Nyakanga v Momanyi (Civil Appeal E051 of 2025) [2026] KEHC 13250 (KLR) (16 July 2026) (Ruling)

# **** # **REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT NYAMIRA** **(CHERERE-J)** **HCCA E051 OF 2025** **THOMAS GISAIRO NYAKANGA.................APPELLANT/APPLICANT** **VERSUS** **JOSEPH MICHIEKA MOMANYI.........................................RESPONDENT** **RULING** 1. By the **Notice of Motion Amended on 13th May 2026, Thomas Gisairo Nyakanga**, the Appellant/Applicant, seeks an order of stay of execution of the judgment delivered by this Court on **29th January 2026** pending the hearing and determination of his intended appeal to the Court of Appeal. The application is expressed to be brought under Order 42 Rule 6 of the Civil Procedure Rules and all other enabling provisions of the law. The Applicant also prays that the costs of the application abide the outcome of the intended appeal. 2. The application is supported by the affidavit of Thomas Gisairo Nyakanga sworn on 13th May 2026. He expresses dissatisfaction with the judgment delivered by this Court on 29th January 2026 and states that he has taken steps to challenge that decision before the Court of Appeal, annexing what is described as a Memorandum of Appeal. He maintains that unless execution is stayed, the intended appeal will be rendered nugatory and that he stands to suffer irreparable loss. He further contends that, having regard to the nature of the dispute, the requirement to furnish security for the due performance of the decree should not apply. 3. Joseph Michieka Momanyi, the Respondent resists the application through the Replying Affidavit sworn on 02nd July 2026. He maintains that the application is devoid of merit, that the judgment delivered by this Court was firmly anchored in both the law and the evidence, and that the present application is intended only to delay the finalisation of the succession proceedings. He therefore urges the Court to decline the discretionary relief sought. 4. I have considered the Motion, the affidavits and the parties' respective positions. The sole issue for determination is whether the Applicant has established a basis for the grant of a stay of execution. 5. Order 42 Rule 6 of the Civil Procedure Rules, which empowers the Court to grant a stay of execution pending appeal. That jurisdiction, however, can only be invoked where the decree or order sought to be stayed is capable of execution. 6. The judgment delivered on 29th January 2026 dismissed the appeal and affirmed the decision of the trial court. It neither required the Applicant to perform any positive act nor imposed any enforceable obligation upon him. Save for the order as to costs, it is a negative order. 7. In [**Kamukunji Business Centre Ltd & another v Wainaina & 2 others [2026] KECA 1285 (KLR)**](https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1285/eng%402026-07-10)**,** the Court of Appeal reaffirmed that a dismissal order is not a positive order capable of execution and that, there being nothing to execute, no order of stay can issue. That principle is dispositive of the present Motion. 8. The Notice of Motion Amended on 13th May 2026 is accordingly dismissed with costs to the Respondent and this file is closed **DELIVERED AT NYAMIRA THIS 16th DAY OF July 2026**  **WAMAE.T. W. CHERERE** **JUDGE** **Appearances** **Court Assistant - Hilda** **For Appellant - Mr. Sagwe for S.M.Sagwe & Co. Advocates** **For Respondent - Mr. Kimaiyo for B.N.Ogari & Co. Advocates**