https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6552

Ramadhani & another v PA (Suing as mother and next friend to JM - minor) (Miscellaneous Application E180 of 2025) [2026] KEHC 6552 (KLR) (Civ) (15 May 2026) (Ruling) Neutral citation: [2026] KEHC 6552 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Law Courts) Civil Miscellaneous Application E180 of 2025 AC Mrima, J May 15, 2026 Between Hassan Hussein Ramadhani 1st Applicant Godana Ibrahim Ali 2nd Applicant and PA (Suing as mother and next friend to JM - minor) Respondent Ruling Background: 1.Prisca Amsolo, the Respondent herein, obtained judgment against Hassan Hussein Ramadhani and Godana Ibrahim Ali the 1st and 2nd Applicants herein respectively, in Nairobi [Milimani]Chief Magistrates Commercial Case No. E5321 of 2022 (hereinafter referred to as ‘the suit’) for a decretal sum of Kshs 806,911.50/- plus costs and interest. 2.A decree was issued and warrants of execution and sale of movable property were subsequently granted to Milan Auctioneers. On 31st July 2025, the Auctioneers proclaimed the 1st Applicant’s motor vehicle, make Toyota Sienta, Registration No. KCQ 053D, valued at approximately Kshs 350,000/-. 3.It was that attachment that prompted the instant application which was heard by way of written submissions. The Application: 4.The Applicants moved this Court through a Notice of Motion dated 26th August 2025 and sought the following orders: -1.Spent.2.Spent3.That this Honourable court be pleased to grant an order for temporary stay of execution ex parte staying execution of the decree and judgment dated 23rd May 2025, warrants of execution and sale of movable property issued to Milan Auctioneers and all consequential orders and or proceedings arising therefrom pending the hearing and determination of the intended appeal.4.That pending the hearing and determination of this application there be an interim stay of execution in terms of prayer three herein above.5.That the auctioneering fees so far incurred be borne by the Respondents herein.6.That this Honourable court issues any other order that it deems fit and just to issue. 5.The application was supported by the affidavit of Hassan Hussein Ramadhani, deposed to on 26th August 2025. It was his case that that they were never served with the Summons to enter appearance or any other Court process. He stated that he only became aware of the suit on 31st July 2025 when the Auctioneers served him with a Warrant of attachment and proclamation. He further contended that if the execution proceeded, he would lose his motor vehicle which was his primary source of livelihood, thereby rendering him destitute and making the intended appeal nugatory. The Submissions: 6.In their written submissions dated 21st November 2025, the Applicants argued that they had met the threshold for stay of execution under Order 42 Rule 6 of the Civil Procedure Rules. They submitted that substantial loss was imminent because the 1st Applicant’s vehicle was slated for auction. They contended that there was no unreasonable delay in filing the application as they acted immediately upon learning of the execution proceedings. 7.To temper their case, the Applicants relied on the case of Shadrack Arap Baiywo -vs- Bodi Bach [1987] eKLR, for the proposition that service must be strictly proved before a Court can grant interlocutory judgment. They further cited the precedent in James Kanyita Nderitu & Another -vs- Marios Philotas Ghikas & Another [2016] eKLR, where the Court held that an irregular default judgment must be set aside as a matter of right. 8.Regarding the principles for extension of time and the factors the Court should consider, the Applicants drew this Court’s attention to the Supreme Court decision in Nicholas Kiptoo arap Korir Salat -vs- IEBC & 7 others [2014] eKLR. In asserting that they ought to be accorded an opportunity to be heard on merit, they referred to the decision in Tree Shade Motors Ltd -vs- D.T. Dobie (1995-1998) KLR, to front the position that if a defendant shows even one bona fide triable issue, the Court should grant leave to defend. 9.Ultimately, the Applicants urged this Court to allow the application as prayed. The Respondent's case: 10The Respondent opposed the application through the Replying Affidavit sworn by Mr. Musili Mbiti, Learned Counsel, on 25th September 2025. The Respondent asserted that the application was premature since the trial Court judgment was entered because the Applicants voluntarily failed to enter an appearance or file a defence. The Respondent posited that that Applicants ought to have made an application in the trial Court to set aside the ex-parte judgment and have their case heard and determined on merit. 11.Further, it was his deposition that an appeal could only arise on the trial Court’s decision disallowing the Applicant’s quest to set aside the ex-parte judgment. In conclusion, it was his case that the draft Memorandum of Appeal has no chance of succeeding since the decision sought to be appealed against is not based on merit due to the Applicants’ failure to participate in the trial suit. The Submissions: 12In her written submissions dated 22nd October 2025, the Respondent argued that the decision to appeal an interlocutory judgment without seeking to set it aside at the trial level was legally flawed. She submitted that under Order 10 Rule 11 of the Civil Procedure (Amendment) Rules, 2020, a party claiming non-service must move the Court that entered the judgment to set it aside ex debito justitiae. 13.The Respondent further reiterated that the Draft Memorandum of Appeal had no chance of success because it challenged a procedural consequence of the Applicants' own negligence. She urged the Court to dismiss the application and direct the Applicants to follow the procedure laid down in Order 10 Rule 11. Analysis: 14.On consideration of the application and the parties’ submissions, the following two main issues arise for determination: -a.The propriety of the application.b.Depending on (a) above, whether the Application satisfies the threshold for stay of execution. 15.This Court will now address the above issues in turn. a. The propriety of the application: 16.The Respondent argued that the Applicants ought to have first exhausted the remedy under Order 10 Rule 11 which provides as follows: -11.Setting aside judgment [Order 10, rule 11]Where judgment has been entered under this Order the Court may set aside or vary such judgment and any consequential decree or order upon such terms as are just. 17.Recently, the Court Appeal in Alfarooq Hospital Limited -vs- Masinde (Civil Appeal E029 of 2022) [2025] KECA 892 (KLR) referred to its earlier decision in James Kanyiita Nderitu & another -vs- Marios Philotas Ghikas & another [2016] KECA 470 (KLR) where Order 10 Rule 11 of the Civil Procedure Rule was discussed as follows;… From the outset, it cannot be gainsaid that a distinction has always existed between a default judgment that is regularly entered and one, which is irregularly entered. In a regular default judgment, the defendant will have been duly served with summons to enter appearance, but for one reason or another, he had failed to enter appearance or to file defence, resulting in default judgment. Such a defendant is entitled, under Order 10 rule 11 of the Civil Procedure Rules, to move the court to set aside the default judgment and to grant him leave to defend the suit. In such a scenario, the court has unfettered discretion in determining whether or not to set aside the default judgment, and will take into account such factors as the reason for the failure of the defendant to file his memorandum of appearance or defence, as the case may be; the length of time that has elapsed since the default judgment was entered; whether the intended defence raises triable issues; the respective prejudice each party is likely to suffer; whether on the whole it is in the interest of justice to set aside the default judgment…. In an irregular default judgment, on the other hand, judgment will have been entered against a defendant who has not been served or properly served with summons to enter appearance. In such a situation, the default judgment is set aside ex debito justitiae, as a matter of right. The Court does not even have to be moved by a party once it comes to its notice that the judgment is irregular; it can set aside the default judgment on its own motion… The reason why such judgment is set aside as of right, and not as a matter of discretion, is because the party against whom it is entered has been condemned without notice of the allegations against him or an opportunity to be heard in response to those allegations. The right to be heard before an adverse decision is taken against a person is fundamental and permeates our entire justice system. 18.Having so pointed out, this Court, however, must state that it is yet to deal with the main appeal where the question of setting aside the judgment will be addressed. What is now before this Court is not an application to set aside the impugned default judgment, but an application for stay under Order 22 Rule 22 of the Civil Procedure Rule. Therefore, the propriety or otherwise of the appeal, in view of the fact that the Applicants did not abide by Order 10 Rule 11, is premature. It is a hurdle to be surmounted by the Applicants substantively at the hearing of the appeal. 19.The foregoing, therefore, brings to the fore the import of Order 22 Rule 22 of the Civil Procedure Rules. The provision provides as follows: -When court may stay execution [Order 22, rule 22](1)The court to which a decree has been sent for execution shall, upon sufficient cause being shown, stay the execution of such decree for a reasonable time to enable the judgment-debtor to apply to the court by which the decree was passed, or to any court having appellate jurisdiction in respect of the decree or the execution thereof, for an order to stay the execution, or for any other order relating to the decree or execution which might have been made by the court of first instance, or appellate court if execution has been issued thereby, or if application for execution has been made thereto.(2)Where the property or person of the judgment-debtor has been seized under an execution, the court which issued the execution may order the restitution of such property or the discharge of such person pending the results of the application.(3)Before making an order to stay execution or for the restitution of property or the discharge of the judgment-debtor the court may require such security from, or impose such conditions upon, the judgment-debtor as it thinks fit. 20.It is, hence, manifestly apparent from the above, both the Court of the first instance and an appellate Court have jurisdiction to entertain an application for stay. As such, in this Court’s assessment, the claim that the application is premature is, respectfully, inaccurate. The Respondent is erroneously imputing the requirements of Order 10 Rule 11 (setting aside of default judgment) for the wrong set of circumstances. 21.In the premise, the issue is answered in the affirmative. For clarity, the application is properly before this Court thereby leading to the consideration of the next issue. b. Whether the application satisfies the threshold for stay of execution: 22.The power to grant stay of execution is governed by Order 42, Rule 6 of the Civil Procedure Rules which provides that an Applicant must satisfy the following conjunctive requirements for the grant of stay of execution pending appeal; that is to say: -i.The application has been made without unreasonable delay;ii.Substantial loss may result to the Applicant unless the order is made; andiii.That the Applicant is willing to furnish such security as the court order for the due performance of such decree. 23.It is not lost that the purpose of stay pending appeal as held in the case of RWW vs. EKW [2019] eKLR, is as follows: -… 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. 24In Civil Application Nai 6 of 1979, Butt -vs- Rent Restriction Tribunal [1979] eKLR, the Court of Appeal crystallized the conditions for grant of stay as hereunder;a.The power of the court to grant or refuse an application for a stay of execution is discretionary; and the discretion should be exercised in such a way as not to prevent an appeal.b.Secondly, 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 the appeal court reverse the judge’s discretion.c.Thirdly, 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.d.Finally, the Court in exercising its discretion whether to grant or refuse an application for stay will consider the special circumstances and its unique requirements. 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 of costs as ordered will cause the order for stay of execution to lapse. 25.To this Court, the grant of an order staying execution pending an appeal under Order 42 Rule 6 is premised on an existing or an intended appeal. In this case, the Applicants are yet to file any appeal and to that end they have annexed a draft copy of a Memorandum of Appeal seeking to challenge the judgment entered on 23rd May 2025 which judgment was rendered around one year ago. The instant application, however, does not seek any extension of time to lodge the appeal. As such, the stay orders cannot be granted in a vacuum. 26.The upshot is that the application is a non-starter and should fail. Disposition: 27.Drawing from the foregoing, the following orders hereby issue: -(a)The Notice of Motion dated 26th August 2025 is hereby struck out accordingly.(b)The Applicants to bear the costs of the application.(c)This file is marked as closed.It is so ordered. DELIVERED, DATED AND SIGNED AT NAIROBI THIS 15TH DAY OF MAY,2026.A.C. MRIMAJUDGERuling virtually delivered in the presence of:Mr. Orira, Learned Counsel for the Respondent.Mr. Orimba, Learned Counsel for the Applicant.Amina – Court Assistant.