https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12544

REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT MACHAKOS HIGH COURT CIVIL MISCELENEOUS NO E345 OF 2025 ONESIMUS MUSYOKI Vs MELVIN MWASHI RULING Before the court is the notice of motion dated 4th November 2025. The same has been brought under Order 9 rule 9, Order 42 rule 6, section 79G and 3A of Civil Procedure Act, Article 159 (2)(d) of the Constitution. The prayers sought are: 1. Spent 2. That this Honorable Court to be pleased to grant a stay of execution of the decree and /or warrants of attachment arising from the judgment and ruling and orders of the Small Claims Court at Machakos delivered on the 4th June 2025 and 25 August 2025 pending the hearing and determination of this application and /or the intended appeal. 3. That this Honorable Court be pleased to grant the applicant leave to file an appeal out of time against the same ruling and orders delivered on 25 August 2025. 4. That upon grant of prayer 3 above the annexed draft memorandum of appeal be deemed duly filed and served. 5. That the cost of this application be in the course. The grounds upon which application is based are: 1. That the ruling dismissing the applicant's application to set aside interlocutory judgement was delivered on 21st August 2025 but the applicant was never informed by his former advocate. 2. That the applicant was misled by the said advocate into believing that a response to the claim had been filed and that the matter was awaiting hearing. 3. That the applicant only became aware of the dismissal upon auctioneers descending upon his premises and carting away his motor vehicle registration number KDM 643S in execution of the decree. 4. That the applicant has an arguable appeal with high chances of success and ought to be given an opportunity to be heard. 5. That unless stay of execution is granted the applicant will suffer substantial loss and the intended appeal will be rendered nugatory 6. That the delay in filing this appeal was neither deliberate nor inordinate but occasioned by the misrepresentation and negligence of the previous advocate. 7. That it is in the interest of justice that the applicant be allowed to ventilate his appeal on merit. The application is also supported by the supporting affidavit sworn by the applicant on 4th November 2025. In the affidavit it is stated that he was the defendant in the Small Claims case number E103 of 2025 before the Small Claims Court at Machakos Law Courts. After an interlocutory judgement was entered against him, he instructed the firm of M T Wambugu and Co Advocates to file an application to set aside the said judgement and to be allowed to file his response out of time. The said application was heard and was dismissed on 21st August 2025 but his former advocate never informed him of the outcome of the said matter. The advocate only informed him that he had filed a defense or response and that the matter would proceed for hearing in due course. He later came to realize that his application had been dismissed 2 months earlier when auctioneers descended upon his premises, proclaimed and carted away his motor vehicle registration number KDM 643S in execution of the decree of the Honorable Court. He indicated that he is desirous to appeal against the said ruling but the period for filing the said appeal has since lapsed though it was not his fault. That unless a stay of execution is granted, he stands to suffer irreparable loss as his property has already been seized and is at risk of being sold. He attached a copy of the ruling, proclamation and a draft memorandum of appeal. He stated that the appeal raises triable issues. He further indicated that he is ready and willing to abide by any conditions this Honorable Court may impose including provision of reasonable security. The application was opposed. The respondent in her replying affidavit sworn in on 20th November 2025 stated that the applicant here was duly served with the claim as well as notice of entry of judgement but has been indolent and the present application is a knee jack reaction to the notice of entry of judgement and subsequent warrants of attachment. The applicant has not denied being served with the pleadings and notices. The interlocutory judgement was entered against the applicant after the court was satisfied that proper service had been affected so it is a regular judgement that cannot be faulted. That the Honorable Court is mandated by section 34 of the Small Claims Act number 2 of 2016 to ensure expeditious determination of cases within 60 days from their inception. Setting aside the interlocutory judgement would essentially be pegging back the respondent's progress in prosecuting her case which will cause her great harm and irreparable loss that cannot be compensated by costs. No appeal has so far been filed so the applicant is using this application as a delaying tactic to prevent the respondent from enjoying the fruits of the judgement. The application is premature and there is nothing before the court to justify the granting of a stay of execution. There is no guarantee that the applicant shall proceed with filing of the intended appeal once granted stay of execution which means that there is a plausible risk that the applicant shall end up enjoying stay of execution without progressing the appeal and thereby prolonging the suffering and prejudice on the respondent. He stated that the applicant has not offered security in the application yet order 42 rule 6 of the Civil Procedure Rules lists the furnishing of security as a prerequisite for the orders sought. In the alternative, that the court should find it fit to stay the execution, they prayed that the applicant be ordered to deposit that entire judgment sum in an interest earning account in the names of the parties’ advocates within 14 days as security for due performance of the decree. He termed the application as erroneous, frivolous, scandalous, draconian and a waste of judicious time and should be dismissed with costs. Parties filed written submissions to the application. APPLICANTS SUBMISSIONS They are dated 22nd December 2025. They submitted that the applicant is entitled to the orders in the application and denying him the same is equivalent to chasing one from the judgement seat without giving him any opportunity to be heard. Article 49 of the Constitution of Kenya grants every citizen of Kenya a right to be heard and therefore the applicant has a right to be heard. Whether the applicant was served or not it is only fair that the matter be heard and determined on merit. On whether a stay over execution should issue, it was submitted that the respondent has not demonstrated that he will suffer irreparable loss that cannot be compensated in monetary terms as if the applicant loses his appeal then the respondent can be compensated as the value of the attached motor vehicle is known. They relied on Order 42 Rule 6 which gave the requirements for grant or a stay of execution to be: 1. Substantial loss may result to the applicant unless the order was made; 2. The application was made without unreasonable delay and 3. Such security as the court orders for the due performance of such decree or order as may ultimately be binding on him as being given by the applicants. They stated that the mistake in not filling the applicant's pleadings was a mistake of his advocates which mistakes should not be visited upon him as a litigant. On the issue of security they offered that the applicant be allowed to pay at least half of the amount for now. RESPONDENTS SUBMISSIONS. They are dated 18th December 2025. They submitted that they were opposed to setting aside of the judgement as the respondent followed the court rules but the applicant failed to enter appearance and file a response to his claim. They indicated that they were opposed to stay of execution pending appeal as no concrete evidence had been shown to prove that the applicant will suffer irreparable harm or substantial loss if execution proceeds. Mere payment of a decretal sum does not constitute substantial loss as the money remains recoverable if the appeal succeeds. Moreover the applicant has not even filed an appeal yet it is 5 months since the interlocutory judgement was entered. They stated that the applicant has not offered any bank guarantee or deposit of the decretal sum into court yet under Order 42 Rule 6 cannot be granted unless the applicant provides security for the due performance of the decree. Moreover, the judgement here which is sought to be stayed is a negative order which inherently is incapable of execution and therefore cannot be stayed. In conclusion they submitted that the respondent has a right to the fruits of the judgement and the finality of litigation. After carefully considering the pleadings and submissions by both the parties one thing is clear that this is a money decree and the decree holder should ordinarily be allowed to enjoy the fruits of his judgement, the appeal notewithstandings. However I have considered the case of Kenya Shell versus Kabiru and another 1986 KLR 410 for the principles to consider and the unreported case of Cotecna Inspection SA versus Hems Group Trading Co Ltd 303/2000 where the Court of Appeal in an application involving a money decree had to consider the possible inability of the respondent company failing to refund the money. The court went on to grant a stay although a substantial money decree was the subject matter. In the present case, the respondent has not shown that he will be in a position to refund the money if he was to be paid. In the circumstances of this case I find that substantial loss could result to the applicant in view of the possible inability of the respondent to pay. I also find that the application was made without unreasonable delay and in view of the offer to deposit at least half the decretal amount, I consider this qualifies the applicant in respect of the final requirement concerning the security for the performance of the decree. In view of the above this application succeeds and an order for stay is accordingly granted in terms of prayer 2 of the application provided that at least half the decretal amount is deposited in an interest earning a joint account in the names of the advocates for the parties within the next 14 days. However should the advocates fail to agree, the applicant is ordered to make a direct deposit into the court within the same period. Failure to comply shall result in the respondent being at Liberty to execute the degree. Leave to file and appeal out of time is also granted and the same should be filed within 14 days from the date of this ruling. Each party to bear its own cost. It is so ordered. READ AND PUBLISHED THIS 8TH JULY 2026 IN THE PRESENCE OF: NO PARTY PRESENT BEFORE HON JOYCE GANDANI, JUDGE