https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11093

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT MACHAKOS** **HCCA NO. E172 OF 2025** **JOSPHAT NYINGI PETER………………………………….………..1ST APPLICANT** **ROSLEFT OIL LIMITED** **TRADING UNDER THE FRANCHISE NAME** **ORYX ENERGIES KENYA LIMITED………………………………2ND APPLICANT** **VERSUS** **SALOME MUTHEU MUTUKU** **(**Sued as the Legal Representative of the Estate of **JOHN MUTUA MICHAEL)…………………………………….….….1ST RESPONDENT** **TALA QUICK PETROL STATION…………………………………..2ND RESPONDENT** **KENYA POWER & LIGHTING CO. LTD…………………………..3RD RESPONDENT** **RULING** 1. Before this Court is the Notice of Motion dated 30th July 2025. The application is expressed to be brought under the provisions of Order 22 Rules 1 and 2, Order 22 Rule 22, Order 42 Rule 6, Order 51 Rule 1 and 3 of the Civil Procedure Rules, Section 1A,3A and 79G of the Civil Procedure Act, wherein the Applicant seeks the following orders: 2. THAT this Honourable Court be pleased to stay execution of the Warrants of Attachment issued on the 19th May 2025 in Kangundo PMCC No. E198 of 2021 and unlawfully and illegally enforced against the Applicants by M/S Bealine Kenya Auctioneers as agents of the 1st Respondent, pending the hearing and determination of the Applicants' appeal. 3. THAT this Honorable Court be pleased to issue any other orders that it may deem fit, just and expedient in the interests of justice. 4. THAT the costs of this Application be in the cause. 5. The application is premised on grounds set out on the face of the motion and is supported by factual averments contained in the supporting affidavit of Peninah Mutindi: a director of the 2nd Applicant, sworn on 30th July 2025. 6. She deponed that she was duly authorized to swear the affidavit on behalf of both Applicants. 7. The Applicants averred that they had instituted objector proceedings before the trial court claiming legal, equitable and beneficial interests in the proclaimed motor vehicle and other movable goods. 8. They contended that by a Ruling delivered on 29th July 2025 in Kangundo PMCC No E198 of 2021, the learned trial magistrate dismissed the objector proceedings, thereby permitting the 1st Respondent, as the Decree-Holder, to proceed with execution against the proclaimed goods. 9. Being dissatisfied with the said Ruling, the Applicants lodged the present appeal contending that the learned trial magistrate erred in dismissing the objector proceedings instead of determining their claim to the proclaimed goods. 10. The Applicants contended that unless this Court grants an order of stay, M/S Bealine Kenya Auctioneers are likely to proceed with the attachment and sale of the 1st Applicant’s motor vehicle, Registration No. KDH 360G Toyota Fielder, together with the 2nd Applicant’s movable goods and installed business assets proclaimed on 20th May 2025, thereby rendering the appeal nugatory. 11. The Applicants maintained that they stand to suffer substantial loss if execution proceeds, that the intended appeal is arguable, that the application was brought in good faith and without unreasonable delay and that the 1st Respondent would not suffer prejudice if the orders sought are granted. 12. The 1st Respondent opposed the application through a replying affidavit of Salome Mutheu Mutuku sworn on 27th March 2026. 13. The 1st Respondent contended that the 1st Applicant is the registered proprietor of Tala Quick Petrol Station and that the business name has no legal personality separate from its registered proprietor. 14. She maintained that the proclaimed assets, including motor vehicle registration No. KDH 360G, belonged to the Judgment-Debtor and were therefore lawfully attached in execution of the decree. 15. The 1st Respondent further averred that the subordinate court properly dismissed the objector proceedings on the ground that, following the filing of Machakos HCCA No. E044 of 2025, any application for stay of execution or other interim relief ought to have been made before the appellate court. 16. The 1st Respondent further contended that the present application was an attempt to delay the execution of a lawful decree, maintaining that the Applicants ought to have sought the reliefs sought in Machakos HCCA No. E044 of 2025. 17. The 1st Respondent maintained that the Applicants had not satisfied the conditions for the grant of an order of stay of execution pending appeal and urged the Court to dismiss the application. 18. The Applicants filed written submissions in support of the application while the 1st Respondent elected to rely on her Replying Affidavit and not file written submissions. 19. The trial court’s ruling was delivered on 29th July 2025 by Hon. Daffline Nyaboke, Principal Magistrate, in Kangundo PMCC No. 198 of 2021. 20. In her ruling, the learned trial magistrate observed that the original court file had already been forwarded to the High Court following the filing of an appeal and that the objector proceedings had been filed in the skeleton file. 21. The court agreed with the 1st Respondent's contention that the application ought to have been filed before the appellate court to avoid the possibility of conflicting decisions. 22. Consequently, the objector proceedings were dismissed with no order as to costs. 23. Having considered the application, the replying affidavit, the ruling of the trial court and the Applicants' submissions, the issue that falls for determination is: 24. Whether the Applicants have satisfied the conditions for the grant of an order of stay of execution pending appeal. 25. The principles governing the grant of an order for stay of execution pending appeal are set out under Order 42 Rule 6(2) of the Civil Procedure Rules, which provides that: *2)No order for stay of execution shall be made under subrule (1) unless—* *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* *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. I will now consider whether the Applicants have satisfied the requirements under Order 42 Rule 6(2) of the Civil Procedure Rules. 2. On the issue of delay, the ruling, the subject of this application, was delivered on 29th July 2025, whereas the present application was filed on 30th July 2025, a day later. 3. In the circumstances, I find that the application was filed timeously and without delay. 4. On the second aspect, the Applicants contend that unless a stay is granted, the Respondent is likely to proceed with the attachment and sale of Motor Vehicle Registration No. KDH 360G together with the proclaimed movable goods and business assets, thereby rendering the intended appeal nugatory. 5. The Respondent, on the other hand, maintains that the proclaimed assets belong to the judgment debtor and were lawfully attached in execution of a valid decree. 6. She further contends that the Applicants have not demonstrated any legal basis for staying execution. 7. The Court has consistently held that substantial loss is the cornerstone for the grant of an order of stay pending appeal. 8. For the Applicants to succeed, they must demonstrate, by evidence, that if execution proceeds, the appeal will be rendered nugatory or that it will suffer loss that cannot adequately be remedied if the appeal ultimately succeeds. 9. Substantial loss was explained in the case of James Wangalwa and Another vs Agnes Naliaka Cheseto (2012) eKLR where the court stated as follows: *“...no doubt in law, the fact that the process of execution has been put in motion, or is likely to be put in motion, by itself does not amount to substantial loss. Even where execution has been levied and completed, that is to say, the attached properties have been sold, as is the case here, does not in itself amount to substantial loss under Order 42 Rule 6 of the Civil Procedure Rules. This is because execution is a lawful process. 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….the issue of substantial loss is the cornerstone of both jurisdictions. Substantial loss is what has to be prevented by preserving the status quo because such loss would render the appeal nugatory..”* 1. In the present case, the appeal arises from the dismissal of objector proceedings in which the Applicants claim legal, equitable and beneficial interests in the proclaimed property. 2. The execution sought to be stayed relates to the very property that forms the subject of the appeal. 3. Without expressing any definite view on the merits of the appeal, I am persuaded that should execution proceed before the appeal is heard and determined, there is a real risk that the subject matter of the appeal may be lost, thereby rendering the appeal nugatory. 4. I therefore find that the Applicants have demonstrated the likelihood of suffering substantial loss within the meaning of Order 42 Rule 6(2)(a) of the Civil Procedure Rules. 5. The final requirement under Order 42 Rule 6(2)(b) of the Civil Procedure Rules is that the Applicant must furnish such security as the Court may order for the due performance of the decree. 6. The purpose of security is to balance the competing interests of the parties by safeguarding the Applicant's right of appeal while safeguarding the Respondent's right to enjoy the fruits of a successful judgment. 7. As was held in ***Focin Motorcycle Co. Limited v Ann Wambui Wangui & Another [2018] eKLR***, the requirement for security is mandatory, and the nature and amount of security is a matter for the Court's discretion. 8. In the present application, although the Applicants did not propose any specific form of security, this omission is not, of itself, fatal to the application. 9. The Court retains the discretion to determine the appropriate security that will adequately secure the due performance of the decree should the appeal ultimately fail. 10. In the exercise of that discretion, and bearing in mind the competing interests of the parties, I am satisfied that the ends of justice will be met by granting an order of stay on terms as to security. 11. Consequently, I find that the Applicants have satisfied the requirements for the grant of an order of stay of execution pending appeal under Order 42 Rule 6(2) of the Civil Procedure Rules Accordingly, the Notice of Motion dated 30th July 2025 is allowed on the following terms: 1. There shall be a stay of execution of the warrants of attachment issued in Kangundo PMCC No. E198 of 2021 pending the hearing and determination of the appeal. 2. The Applicants shall furnish to the court a bank guarantee from a reputable commercial bank for due performance of the entire decretal amount within the next (45) days, failing which the order of stay shall automatically lapse without any further steps from the Court. 3. The costs of the application shall abide by the outcome of the appeal. Dated, signed and delivered virtually via Microsoft Teams at Mombasa this 23rd day of July 2026 **Emmanuel Bitta** **Judge of the High Court** In the presence of: Nechesah C/A Muriithi for the Applicants Sichangi for the 2nd Respondent