argued that the Respondents acted with inordinate delay and only moved the court after the judgment sum had been recovered and the claim settled. 9.It was her case that failing to grant stay of proceedings will cause great prejudice, as the subject motor vehicle had already been transferred to a third party, and she cannot refund the realized sums. She relied on the case of Global Tours & Travels Limited; Nairobi HC Winding Up Cause No. 43 of 2000, arguing that the grant of a stay of proceedings is a matter of judicial discretion to be exercised in the interest of justice. 10.The Appellant further drew support from the decision in the case of Ahmednassir, Abdikadir & Co Advocates -vs- National Bank of Kenya (2007) KEHC 691(KLR) to emphasize that the paramount question is whether a stay is in the interest of justice. The Appellant indicated her readiness to abide by the conditions for stay, including the provision of security for due performance of the decree. 11.To assert arguability of her appeal, the Applicant referred to the Court of Appeal’s principles in Chris Munga N. Bichage -vs- Richard Nyagaka Tongi & 2 Others (Civil App. 39 of 2013), maintaining that her appeal is arguable and will be rendered nugatory if the trial Court proceedings are not stayed. The Respondents’ case: 12.The application was opposed through a Replying Affidavit sworn by Patrick Aberi Nyabicha, the 2nd Respondent, on 11th November 2025. He deposed that he is a stranger to the Appellant’s process server and was never served at Naboka Sacco offices, an address he has never visited. It was his case that Rule 35 of the Small Claims Court Rules mandates personal service, and since the trial court found no valid service, the ex parte judgment was an incurable nullity incapable of supporting lawful execution. He deposed that the Appellant cannot rely on the excuse of having utilized the proceeds, as the law does not permit a litigant to benefit from an illegality. 13.He contended that he acted promptly upon learning of the attachment, and that the Appellant’s plea of financial hardship could not override the dictates of justice. The Submissions: 14.The 2nd Respondent urged his case further through written submissions dated 1st December 2025. From the outset, it was his case that service is the foundation of jurisdiction, and the trial court correctly set aside the judgment upon establishing that the affidavits of service were defective and internally inconsistent. 15.The Respondent relied various authorities among them, Mbogo -vs Shah (1968) EA 93 and United India Insurance Co. Ltd & Others -vs- East African Underwriters (Kenya) Ltd NRB CA Appeal No. 36 of 1983 (1985) eKLR to argue that an appellate court should not interfere with the wide discretion to set aside default judgments unless the trial court misdirected itself. Further support was drawn from the authority in Stefano Ucceli -vs- Hans Jurgen Langer & Another (2021) eKLR to justify the setting aside of the judgment. 16.On the issue of execution proceeds, the Respondent cited Macfoy -vs- United Africa Co. Ltd (1961) 3 All E.R. 1169 to submit that an act founded on a void judgment is incurably bad. He also relied on the case of Gusii Mwalimu Investment Co. Ltd -vs- Mwalimu Hotel (1996) eKLR and Aga Khan Hospital -vs- Busan Munira [2015] eKLR, to argue that execution on a void judgment is a nullity and restitution is mandatory. 17.Finally, the Respondent called to his aid the precedent set in Republic -vs- Public Procurement Administrative Review Board ex parte Synerchemie (2016) eKLR, Hadkinson -vs- Hadkinson [1952] 2 All ER 567, and Stephen Boro Gitiha & 4 Others -vs- Family Finance Bank [2015] eKLR, to advance the argument that a party cannot use subsequent events, such as spending the money, to shield themselves from the reversal of an illegal act. 18.The Respondents prayed that the application be dismissed with costs. Analysis and Determination: 19.Having carefully considered the application, the affidavits, and the rival submissions by the parties, the sole issue for determination is whether the application meets the threshold for stay of proceedings. 20.The power of the High Court to stay proceedings pending an appeal is discretionary and must be exercised judicially. Order 42 Rule 6 of the Civil Procedure Rules and Section 3A of the Civil Procedure Act mandate the Court to weigh the competing interests of the parties to ensure the ends of justice are met. The former provides thus;1)No appeal or second appeal shall operate as a stay of execution or proceedings under a decree or order appealed from except appeal case of 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. 21.In Kenya Wildlife Service -vs- James Mutembei (2019) eKLR, the Court, in reference to Halsbury’s Laws of England 4th Edition Vol. 37 page 330 and 332, discussed stay of proceedings in the following manner;… The stay of proceedings is a serious, grave and fundamental interruption in the right that a party has to conduct his litigation towards the trial on the basis of the substantive merits of his case, and therefore the court’s general practice is that a stay of proceedings should not be imposed unless the proceeding beyond all reasonable doubt ought not to be allowed to continue.This is a power which, it has been emphasized, ought to be exercised sparingly, and only in exceptional cases.It will be exercised where the proceedings are shown to be frivolous, vexatious or harassing or to be manifestly groundless or in which there is clearly no cause of action in law or in equity. The applicant for a stay on this ground must show not merely that the plaintiff might not, or probably would not, succeed but that he could not possibly succeed on the basis of the pleading and the facts of the case. 22.In the foregoing case, the Court discussed the caution Courts must exercise while considering applications for stay of proceedings. It was observed;… Stay of proceedings is a grave judicial action which seriously interferes with the right of a litigant to conduct his litigation. It impinges on right of access to justice, right to be heard without delay and overall, right to fair trial. Therefore, the test for stay of proceeding is high and stringent. 23.In David Morton Silverstein -vs- Atsango Chesoni (2002) eKLR the Court of Appeal clarified the circumstances where stay of proceedings may be granted. The Learned Judges observed;… The Court is not laying down any principle that no order for stay of proceedings will ever be made; that would be contrary to the provisions of rule 5(2)(b) of the Court’s own rules. But as the court pointed out in the case we have already cited, each case must depend on its own facts and the facts of this particular case before us, as were the facts in the earlier case, do not show that the appeal will be rendered nugatory if we do not grant a stay. (emphasis added) 24.With the foregoing guidance, the focus now turns to the case at hand. 25.The Appellant’s primary grievance, as can be discerned from the Memorandum of Appeal, is that the trial Court set aside a judgment that had already been executed, the decretal sum recovered, and the attached property sold to a third party. The Appellant contended that the circumstances rendered the trial Court’s order a nullity operating in a vacuum. Conversely, the 2nd Respondent argued that the underlying judgment was obtained through fraudulent service, rendering the subsequent execution entirely void and necessitating restitution. 26.It is vital to separate the merits of the appeal from the merits of this application. This Court is not currently tasked with determining whether the trial Court was right or wrong in setting aside the judgment of 14th March 2025. The question is whether the proceedings in the Small Claims Court should be halted while the High Court makes that determination. If the Small Claims Court proceedings are allowed to continue, the trial Court will proceed to hear the matter on its merits and potentially issue a new judgment. Should the Appellant subsequently succeed in her appeal before this Court (finding that the ex parte judgment of 14th March 2025 should not have been set aside) the parallel proceedings at the Small Claims Court would be rendered a complete exercise in futility, causing an unnecessary expenditure of judicial time and resources. 27.Granting a stay of proceedings serves the purpose of preserving the substratum of the appeal. As held in David Morton Silverstein -vs- Atsango Chesoni case (supra), this Court must weigh the pros and cons of granting the order, keeping in mind the dictates of justice. The Appellant has raised an arguable appeal regarding the legal effect of setting aside a fully executed decree where third-party rights have already crystallized. 28.Further, it should be noted that 2nd Respondent will suffer no irreparable harm if the trial Court proceedings are stayed. If the appeal is eventually dismissed, the matter will simply revert to the Small Claims Court for hearing on the merits, and the Respondent can pursue restitution of the executed sums as guided by law. However, subjecting the Appellant to a fresh trial while the validity of the prior executed judgment is still under appellate scrutiny would be highly prejudicial. 29.The foregoing discussions match stripe for stripe with the observation in Global Tours &Travels Limited; Nairobi HC Winding Up Cause No. 43 of 2000 where the Court set out the consideration that guide a Court. It was held;…. In deciding whether to order a stay, the court should essentially weigh the pros and cons of granting or not granting the order. And in considering those matters, it should bear in mind such factors as the need for expeditious disposal of cases, the prima facie merits of the intended appeal, in the sense of not whether it will probably succeed or not but whether it is an arguable one, the scarcity and optimum utilization of judicial time and whether the application has been brought expeditiously. 30.Drawing from the foregoing, and in view of the fact that the application was lodged barely three weeks after the impugned Ruling was rendered, then, justice of this matter, calls for a halt of the proceedings at the trial Court. In essence, the application succeeds. Disposition: 31.In light of the foregoing findings and conclusion, the Notice of Motion dated 12th August 2025 is hereby allowed in the following manner: -(a)An order of stay of further proceedings in Nairobi [Milimani] Small Claims Court Civil Claim No. E4520 of 2024 is hereby granted pending the hearing and determination of the Appeal.(b)Costs of the application shall abide the outcome of the Appeal.Orders accordingly. DELIVERED, DATED AND SIGNED AT NAIROBI THIS 22ND DAY OF MAY,2026.A.C. MRIMAJUDGERuling virtually delivered in the presence of:Ms Magelo, Learned Counsel for the Appellant/Applicant.Mr. Ochieng’, Learned Counsel for the Respondents.Michael/Amina – Court Assistants.