https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9998

 **REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT BUSIA** **HIGH COURT CIVIL APPEAL NO. E020 OF 2026** **PUNJAB TRADING LIMITED............................APPLICANT/ APPELLANT** **VERSUS** **VINCENT JUMA HALUSA……………………….………........RESPONDENT** **RULING** 1. Before me is a notice of motion Application dated 15th April 2026 filed pursuant to Order 42 Rule 6 of the Civil Procedure Rules, Sections 1A, 1B and 3A of the Civil Procedure Act, urging for the following relief(s); 2. **SPENT** 3. **That, pending the hearing and final determination of this Application, there be Temporary Stay of Execution of Ruling of the Honorable Court made on the 19th March 2026 in CMCC NO. E105 OF 2025** 4. **That, pending the Hearing and final Determination of this Application, there be issued a Temporary Stay of the entire proceedings and of the Ruling and order of the Honorable Court made on the 19th March 2026 in CMCC NO. E105 OF 2025.** 5. **That, pending the hearing and final determination of the APPEAL there be an order of Stay of execution, of the entire proceedings, Ruling and order** 6. **That pending the hearing and final determination of the APPEAL there be an order of Stay of proceedings and of any consequential actions as may flow or emanate from the Ruling of the Honorable Court made on the 19 March 2026 in CMCC NO. E105 OF 2025.** 7. The Application is premised on the following grounds: 8. ***The Applicant has already lodged a Notice of Appeal dated 21st April 2026 signifying his intention to appeal against the whole judgment.*** 9. ***The intended appeal is arguable and raises serious points of law and fact with high chances of success.*** 10. ***THAT the Respondent is in a position to proceed with execution of the decree,*** 11. ***THAT the Applicant has never contracted nor benefited from the alleged loan forming the basis of his suit in the lower court, and therefore reiterates the same in its entirety including initiating adverse credit reference reporting against the Applicant.*** 12. ***THAT there exists a real and imminent risk that the Applicant may be wrongfully listed with the Credit Reference Bureau (CRB) on account of a loan unknown to him, thereby occasioning grave injustice*** 13. ***Unless stay is granted, the Respondent may proceed with execution, thereby rendering the intended appeal nugatory.*** 14. ***The Applicant stands to suffer substantial loss if execution proceeds before the appeal is heard and determined.*** 15. ***This application has been made without unreasonable delay.*** 16. ***It is in the interests of justice, fairness and equity that the orders sought be granted.*** 17. The Application was opposed and proceeded by way of filed written submissions **Applicants Case** and all other enabling Provisions of Law. Vide this Application the appellant seeks the following prayers. 1. The Applicant submits that, that the trial Court in its decision failed to consider that the Applicant had fully complied with the Orders and or directions issued on the 27 Day of 2025 specifically prayer 1 of the said order as read together with the totality of sister orders made on the same day albeit in alternative the Respondent is currently enjoying full utility and possession of the subject Motor vehicle, the Respondent did not demonstrate to the Court how the Applicant disobeyed a valid Court Order to warrant issuance of the Orders sought in his Application, the Trial Court failed to consider that by allowing the Respondents Application and by granting orders sought at an early stage would have effectively meant the court had disposed off the suit without the other party being heard and got suit determined on merit and the applicant shall consequently have been exposed to suffer irreparable loss and prejudice. 2. That, the Respondents Affidavit sworn on the 20th April 2026 is not merited, he has failed to demonstrate to the Court the prejudice he is going to suffer if the Applicants are granted orders sought, he has also failed to consider that if orders granted by the Courts ruling are executed the Applicants directors risk being unlawfully, unjustifiably, and or unjustly subjected to a prison term for no fault on their part but purely on account of either judicial over-reach or misinterpretation and subsequent misapplication of earlier orders, and their right of freedom and liberty shall be arbitrarily curtailed, it is a cardinal principle of law that its safer and better to set a criminal free than to punish and curtail the freed of an innocent man. 3. From the record and based on the circumstances obtaining herein, the Applicant has demonstrated that it shall suffer serious prejudice/substantial loss if Orders sought are not granted. 4. Reliance is placed upon the case of **ZUBHEIR ABDALLA VERSUS-YUSUF JUMA CIVIL APPEAL NO. 48 OF 2027**. Where, A MABEA J. stated that *"As regard to Orders of Stay sought, the strict principle for grant of stay under Order 42 of the civil procedure Rules will not apply, the court in my view considers whether, there is real danger of execution, whether the Application has been made without undue delay, the nature of Order sought to be executed, and whether the situation can be reversed if the execution is undertaken, and the cost affecting the and the extent of loss and damages the Applicant may suffer as a result of execution. One cannot reverse nor quantify the effects of a prison term on an innocent individual.* 1. That the Applicant has shown that it has a merited Application and Appeal with high chances of success and as such we urge you to allow Notice of Motion Application dated 15th April 2026 as prayed **The Respondent’s Case** 1. The Respondent filed a replying affidavit sworn on 20/4/2025 in opposition to the application citing the failure by the applicant to meet the threshold for granting such orders. 2. The Respondent proposes the following (2) two issues for determination; 1. **Whether the applicant should be granted orders of stay** 2. **Who should bear costs of the application** 3. The Respondent submits that, there are no orders capable of stay as what was ordered was a notice to the applicants to show cause why they should not be committed to civil jail. Essentially the applicants herein are trying to stay their opportunity to explain why they have not complied with orders. 4. The Respondent submits that, if the applicant is not interested in giving explanation then the effect should be the court proceeding and committing them to civil jail. 5. The Respondent submits that, that the appeal herein and the application herein do not concern the interpretation of the impugned orders. 6. That the applicant never appealed those orders or sought for their interpretation and thus was bound to comply. In In the case of **MN v TAN & another [2015] eKLR** a case which is on all fours with the present case the court held as follows:- *" A valid court order has to be obeyed or complied with regardless of how aggrieved a party is about it. The order has the force of law. It is not a mere wish or proposition. Disobedience or non-compliance with it attracts severe consequences. It would appear to me that the appellant believes that the orders of 30th July 2013 are not valid, and has explained why he has chosen to disregard or disobey them. Yet he is bound to obey the orders for as long as they are still in force. He has no choice, he cannot decide when and how to obey or comply with them*. 1. The same principle was held in **PSA v PNG [2024] KEHC 2463 (KLR), Econet Wireless Kenya Ltd vs. Minister for Information & Communication of Kenya & Another [2005] 1 KLR 828, Refrigerator & Kitchen Utensils Ltd. vs. Gulabehand Popatlal Shah & Others Civil Application No. Nai. 39 of 1990 Central Bank of Kenya & Another vs. Ratilal Automobiles Limited & Others Civil Application No. Nai. 247 of 2006 among others. In Automobiles Limited & Others Civil Application No. Nai. 247 of 2006 among others. In Danson Mwangi Kiawano v County Secretary, Nairobi [2016] KEHC 3295 (KLR)** G.V Odunga J as he then was held that, *"It is trite that Court orders are not made in vain and are meant to be complied with. If for any reason a party has difficulty in complying with court orders the only option is to approach the court and explain the difficulties faced by the need to comply with the order. Once a Court order is made in a suit the same is valid unless set aside on review or on appeal."* 1. The Respondent submits that, the applicant failed to seek review, appeal or interpretation from the court and as it stands the orders are in place and ought to be complied with. Therefore, the applicants cannot base this application on the interpretation of the orders it feel aggrieved with. 2. That the ruling was delivered in presence of the applicant. They never sought clarification or interpretation of the said orders. The question that remains is whether there was compliance which the court has found there was none. 3. The Respondent submits that, the orders were express and if he respondents needed clarity they would have moved the court. They cannot invite the court to review or interpret the orders afresh. They can only comply. 4. The applicants have been granted an opportunity to explain why they did not comply an opportunity which they are squandering through this application. 5. That, in the course of proceedings and in bid to mislead the court, the applicants have purported not to have attached the motor vehicle. The true position is that the motor vehicle remains in their possession from the time they sent there mechanic who bought the slim engine, tried fixing the motor vehicle and when he failed left it there in a garage to date. 6. That it is clear that the respondent has appealed against the ruling finding them in contempt and requiring them to show cause why they should not be committed to civil jail. There is no order committing the applicant to civil jail and as such no substantial loss will be incurred by the applicant. 7. The Respondent submits that, the applicant purports to predetermine the decision of the court as sending the directors to prison and that in such proceedings the court has discretion to orders for payment of fines, conditional discharge and or imprisonment. Therefore, the court should not determine the application on whims, innuendoes, propaganda and apprehensions. 8. That even if they were to assume that the applicant is appealing against the orders leading contempt proceedings, there is no irreparable loss they will suffer as the same can be quantified in monetary terms. 9. That, whereas the applicant purports to aver that they will incur substantial loss, the respondent deposited all the sums that had been ordered in court and the applicant are at liberty to collect the same upon compliance with the orders. 10. The Respondent submits that, the applicants have not shown any willingness to deposit security in court for performance of the orders sought. We submit that the suitable security for the performance of the orders herein is depositing another working unit of motor vehicle MAZDA CX-5 make in court. 11. The Respondent submits that, stay of proceedings is such a draconian measure that has to be exercised sparingly. We must point out that the applicant has not submitted on this issue or explained why they think it is important that the proceedings be stayed. 12. Given the applicants abandoned this prayer, then the Respondent urges the court to disallow the said prayers. 13. The Respondent pray that the court does find the application without merit and dismiss the same with costs **Analysis and Determination** 1. I have carefully considered the application before me alongside with the submissions made, authorities cited and the relevant law. The Applicant seeks to stay the orders issued by the trial court on 25th August 2023. 2. The principles guiding the Court in granting stay are well articulated in the locus classicus case of [**Butt v Rent Restriction Tribunal**](https://kenyalaw.org/akn/ke/judgment/keca/1979/22)**(1982) KLR 417** where the Court of Appeal held that *“1.The power of the court to grant or refuse an application for a stay of execution is a discretionary power. The discretion should be exercised in such a way as not to prevent an appeal.2.The general principle in granting or refusing a stay is; if there is no other overwhelming hindrance, a stay must be granted so that an appeal may not be rendered nugatory should that appeal court reverse the judge’s discretion.3.A judge should not refuse a stay if there are good grounds for granting it merely because in his opinion, a better remedy may become available to the applicant at the end of the proceedings.4.The court in exercising its discretion whether to grant (or) refuse an application for stay will consider the special circumstances of the case and unique requirements. The special circumstances in this case were that there was a large amount of rent in dispute and the appellant had an undoubted right of appeal.* *6.The court in exercising its powers under Order XLI rule 4(2) (b) of the Civil Procedure Rules, can order security upon application by either party or on its own motion. Failure to put security for costs as ordered will cause the order for stay of execution to lapse.”* 1. These principles were summarised in **RWW v EKW [2019] eKLR**, where the Court considered the purpose of a stay of execution order pending appeal, in the following words: *“The purpose of an application for stay of execution pending an appeal is to preserve the subject matter in dispute so that the rights of the appellant who is exercising the undoubted right of appeal are safeguarded and the appeal if successful, is not rendered nugatory. However, in doing so, the court should weigh this right against the success of a litigant who should not be deprived of the fruits of his/her judgment. The court is also called upon to ensure that no party suffers prejudice that cannot be compensated by an award of costs. Indeed to grant or refuse an application for stay of execution pending appeal is discretionary. The Court when granting the stay however, must balance the interests of the Appellant with those of the Respondent.”* 1. Accordingly, the Memorandum of Appeal as envisaged intends to canvass the lawfulness and validity of the notice to show cause. It is at that stage the trial Court inquires as to whether contempt of court has been committed. I hold a strong view that when it comes to interlocutory appeals revisionary jurisdiction would be particularly the approach to take in disposal of such issues in order to give effect to the overriding objective under section 1(A) and 1(B) of the Civil Procedure Act. 2. In the case of **William Odhiambo Ramogi & 2 Others v the Honourable Attorney General & 3 Others [2019] eKLR,** a 5-judge Bench of the High Court, after scanning through various decisions on the question of stay of proceedings, laid down the principles our Courts have established for the grant of stay of proceedings pending the hearing and determination of an appeal over an interlocutory application to a higher Court. See: **Kenya Shell Limited v Benjamin Karuga Kibiru & anorther [1986] eKLR; Global Tours & Travels Limited (Nairobi HC Winding Up Cause No. 43 of 2000); David Morton Silverstein v Atsango Chesoni [2002] eKLR** where the following six principles were laid down by the Court: * 1. **First, there must be an appeal pending before the higher Court;** 2. **Second, where such stay is sought in the Court hearing the case as opposed to the higher Court to which the Appeal has been filed and there is no express provision of the law allowing for such an application, the Applicant should explain why the stay has not been sought in the higher Court. This is because, due to the potential of an application for stay of proceedings to inordinately delay trial, there is a policy in favour of applications for stay being handled in the Court to which an appeal is preferred because such a Court is familiar with its docket and is therefore in a position to calibrate any order it gives accordingly;** 3. **Third, the Applicant must demonstrate that the appeal raises substantial questions to be determined or is otherwise arguable;** 4. **Fourth, the Applicant must demonstrate that the Appeal would be rendered nugatory if the stay of proceedings is not granted;** 5. **Fifth, the Applicant must demonstrate that there are exceptional circumstances which make the stay of proceedings warranted as opposed to having the case concluded and all arising grievances taken up on a single appeal; and** 6. **Sixth, the Applicant must demonstrate that the application for stay was filled expeditiously and without delay**. 3. As held in the case of **Samuel M. N. Mweru & Others v. The National Land Commission & 2 Others [2020]eKLR** Mativo J, as he then was ) at paragraph *“….. the court will not condone deliberate disobedience of its orders and will not shy away from its responsibility to deal with proved contemnors. It is the plain and unqualified 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. The uncompromising nature of this obligation is shown by the fact that it extends even to cases where the person affected by an order believes it to be irregular or void…”* 1. Disobedience of court orders violates the dignity, repute and authority of the court. An application for contempt and committal to civil jail though civil in nature, invokes criminal sanctions. The court will grant enforcement because of the broader public interest in obedience to its orders as it threatens its authority and detracts from the rule of law. 2. The test for contempt of a court order is the deliberate and intentional violation of the courts orders and in this instance the Court is yet to undertake the inquiry hence the notice to show cause issued. 3. Further a perusal of the appellants supporting affidavit it is the Applicants case that the Alternative Order subject to the instant proceeding was made in error. The Applicant however never contested the Ruling dated 27th June 2025 that gave rise to the Alternative relief the subject of the alleged contempt and no effort was made in the subordinate court to review an otherwise erroneous order. 4. The Applicant only contests the issuance of a notice to show cause and thus seeks to stop all proceedings pending the disposal of the Appeal cannot locate any exceptional circumstances which make the stay of proceedings warranted as opposed to having the case concluded and all arising grievances taken up on a single appeal. 5. This court is alive to the subsisting jurisdiction to punish for contempt not committed on the face of court subsisting in the high court and that an issuance by a court of a notice to show cause is a procedural direction in inquiring as to whether an act of contempt is committed such that rather than prefer an Appeal the Applicant ought to show cause why it is not in contempt of court and why invocation of the alternative relief shall amount to a double jeopardy scenario. 6. The contempt can be established by finding that:- 7. The terms of the order were clear and unambiguous; were binding upon the appellant; 8. The appellant had knowledge of the terms of the order 9. The appellant acted in breach of the terms, and the appellants conduct was deliberate 10. To that end therefore it is apparent that the notice to show cause as issued seeks to invite the Applicant to demonstrate otherwise than the contempt being established by the court with an outcome the Applicant can contest its ruling afresh. 11. It would have been more prudent for the Applicant to move the court once a ruling is delivered finding him in contempt and prescribing punishment. 12. This court is of the view that the subsisting proceedings between the parties are diversionary and are off-track away from the substratum common dispute and it shall not be in the interests of justice to stop the entire proceedings on basis of an interlocutory Appeal on issuance of a notice to show cause. 13. With regards to the Memorandum of Appeal the Applicant 14. I am unable to find merit in the Application to exercise my discretion and stay of proceedings noting that the matter is scheduled to continue with the inquiry on the 1st October 2026. 15. This court finds that, it is unable to exercise its discretion to stay the primary proceedings and that the Appellant shall be expected to cause and set-down his interlocutory Appeal for admission, directions and hearing within the next 60 days. 16. The Application dated 15th April 2026 is without merit and the same is dismissed with costs. 17. Mention for directions on the Appeal shall be on the 28th September 2026. It is so ordered **Signed, Dated and Delivered at Busia** **on this 7th Day of July 2026*.*** **\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_** **Mohochi S. M.** **Presiding Judge**