Nambale Boys High School v Jorose Security Services

 **REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT BUSIA** **CIVIL APPEAL NO E002 OF 2025** **NAMBALE BOYS HIGH SCHOOL……………………….APPELLANT** **VERSUS** **JOROSE SECURITY SERVICES……………..…..….RESPONDENT** *(Being an appeal arising from the Judgment of Hon. Kassim Akida (SRM) delivered on 16th October 2025 in Busia Small Claims Court Commercial No E086 of 2025)* **RULING** **INTRODUCTION** 1. In its Notice of Motion application dated 25th February 2026 and filed on 27th February 2026, brought under Order 22 Rule 22 of the Civil Procedure Rules, Section 3A of the Civil Procedure Act and all other enabling provisions of law, the Appellant herein sought for an unconditional order of stay of execution of the Judgment delivered on 16th October 2025 in **Busia Small Claim’s Commercial Case No E086 of 2025** pending the hearing and determination of this appeal. 2. Fredrick Opiyo, swore an Affidavit in support of the said application on 23rd February 2026. He averred that the Busia Small Claims Court delivered its Judgment against the Appellant for a sum of Kshs 450,000/=. 3. He pointed out that the Appellant/Judgment debtor being dissatisfied by the said Judgment had appealed against the whole of the said Judgment in the High Court of Kenya at Busia through Memorandum of Appeal dated 12th November 2025 which appeal rises triable issues and high chances of success. 4. He asserted that the Respondent being the decree holder had since applied for the attachment to execute the orders emanating from the said Judgment and had instructed JENKS Auctioneers to proceed and sale by public auction the attached property to realise the decretal sum and the auctioneer may at any time auction the said property. 5. He further contended that the Appellant herein was a public institution funded by government money and that the execution of decrees against the government was not undertaken as in the ordinary civil cases. He was emphatic that the provisions of law prohibit attachment of property in respect of the Government. 6. He further asserted that unless the orders sought were granted, the Appellant stood to suffer great prejudice as its property risked being auctioned anytime as the letters of proclamation had already lapsed. 7. John Oketch Osanoh, swore a Replying Affidavit on 27th March 2026 in opposition to the Appellant’s application. The same was filed on 27th March 2026. He averred that he was the Director of the Respondent and, therefore, competent and duly authorised to swear the affidavit. 8. He stated that the application herein was misconceived, incompetent, bad in law and an abuse of the court process and ought to be dismissed with costs. He asserted that Judgment was lawfully entered in favour of the Respondent on 16th October 2025 in **Busia Small Claims Court Commercial Case No E086 of 2025** for a sum of Kshs 450,000/= and costs of Kshs 20,000/=. 9. He contended that despite the said Judgment, the Appellant had failed, refused and/or neglected to settle the decretal sum thereby necessitating execution proceedings. He pointed out that the Respondent lawfully instructed JENKS Auctioneers who proceeded to proclaim the Appellant’s property in execution of the decree. 10. He was categorical that the Appellant secretly moved this court and obtained orders for stay of execution without serving the Respondent, thereby denying the Respondent an opportunity to be heard contrary to the rules of natural justice. He added that the Respondent only became aware of the said orders upon attempting to proceed with attachment which conduct by the Appellant was dishonest and in bad faith. 11. He argued that the Appellant’s claim that it was a public institution and, therefore not subject to attachment was misleading and legally untenable as the law provides mechanisms for settlement of decrees against public entities and does not excuse non-payment. 12. He further stated that the Applicant had not demonstrated any of the conditions for grant of stay of execution under Order 42 Rule 6 of the Civil procedure Rules as to whether it would suffer any substantial loss. He was categorical that there was no evidence of substantial loss that had been demonstrated and that the Applicant had filed this application after inordinate delay and had not offered any security whatsoever. 13. He added that it was trite law that an Applicant seeking stay must be ready to deposit security and, therefore, this court should order the Applicant to deposit the entire decretal sum in court as a condition for any stay. He further stated that the intended appeal was frivolous, lacked merit and was only meant to delay the Respondent from enjoying the fruits of a lawful judgment. 14. He asserted that the Respondent duly rendered security services to the Applicant who had consistently refused to pay for the same until compelled through a court process. He argued that it was in the interest of justice that the Respondent be allowed to enjoy the fruits of its Judgment. It was his contention that unless the application is dismissed, the Respondent stood to suffer prejudice and financial loss while the Applicant continued to unjustly benefit from non-payment. He urged the court to dismiss the application herein with costs. 15. The Appellant’s Written Submissions were dated and filed on 15th April 2026 while those of the Respondent were dated and filed on 17th April 2026. The Ruling herein was based on the said Written Submissions that both parties relied upon in their entirety. **LEGAL ANALYSIS AND DETERMINATION** 1. The Appellant invoked Order 42, Rule 6 of the Civil Procedure Rules, 2010 and placed reliance on the case of **Butt vs Rent Restriction Tribunal [1979]eKLR** where the court held that stay must be granted so that an appeal may not be rendered nugatory should that appeal court reverse the judge’s decision. 2. It was emphatic that it had satisfied the conditions for grant of stay orders stipulated under Order 42 Rule 6 of the Civil Procedure Rules and there were no overwhelming hindrance to the grant of stay that had been demonstrated in the Respondent’s replying affidavit. It was emphatic that it had demonstrated through its Memorandum of Appeal that it had an arguable appeal with probability of success. 3. It pointed out that the Respondent had not demonstrated any prejudice it would suffer should the order of stay be granted and that further it had not filed any affidavit of means or status thus there was risk of failure to compensate the appellants should the appeal fail. 4. It argued that the assets available for execution being movable property were for the benefit of the school children of the Appellant and their attachment and sale would affect the provision of basic education. In this regard, it relied in the case of **Rhumba & Another vs Anyango[2025]KEHC 3463 (KLR)** where the court in the interest of children ordered a stay of execution unconditionally. 5. On its part, the Respondent also relied on Order 42 Rule 6 of the Civil Procedure Rules, 2010 and the case of **Butt vs Rent Restriction Tribunal** (Supra). It argued that the Applicant had failed to demonstrate any substantial loss and that its argument that it was a public institution was neither here nor there. In this regard, it placed reliance on the case of **Kenya Shell Ltd vs Kibiru & Another[1986] KLR 410** where it was held that substantial loss was what had to be prevented and without it, it was difficult to see why the Respondent should be kept out of his money. 6. It also relied in the case of **Machira T/A Machira & Co. Advocates vs East African Standard (No 2)[2002] KLR 63** where it was held that the applicant must show what damages it would suffer if stay is not granted. It further asserted that the Applicant had not offered any security. To buttress its point, it relied in the cases of **Halai & Another vs Thornton & Turpin (1963) Ltd[1990 KLR 365** and **Focin Motorcycle Co Ltd vs Ann Wambui Wangui & Another[2018]eKLR** where the common thread was that security was the cornerstone of an application for stay of execution. 7. It further argued that the Applicant obtained orders herein ex parte and failed to serve it. In this regard, it relied in the case of **Uhuru Highway Development Ltd vs Central Bank of Kenya & 2 Others[1996]eKLR** where it was held that a party who approaches the court ex parte must make full and frank disclosure. It asserted that failure to do so led to automatic discharge of such orders. 8. It blamed the Applicant for having not filed a record of appeal and cited several cases among them the case of **Absalom Dova vs Tarbo Transporters[2013]eKLR** where it was held that stay is a discretionary remedy for a deserving party, not one who seeks to delay justice. It added that being a public institution did not extinguish liability under a lawful judgment but merely affected the mode of execution. It was its contention, therefore, that the appeal raised no arguable issue. 9. It was emphatic that it was entitled to the fruits of its Judgment as was held in the case of **RWW vs EKW[2019]eKLR.** It urged the court to grant a conditional stay and order the deposit if the full decretal sum in court or a joint interest earning account within a specified time. It urged the court to dismiss the application for lack of merit and with costs. 10. Notably, before an order for stay pending appeal under Order 42, Rule 6(2) of the Civil Procedure Rules, 2010 could be granted, an applicant had to demonstrate the following:- 1. **That substantial loss may result unless the order is made.** 2. **That the application had been made without unreasonable delay.** 3. **Such security as the court orders for the due performance of the decree has been given by the applicant.** 11. The three (3) conditions for the grant of an order for stay of execution had to be met simultaneously as they are conjunctive and not disjunctive. 12. Notably, the decretal sum of Kshs 450,000/= was colossal. This court had due regard to the case of **Dr G. N. Muema t/a Mt. View Maternity & Nursing Home vs Miriam Maalim Bishar & Another (2018) eKLR** where it was held that the rigours of recovering sums of money can amount to substantial loss because of the resources that would be put in recovering the same. 13. Having said so, the Appellant had sought for unconditional stay on the ground that it was a public institution and further argued that the assets available for execution being movable property were for the benefit of the school children and the school would face substantial loss if the same was attached and sold. 14. It was clear that the Respondent had not filed any affidavit of means or status thus there was risk of failure to compensate the Appellant should the appeal fail. 15. It was for that reason that this court found and held that the Appellant had satisfied the first condition of being granted an order for stay of execution pending appeal. 16. The Judgment that the Appellant wished to appeal against was delivered on 16th October 2025. The present application was filed on 27th February 2026. This court found and held a period of four (4) months and eleven (11) from 16th October 2025 was not inordinate. There was, therefore, no delay in filing the said application. The court hence found and held that the Appellant had satisfied the second condition for being granted an order of stay of execution pending appeal. 17. Turning to the issue of security, this court had due regard to Order 42 Rule 8 of the Civil Procedure Rules, 2010 which provides as follows:- **“No such security as is mentioned in rules 6 and 7 shall be required from the Government or where the Government has undertaken the defence of the suit or from any public officer sued in respect of an act alleged to be done by him in his official capacity.”** 1. The aforesaid provision expressly protected the government form depositing any monies on instances where it sought a stay of execution pending appeal. This court was, therefore, persuaded that it should grant an unconditional stay as the Appellant had demonstrated exceptional circumstances for the grant of an unconditional stay of execution pending appeal. 2. This court noted the Respondent’s argument that it was not served with the application herein and received ex parte orders. Notably, that is the practice pending inter parties hearing and there was nothing illegal about that. 3. Going further, taking all the factors hereinabove into account, it was the considered view of this court that that it was **in the interests of justice** (emphasis court) that the Appellant be given an opportunity to have its Appeal heard on merit as it would suffer prejudice if it were denied an opportunity to fully present its Appeal to be heard on merit. 4. Indeed, the power to grant orders **in the interest of justice and/or for the ends of justice** (emphasis court) is well captured in Section 3A of the Civil Procedure Act that states that: - **“Nothing in the Act shall limit or otherwise affect the inherent power of the court to make such orders as may be necessary for the ends of justice** (emphasis court) **or to prevent abuse of the process of the court.”** **DISPOSITION** 1. For the foregoing reasons, the upshot of this court’s decision was that the Appellant’s Notice of Motion application dated 25th February 2026 and filed on 27th February 2026 was merited and the same be and is hereby allowed in the following terms:- 2. **THAT an order for unconditional stay of execution of the Judgment and Decree of Hon Kassim Akida (SRM) that was delivered at Busia in Busia Small Claim’s Commercial Case No E086 of 2025** **on 16th October 2025 be and is hereby granted pending the hearing and determination of the appeal.** 3. **The Appellant be and is hereby directed to file and serve his Record of Appeal within sixty (60) days from the date of this Ruling.** 4. **This matter will be mentioned on 23rd September 2026 to confirm compliance and/or for further orders and/or directions.** 5. **Costs of the application herein will be in the cause.** Order accordingly. **DATED** and **DELIVERED** at **BUSIA** On this **23rd** day of **July 2026** \_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_ **S. MOHOCHI** **JUDGE**