https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9012

**Republic Of Kenya** **In the High Court Of Kenya at Mombasa** **Commercial & Tax Division** **Civil Appeal No. HCCOMMA No. E015 of 2024** **Eddie Joseph Omware..…………………......................................................Appellant** **Vs.** **Chrispine Odongo Oduor……………….................................................Respondent** **Ruling** 1. The Appellant/Applicant has filed numerous applications before this court and the trial court seeking essentially the same relief. These filings unnecessarily deluge the system by preoccupying the court with application after another rather than the final determination of the appeal. It is a practice which must be strongly deprecated. 2. The Applicant first filed an application dated 4 March 2025 seeking interim stay of the judgment of 23 September 2024 “and all subsequent proceedings herein” pending the hearing of the application and the appeal (the first application). This application was dismissed for failure of counsel to attend court on the date it was set down for hearing. The dismissal of the application dated 4 March 2025 prompted the filing of an application dated 27 March 2025 for reinstatement of the dismissed application (the second application). Before this application could be determined, the Applicant filed a fresh application dated 30 April 2025 seeking stay of execution of the judgment dated 23 September 2024 (the third application). Yet again before any of the pending applications could be heard, the Applicant filed another application dated 26 January 2026 seeking stay of execution and leave to amend the memorandum of appeal to raise a jurisdictional issue (the fourth application). 3. Procedurally, the Applicant’s motion for reinstatement of the first application needs to be determined before consideration of the other motions which relate to the same issue other than the fourth application which includes a prayer for leave to amend the memorandum of appeal. For neatness, this ruling will determine the application for reinstatement (the second application) first before the other motions. 4. The Applicant avers in regard to the motion for reinstatement that the first application was scheduled for inter partes hearing on 26 March 2025 although the causelist did not indicate that the same was coming up for hearing on that day. Nevertheless, the Applicant avers that his counsel, one Mr. Bunde, logged into the portal but unfortunately the matter was called when his connection was interrupted. The Applicant, therefore, contends that the failure by counsel to appear on that day was not intentional. The application is supported by a supporting affidavit sworn by Mr. Eliakim B. Okayo - advocate - of the same date. Mr. Okayo reiterates the averments in the application. No response was filed to this application. 5. Order 12 rule 7 of the Civil Procedure Rules provides that a court may set aside or vary a judgment when such a judgment has been entered or a suit has been dismissed upon such terms as may be just. Reinstatement of a suit upon dismissal for non-attendance is a matter of discretion for the court to which that application is made. In exercising this discretion, the court will consider the explanation offered for the failure to attend the hearing to its satisfaction with the balance tilting towards grant of the application unless there is demonstrable fraud. Apaloo, JA as he then was, in the case of ***Philip Chemowolo & Another v Augustine Kubede (1982) KAR 1036 at 1040***, observed as follows on exercise of this discretion: *Blunders will continue to be made from time to time and it does not follow that because a mistake has been made that a party should suffer the penalty of not having his case heard on its merits. I think the broad equity approach to this matter is that unless there is fraud or intention to overreach, there is no error or default that cannot be put right by payment of costs. The court as is often said exists for the purpose of deciding the rights of the parties and not the purpose of imposing discipline.* 1. Further, courts are also reminded not to visit the error or mistake of counsel on a litigant in exercise of this discretion. The Court of Appeal in ***CMC Holdings Ltd v James Mumo Nzioka [2004] KLR 173*** was emphatic that: *The discretion that a court of law has, in deciding whether or not to set aside ex parte order such as before us was meant to ensure that a litigant does not suffer injustice or hardship as a result of among other things an excusable mistake or error. It would in our mind not be a proper use of such discretion if the court turns its back to a litigant who clearly demonstrates such an excusable mistake, inadvertence, accident or error.* 1. I have considered the explanation advanced by the Applicant that the matter was not cause listed on the day it was coming up for hearing and that counsel experienced technical challenges when he tried to log in. I find this explanation to be reasonable and considering that the application was filed without delay, the same is allowed with the consequence that the application dated 4 March 2025 is reinstated. 2. Considering that the application dated 4 March 2025 is similar to the application dated 30 April 2025 which seeks stay of execution of the judgment dated 23 September 2024 and part of the application dated 26 January 2026 seeks similar prayers, the applications are hereby consolidated and considered as one application seeking the stay of execution of the said judgment pending appeal. In support of the application for stay, the Applicant avers that he has lodged an appeal against the trial court judgment and is apprehensive that the same would be rendered nugatory if stay is not granted and that further, he is ready to comply with conditions to be set by this court including depositing a sum of Kshs. 130,500.00 which he says is uncontested. 3. In opposition to the application for stay of execution, the Respondent filed a replying affidavit sworn on 30 June 2025 contending that the application for stay was a waste of time as the Applicant had sought the same orders before the trial court on three different occasions where he was directed to deposit the decretal sum in court. 4. I have considered the rival submissions by the parties and there is only one issue discernible from the consolidated applications and that is whether the Applicant has met the conditions for grant of stay of execution pending appeal. The principles governing stay of execution pending appeal are set out under Order 42 Rule 6(2) of the Civil Procedure Rules which provides as follows: *No order for stay of execution shall be made under sub rule (1) unless: -* 1. *the court is satisfied that substantial loss may result to the applicant unless the order is made and that the application has been made without unreasonable delay; and* 2. *such security as the court orders for the due performance of such decree or order as may ultimately be binding on him has been given by the applicant.* 3. In a nutshell, a court should be satisfied that a party seeking stay of execution will suffer substantial loss unless the stay sought is granted and that the said party has approached the court without unreasonable delay. The court once satisfied that these conditions have been met shall then determine sufficient security for the due performance of such decree or order sought to be stayed. 4. On the first condition requiring that the Applicant demonstrates substantial loss, a court must be satisfied that when considered as a whole, the circumstances of the matter before court demonstrate that execution of the order sought to be stayed will occasion a loss that may not be reparable if the Applicant is successful. 5. Courts have grappled with how to construct what would amount to substantial loss but there is consensus that the loss must be demonstrable to a certain degree. The Court in ***Tropical Commodities Suppliers Ltd & Others vs. International Credit Bank Ltd (in liquidation) [2004] 2 EA 331*** held as follows: **…*Substantial loss does not represent any particular mathematical formula. Rather, it is a qualitative concept. it refers to any loss, great or small, that is of real worth or value as distinguished from a loss without value or a loss that is merely nominal…*** 1. **In *James Wangalwa & another v Agnes Naliaka Cheseto Misc Application No 42 of 2011 [2012] eKLR*** the Court (Gikonyo, J) was of the viewthat***:*** *The applicant must establish other factors which show that the execution will create a state of affairs that will irreparably affect or negate the very essential core of the Applicant as the successful party in the appeal.* 1. An applicant who approaches court for stay of execution must, therefore, surmount this first hurdle by precisely demonstrating how if the party’s appeal succeeds he or she will not be in a position to recover the money lost. In the words of Gikonyo, J in [***Antoine Ndiaye v African Virtual University [2015] KEHC 6783 (KLR)***](https://new.kenyalaw.org/akn/ke/judgment/kehc/2015/6783/eng%402015-02-09)***:*** *13…the Applicant must show he will be totally ruined in relation to the appeal if he pays over the decretal sum to the Respondent. In other words he will be reduced to a mere explorer in the judicial process if he does what the decree commands him to do without any prospects of recovering his money should the appeal succeed. Therefore, in a money decree, like is the case here, substantial loss lies in the inability of the Respondent to refund the decretal sum should the appeal succeed. It matters not the amount involved as long as the Respondent cannot pay back. The onus of proving substantial loss and in effect that the Respondent cannot repay the decretal sum if the appeal is successful lies with the Applicant; follows after the long age legal adage that he who alleges must proof. Real and cogent evidence must be placed before the court to show that the Respondent is not able to refund the decretal sum should the appeal succeed.* [Emphasis added] 1. The Applicant submits that the impending attachment of his household goods will occasion substantial and irreparable loss. The Applicant has also advanced arguments that go to the merits of the appeal arguing that the appeal raises triable issues with chances of success. On his part, the Respondent contends that mere execution of a decree does not, without more, constitute substantial loss or warrant the grant of stay. 2. Despite impugning the trial court’s judgment through going into the merits of the appeal, the Applicant has not advanced any grounds in support of the substantial loss likely to be suffered. The Applicant has not demonstrated that the Respondent is not able to refund the decretal amount should the appeal succeed. Having failed the fundamental hurdle in grant of stay of execution, the application remains a shell and does not warrant further consideration of the other issues. The same is hereby dismissed. 3. Finally, the Applicant seeks leave to amend the memorandum of appeal. This prayer is contained in the fourth application dated 26 January 2026. In support thereof, the Applicant argues that he intends to raise a jurisdictional ground of appeal which he has since chanced upon when perusing the record of appeal. 4. I have considered the prayer, the response filed by the Respondent and the parties’ submissions. Grant of leave for amendment of pleadings is a discretionary power of the court. The court must be satisfied that an application for amendment of pleadings is brought within a reasonable period and such an amendment will not occasion prejudice to the other party. 5. On whether the application before me was brought timeously, it is noted that the memorandum of appeal in this case is dated 25 September 2024 and was filed on 26 September 2024. The application seeking leave to amend the memorandum of appeal is dated 26 January 2026 and was filed on 27 January 2026. This was 16 months from the time of filing the memorandum of appeal. Even though the Applicant avers that the application for leave to amend was triggered upon scrutiny of the record of appeal, I do not find that the application was filed within a reasonable period. This application appears to be an afterthought and a continuation of the abuse of the court process through filing numerous applications as observed at the beginning. 6. Furthermore, the ground of appeal the Applicant seeks to introduce does not relate to an issue raised before the trial court. Although the Applicant submits that the same is on a pure point of law, it is evident that it touches on factual issues regarding the question of when the cause of action arose. I agree with the Respondent that allowing this ground at this point and the same having not been raised at trial will prejudice its ability to respond as evidence cannot be adduced on appeal. In ***Kenya Hotels Limited v Oriental Commercial Bank Limited*** **[2018] eKLR,** the Court observed as follows: *Whether or not to allow an amendment will also depend on the nature and extent of the amendment. If the applicant is merely introducing a ground of appeal that is properly founded on the evidence that was adduced and canvassed before the trial court, which it is alleged the trial judge ignored or misapplied, the Court will more readily allow the amendment. Different considerations will however apply if the applicant is seeking to introduce a totally new ground of appeal that was not pleaded, evidence adduced, canvassed and determined by the trial court.* 1. The prayer for leave to amend the memorandum of appeal, therefore, fails and is dismissed. 2. For the foregoing reasons, the four applications are hereby determined as follows: 1. *The application dated 27 March 2025 seeking the reinstatement of the application dated 4 March 2025 is hereby allowed with no orders as to costs;* 2. *The Applications dated 4 March 2025, 30 April 2025 and 26 January 2026 are hereby dismissed, in their entirety, with costs to the Respondent.* 3. Orders accordingly. **Delivered, Dated** and **Signed** at **Nairobi** this **26th** day of **June,** **2026.** **Nabil M. Orina** **Judge** ***Judgment virtually delivered virtually in the presence of:*** ***Mr. Bunde for the Appellant/Applicant*** ***Ms. Amina h/b For Mr. Sadiq for the Respondent*** ***Hamza – Court Assistant***