Njuguna v Njuguna t/a Freeman Auctioneers & another (Civil Appeal E1017 of 2025) [2026] KEHC 9436 (KLR) (Civ) (23 June 2026) (Ruling)

Njuguna v Njuguna t/a Freeman Auctioneers & another (Civil Appeal E1017 of 2025) [2026] KEHC 9436 (KLR) (Civ) (23 June 2026) (Ruling) Neutral citation: [2026] KEHC 9436 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Law Courts) Civil Civil Appeal E1017 of 2025 AC Mrima, J June 23, 2026 Between Dorcas Wanjugu Njuguna Appellant and Waireri Njuguna t/a Freeman Auctioneers 1st Respondent Coinage Investments Ltd 2nd Respondent Ruling 1.Through an application by way of a Notice of Motion dated 6th October 2025, the Applicant sought for a stay of execution of the order issued in Nairobi [Milimani] Chief Magistrates Commercial Court Misc. Application No. E467 of 2023 [hereinafter referred to as ‘the suit’] in which a warrant of arrest was issued against her for failure to deliver Motor Vehicle registration number KCE 679F [hereinafter referred to as ‘the motor vehicle’] to the Respondents or payment of Kshs. 1,207,500/= in lieu of her arrest. 2.The application was supported by the Applicant’s affidavit sworn on even date wherein several orders and applications in the suit were annexed. The Applicant also filed written submissions in urging this Court to grant the orders staying her arrest pending the determination of the instant appeal. 3.The Respondents vehemently opposed the application through a Replying Affidavit sworn by one Peter Gachogu Mburu, the 2nd Respondent’s Managing Director, on 23rd October 2025. He reiterated the background of the matter and urged this Court to disallow the application. The Respondents also filed written submissions to the application. 4.A brief genesis to the application traces the Applicant and the 2nd Respondent to a mutually agreed loan agreement dated 12th January 2023 where the Applicant was advanced the sum of Kshs. 1,050,000/= by the 2nd Respondent. On her part, the Applicant pledged the motor vehicle as security. She even deposited the original logbook and signed transfer forms with the 2nd Respondent to be returned to her once she fully serviced the loan. 5.It turned out that the parties did not get to the expected happy-ending. Alleging default in the loan repayment, the 2nd Respondent instructed the 1st Respondent to repossess the motor vehicle pursuant to the terms of the agreement. It was the 1st Respondent’s endeavour that turned into ‘a cat-and-mouse chase’ roping in the surbodinate Court which issued several orders culminating with an order directing the Applicant to produce the motor vehicle. There being no compliance, the Court issued a warrant of arrest against the Applicant with an option of paying Kshs. 1,207,500/= to the Respondents in lieu of the arrest. 6.It is that arrest order that prompted the filing of the current appeal and the application. 7.The application was canvassed by way of written submissions. Parties’ written submissions on record have been duly considered and will be ingrained in the latter part of this decision. Having perused the application and the supporting affidavit thereto, the Replying Affidavit in response and the parties’ written submissions, the only issue that stands out for this Court’s determination is whether the Applicant has met the threshold for grant of orders of stay pending appeal. 8.The prerequisite conditions for grant of stay of execution are provided for under Order 42 Rule 6 of the Civil Procedure Rules. The Applicant has to satisfy that she filed the application timeously, demonstrates substantial loss she is likely to suffer should stay not be granted and the issue of security for costs for due performance of the decree or order of the Court. 9.In the instant case, the impugned order was made on 30th September 2025 and the application was filed on 6th October 2025. There was, therefore, no delay in filing the application. 10.On the issue of substantial loss likely to be suffered, the Applicant is apprehensive that she is likely to be arrested and be committed to jail despite her contention that she was not accorded an opportunity to dispute the Respondents’ allegations before the trial Court. To that end, the Applicant took issue with the manner in which the suit was instituted and the proceedings conducted before the Court. Further, allegations of infringement of fair trial rights were raised. Whereas this Court is well aware that these issues will be canvassed at the hearing of the main appeal, suffice to point out that the agreement provided for the manner in which disputes arising between the parties were to be handled. 11.Therefore, in allowing the Applicant to suffer the consequences of a warrant of arrest before such fundamental and cardinal issues are settled, no doubt the Applicant will suffer substantial and irreversible loss. The condition is, hence, satisfied. 12.On the third issue on security, this Court notes that the parties indeed entered into the subject agreement. On one hand, the 1st Respondent contended that the Applicant never made any of the agreed monthly repayments. On the other hand, the Applicant did not controvert the allegation, but mainly raised concerns in the manner in which the suit was instituted and proceedings conducted. Likewise, the Applicant still has possession of the motor vehicle. Whereas this Court favours a grant of stay orders in the circumstances of this matter, fair play and equity calls for striking a balance between the two parties. As such, a conditional stay will be appropriate in this case. 13.From the foregoing, the application is merited and is accordingly allowed in the following terms: -(a)An Order of stay of execution of the Order made on 30th September 2025 in Nairobi [Milimani] Chief Magistrates Commercial Court Misc. Application No. E467 of 2023 be and is hereby issued pending the hearing and determination of the appeal herein subject to [b] below.(b)The order of stay in [a] above shall be conditional to the Applicant either depositing the sum of Kshs. 1,000,000/= [Read: Kenya Shillings One Million Only] in Court or by delivering the subject Motor vehicle KCE 679F with the 1st Respondent within 14 days of this Order.(c)In the event the Applicant defaults in [b] above, the Notice of Motion dated 6th October 2025 will automatically, and without more, stand dismissed with costs and the order of stay will be set-aside and discharged accordingly. For clarity, the order made on 30th September 2025 in Nairobi [Milimani] Chief Magistrates Commercial Court Misc. Application No. E467 of 2023 shall be executed forthwith.(d)This matter shall be fixed for further directions on a date to issue.(e)In the meantime, costs of the application to be in the appeal.Orders accordingly. DELIVERED, DATED AND SIGNED AT NAIROBI THIS 23RD DAY OF JUNE, 2026.A. C. MRIMAJUDGERuling virtually delivered in the presence of:Mr. Otieno, Learned Counsel for the Applicant.No appearance for Learned Counsel for the Respondent.Michael/Amina – Court Assistants.