https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11563

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT NAIROBI** **MILIMANI LAW COURTS** **COMMERCIAL & TAX DIVISION** **HCCC NO 033 OF 2021** **IN THE MATTER OF J. LOIUS ONGUTO ADVOCATES** **IN THE MATTER OF AN APPLICATION FOR TAKING ACCOUNTS AND WINDING UP THE PARTNERSHIP** **CONSOLATA ONGUTO (Suing as the legal representative of the Estate of JOSEPH LOUIS ONGUTO (Deceased).........................................................................PLAINTIFF** **VERSUS** **PROF. EDWIN ODHIAMBO ABUYA T/A J. LOUIS ONGUTO ADVOCATES..............................................................................................DEFENDANT** **RULING** **Stay of execution pending appeal** 1. On 12.2.2026, the court found that the defendant was in contempt of court for noncompliance with the order of 25.10.2021 and 10.2.2023. 2. The subject orders required the defendant to file and serve the accounts for the partnership known as **J. Loius Onguto Advocates** for the period between 2012 and 2018 within 21 days. 3. The defendant filed the notice of motion dated 12.3.2026 seeking stay of execution of the ruling of 12.2.2026 pending the hearing and determination of its intended appeal. 4. The application is supported by the affidavit sworn by the applicant on 12.3.2026 and written submissions dated 15.4.2026. 5. On the requirements for grant of stay pending appeal, the applicant relied on **Order 42 Rule 6 of the Civil Procedure Rules**. He submitted that he has met the requirements of showing that he stands to suffer substantial loss, that he has sought stay without unreasonable delay and that he is willing to provide security for the due performance of the decree. 6. The applicant relied on **Butt v Rent Restriction Tribunal [1982] KLR 417**on the court’s discretion to grant stay to prevent an appeal from being render nugatory and **Kenya Shell Ltd v Benjamin Karuga Kibiru & Another [1986] KLR 410** on substantial loss. 7. The applicant asserted that he has a right to his freedom and liberty enshrined under **Article 29 of the Constitution**. He relied on **Mbigo v Wangocho [2015] KEHC 14908 (KLR)** and **Nazir v Mughai [2025] KEHC 2529** where the court granted stay of execution regarding the impending committal of a judgment debtor to civil jail. 8. The applicant submitted that he has demonstrated substantial loss in that he faces imminent execution and possible committal to civil jail which cannot be compensated by damages. In support, he relied on **Mwandaa & 4 others v Mwandoe & Another KEHC 25305**. 9. The applicant added that an order committing him to civil jail would occasion grave and irreparable disadvantage to his professional obligations and to the public interest reposed in his office as an associate professor of law and an advocate practicing in the name and style of **J. Louis Onguto and Company Advocates**. 10. The applicant submitted that his appeal is arguable, has high chances of success. He relied on among others, **President Delivery Unit & 3 others v Katiba Institute [2019] KECA 713 (KLR).** 11. On security, the applicant relied on **Focin Motorcycle Co. Ltd v Ann Wambui Wangui & another [2018] eKLR** that offering to provide security is a mark of good faith and security is upon the court’s discretion. **Response** 1. The plaintiff/ respondent filed grounds of opposition dated 17.4.2026 and written submissions dated **28.4.2026.** 2. The grounds of opposition are that 3. **the application offends the doctrines of *res judicata*, *functus officio* because the court already declined the defendant’s oral application for stay.** 4. **the application is premature as it seeks stay of execution in respect of sentence, yet the sentence has not been pronounced.** 5. **the applicant has not demonstrated substantial loss.** 6. **that a contemnor in continuing breach of court orders is undeserving of the court’s discretionary relief and cannot invoke the court’s equitable jurisdiction.** 7. **The application is incompetent, premature and an abuse of the court process.** 8. The respondent’s core contention is that the application for stay ought to be struck out or dismissed. She argued that the proper course is for the applicant to submit to the court’s jurisdiction. That if aggrieved by the specific sentence, apply to the Court of Appeal under **Rule 5 (2) (b) of the Court of Appeal Rules 2022**. 9. The respondent cited numerous authorities in support of various arguments. The key authorities include: - 10. **Tropical Suppliers Ltd & Others v International Credit Bank Ltd [2004] EA 331** no demonstration of substantial loss; 11. **Alldays Limited v Kamande [2023] KECA 1128** no security has been offered; 12. **Muturi v Ndumbi & 3 others [2026] KEELC 523 (KLR)**; an applicant cannot plead substantial loss regarding a sentence which has not been passed. 13. **Kimondo & another v Progressive Credit Ltd [20205] KEHC 7297 (KLR)**; a stay of execution cannot be ordered against a negative order – an order that does not command any party to do anything. 14. **Edward Njuguna Kangethe v Joel Kiema Mutinda & another [2014] KEHC 5798 (KLR)**; applicant first ought to purge his contempt then apply for stay **Analysis and Determination** ***Res judicata and functus officio*** 1. The respondent contended that the application for stay pending appeal offends the doctrines of res judicata and functus officio because the applicant oral application for stay was dismissed. 2. However, from the record, on 12.2.2026, the applicant sought temporary stay to enable him to file a formal application. The court declined the stay as there was no immediate danger, noting that the contemnor was yet to be sentenced and any date for sentencing would provide enough time for him to apply for a stay formally. 3. *Res judicata* under **section 7 of the Civil Procedure Act** requires that a matter in issue be fully determined. The oral application was for a temporary stay. 4. The respondent’s contention that the application offends the doctrines of *res judicata* and *functus officio* therefore fail. **Whether the applicant has met the threshold for stay pending appeal** 1. Stay of execution pending an appeal is discretionary. The discretion is exercised upon principles and not on whims or caprice, considering the circumstances of a case. 2. ***Order 42 Rule 6 (2) of the Civil Procedure Rules*** provides: - **“(2) No order for stay of execution shall be made under subrule (1) unless— (a) 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 (b) 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.”** 1. The impugned Ruling was delivered on 12.2.2026. The application for stay is dated 12.3.2026. The application for stay has been filed without unreasonable delay. **Substantial loss** 1. The applicant submitted that he has demonstrated substantial loss as he faces imminent execution and possible committal to civil jail which cannot be compensated by damages. 2. The respondent, on the other hand, argued that the applicant has not demonstrated substantial loss. She highlighted that sentencing has not yet been pronounced and there is no positive order to be stayed. She also argued that that a contemnor in continuing breach of court orders is undeserving of the court’s discretionary relief and cannot invoke the court’s equitable jurisdiction. 3. As earlier noted, on 12.2.2026, the court found that the defendant was in contempt of court for noncompliance with the order of 25.10.2021 and 10.2.2023. The contempt has not been purged. The applicant continues to be in contempt of court. 4. Necessary reminder; that it is the obligation of every person against, or in respect of whom, an order is made by a court of competent jurisdiction, to obey it unless and until that order is discharged. Whether you agree with it or not is not relevant. **Hadkinson v Hadkinson (1952) 1 All E.R 567** 5. Sentencing of the applicant was slated for 6.5.2026. However, the date was adjourned severally. It is now scheduled to occur on 27.7.2026. The applicant has not been sentenced. Therefore, there is no positive order. There is nothing to stay. 6. I do not understand whether the general order of stay of execution of the ruling means staying the conviction or anticipated sentence. Both of these requests are problematic in the circumstances of this case. Again, such general stay could be akin to asking the court to abdicate its judicial function after conviction. 7. The Court of Appeal has considered the question of positive and negative orders when considering and relevance to an application for stay. **Western College of Arts and Applied Sciences v EP Oranga & 3 others [1976] KECA 15 (KLR)**, **Executive Estates Limited v Kenya Posts & Anor. [2005] 1 E.A. 53** and **Co-operative Bank of Kenya Limited v Banking Insurance & Finance Union (Kenya) [2015] KECA 353 (KLR)** **Disposal** 1. From the above, I find that the applicant’s application for stay of execution is not well founded. It is dismissed with costs. **Dated, signed and delivered through Microsoft Teams online application this 23rd day of July, 2026** **-----------------** **F. Gikonyo M** **Judge** **In the presence of: -** Kisila for Contemnor present Opule for Plaintiff CA- Aggrey