https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12077

Naushad Trading Company Limited v BN Kotecha Limited (Civil Appeal E143 of 2025) [2026] KEHC 12077 (KLR) (31 July 2026) (Ruling) Neutral citation: [2026] KEHC 12077 (KLR) Republic of Kenya In the High Court at Mombasa Civil Appeal E143 of 2025 J Ngaah, J July 31, 2026 Between Naushad Trading Company Limited Appellant and BN Kotecha Limited Respondent (Being an appeal from the Judgment of the Chief Magistrate's Court at Mombasa delivered on 15th April 2025 in Mombasa CMCC No. 1280 of 2017, Hon. J.B. Kalo, CM) Ruling 1.This ruling determines the Notice of Motion application dated 6th October 2025 (“the present application”), brought by the Appellant/Applicant (“the Applicant”) under Order 45 Rule 1 of the Civil Procedure Rules, 2010, Sections 1A, 1B and 3A of the Civil Procedure Act, and Order 50 Rule 6 and Order 51 of the Civil Procedure Rules. The Applicant seeks, principally, a review of this Court's order of 13th May 2025 so as to substitute the condition requiring deposit of “the decretal sum” with a condition requiring deposit of taxed costs, and an extension of time within which to comply with the varied condition. Background 2.By a judgment delivered on 15th April 2025 in Mombasa CMCC No. 1280 of 2017, the trial court (Hon. J.B. Kalo, CM) dismissed the Applicant's suit against the Respondent, with costs to the Respondent. No decree for the payment of any sum of money was made in the Respondent's favour; the only pecuniary consequence of the judgment was an award of costs, which remained to be taxed. 3.Aggrieved, the Applicant lodged the present appeal together with a Notice of Motion dated 9th May 2025 (“the first application”), brought under, among other provisions, Order 42 Rule 6 of the Civil Procedure Rules and framed under a certificate of urgency of even date. The first application sought, in material part, orders that “there be a stay of execution of the judgment and/or decree and all consequential orders entered against the Appellant… on 15th April 2025 in Mombasa CMCC No. 1280 of 2017 pending the hearing and determination of this application,” and further, “pending the hearing and determination of the appeal.” 4.Upon considering the first application, I found no evidence of imminent danger of execution and accordingly declined to certify it as urgent. I nonetheless directed that stay of execution pending the hearing of the application do issue, on condition that:“…stay of execution pending the hearing of the application is granted on condition that the security for the performance of the decree in the nature of the decretal sum is deposited in an interest-earning bank account in the joint names of counsel for the respective parties within 45 days of the date of this order.” 5.That order of 13th May 2025 is the order which the Applicant, by the present application, now seeks to have reviewed. 6.The Applicant did not comply with the condition within the stipulated 45 days. Instead, on 6th October 2025, it filed the present application together with a fresh certificate of urgency, supported by the affidavit of Rita Saringi, an advocate on record for the Applicant. It thereafter filed written submissions dated 12th January 2026. The applicant's case 7.The gravamen of the present application, and of the supporting affidavit, is that the order of 13th May 2025 proceeded on a mistaken premise – namely, that there existed a “decree” and, correspondingly, a “decretal sum” capable of being secured. The Applicant avers that this is incorrect: the judgment of 15th April 2025 dismissed its suit outright, and the only pecuniary element remaining in the matter is the Respondent's award of costs in CMCC No. 1280 of 2017, which had, as at the date of the application, not yet been taxed, taxation having been adjourned to a mention on 6th November 2025. 8.On this footing, the Applicant asks the Court to review the order of 13th May 2025 under Order 45 Rule 1 of the Civil Procedure Rules on the ground of an error apparent on the face of the record – namely, the reference to a “decretal sum” – and to substitute in its place a condition requiring deposit of the taxed costs once ascertained. It further seeks an extension of time within which to comply with the varied condition, and an order that the interim stay already in place should remain in force pending determination of the present application. The respondent's case 9.The application is opposed. The Respondent's Replying Affidavit, sworn by its director Hemal Kotecha on 11th November 2025, and its written submissions dated 27th February 2026, raise, in substance, two objections. 10.First, that the Applicant has failed to satisfy the three conjunctive conditions for a stay of execution under Order 42 Rule 6(2) of the Civil Procedure Rules – substantial loss, absence of unreasonable delay, and provision of security – and that its failure to comply with the order of 13th May 2025 for close to five months amounts to bad faith and disregard of the Court's authority. 11.Second, and more fundamentally, that the judgment of 15th April 2025 is a negative order incapable of being stayed at all, so that the entire application – both the first application of 9th May 2025 and the present one – is misconceived and an abuse of the process of the court. For this proposition the Respondent relies, among other authorities, on Kaushik Panchamatia & 3 Others v Prime Bank Limited & Another [2020] eKLR and Republic v Director Land Administration Ministry of Lands and Physical Planning & 2 Others; Roysa Community Development Society Limited (Ex parte) [2022] KEELC 15741 (KLR). Analysis and determination 12.It is convenient to deal with the Respondent's second objection first, since, if well founded, it substantially disposes of the application. 13.It is now firmly settled, and has been since the decision of the Court of Appeal in Western College of Arts and Applied Sciences v E.P. Oranga & Others [1976-1985] EA 43, that an order dismissing a suit, being a negative order, is not capable of execution and, for that reason, is equally not capable of being stayed. There being nothing positive directed to be done, there is nothing for a stay to suspend; the only recourse available to a dissatisfied litigant is to prosecute an appeal. That principle has been applied consistently in later decisions, including Kaushik Panchamatia & 3 Others v Prime Bank Limited & Another (supra), where the Court of Appeal reiterated that “a negative order is incapable of being stayed because there is nothing to stay.” 14.Applying that principle to the present facts, the judgment of 15th April 2025 did no more than dismiss the Applicant's suit against the Respondent, with costs to the Respondent. It did not direct the Applicant to pay any sum of money, deliver up any property, or do or refrain from doing any other positive act, save as to costs. To that extent, the dismissal itself was, and remains, a negative order incapable of being stayed. It follows that the prayer in the first application – “that there be a stay of execution of the judgment and/or decree and all consequential orders entered against the Appellant” – was, insofar as it targeted the dismissal itself, incompetent from the outset. 15.The only element of the judgment capable of execution, and therefore capable, in principle, of being the subject of an application for stay, is the order as to costs. An order for costs against an unsuccessful party is a positive order and, once quantified by taxation and embodied in a certificate of costs or a decree, is executable in the same manner as a money decree. It is in respect of that order, and that order alone, that a competent application for stay of execution pending appeal could have been brought under Order 42 Rule 6 of the Civil Procedure Rules. 16.It follows that the order I made on 13th May 2025 was itself made upon a premise carried over, without demur, from the manner in which the first application had been framed. There being no decree for the payment of money as such, there was, properly speaking, nothing to stay and nothing that could accurately be described as “the decretal sum.” The condition requiring the Applicant to deposit “the decretal sum” as security for the performance of “the decree” was accordingly incapable of compliance – not because of any default on the part of the Applicant, but because the thing required to be deposited did not exist. This is precisely the kind of mistake or error apparent on the face of the record that Order 45 Rule 1(1)(b) of the Civil Procedure Rules is designed to correct, and I so find. 17.That finding, however, does not resolve matters in the Applicant's favour in the manner it seeks. The Applicant asks that the offending condition be replaced with one pegged to “taxed costs.” The difficulty is that, on the material before me – including the Court's Case Tracking System printout exhibited as “RS-2” – the costs in CMCC No. 1280 of 2017 have still not been taxed; the taxation proceedings were adjourned to a mention on 6th November 2025 “to confirm the status of the stay orders” before proceeding. There is, therefore, presently no ascertained figure of taxed costs any more than there was an ascertained “decretal sum.” A condition pegged to an amount that does not yet exist would be as incapable of compliance as the one it is meant to replace, and would merely postpone, rather than resolve, the underlying difficulty. 18.In these circumstances, and having found that the dismissal of the suit is not, in any event, amenable to a stay of execution, I do not consider it necessary, or indeed appropriate, to fashion a fresh security condition pegged to a sum that has yet to be ascertained. The proper and principled course is to discharge the condition imposed on 13th May 2025 in its entirety, and to leave the question of security, if any, to be addressed if and when it becomes a live issue – that is, once the costs in CMCC No. 1280 of 2017 have been taxed and a decree or certificate of costs issued. 19.For the same reason, it is unnecessary to determine, on this application, whether the Applicant has satisfied the three conjunctive conditions under Order 42 Rule 6(2) of the Civil Procedure Rules, since those conditions apply to an application for stay of execution properly so called, and no order capable of execution presently exists to be stayed. It is equally unnecessary, for now, to dwell on the Applicant's delay in complying with the order of 13th May 2025, or the imputation of bad faith, since that order is, for the reasons already given, being set aside as one incapable of compliance from inception. I would only observe that once costs are taxed and a decree or certificate of costs is issued, the Respondent will be entitled, as the successful party at first instance, to execute for those costs in the ordinary way. 20.It follows, too, that the interim order of 13th May 2025 staying execution “pending the hearing of the application” served no legal purpose insofar as it purported to stay execution of the dismissal, there being nothing in the dismissal to execute; and insofar as it might be read as staying execution for costs, it is, for now, spent, there being no taxed costs yet to execute for. There is accordingly no continuing interim stay left to be preserved, and the Applicant's prayer that it “do remain in force pending determination of this Application” does not arise. 21.Finally, the Applicant's prayer for extension of time to comply with the impugned condition falls away once the condition itself is set aside; there is nothing left to extend time for. Disposition 23.For the foregoing reasons, I make the following orders:(a)The order made on 13th May 2025, insofar as it required the Applicant to deposit “the decretal sum” as security for stay of execution, is reviewed and set aside, that condition being incapable of compliance and founded on the mistaken premise that a decree for the payment of money exists.(b)For the avoidance of doubt, the judgment of the trial court delivered on 15th April 2025, dismissing the Applicant's suit with costs to the Respondent, is a negative order and is not, and never was, capable of being stayed.(c)The Applicant's prayer for a fresh condition pegged to “taxed costs,” and its prayer for extension of time to comply with the condition imposed on 13th May 2025, are declined as premature, no costs having yet been taxed in CMCC No. 1280 of 2017.(d)Each party shall bear its own costs.Orders accordingly. SIGNED, DATED AND DELIVERED ON 31 JULY 2026NGAAH JAIRUSJUDGE