https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7225

Sikulu t/a Handshake Big Auctioneers v Sumba & 4 others (Civil Appeal E002 of 2026) [2026] KEHC 7225 (KLR) (26 May 2026) (Ruling) Neutral citation: [2026] KEHC 7225 (KLR) Republic of Kenya In the High Court at Kakamega Civil Appeal E002 of 2026 S Mbungi, J May 26, 2026 Between Joan N. Sikulu t/a Handshake Big Auctioneers Appellant and Evans Sumba 1st Respondent Samuel Ombayo Sumba 2nd Respondent Msamaria Mwema Shuttle 3rd Respondent Iwaki Trading Limited 4th Respondent Julia Nekesa Mukhano Sakwa 5th Respondent Ruling 1.The Applicant/ Appellant filed a Notice of Motion application under section 3A of the civil Procedure Act, Order 42 Rule 6(2), order 51 Rule 1 of the Civil procedure rules 2010 seeking for the following orders;a.That this application be certified as urgent and be heard ex-part in the first instance.(spent)b.That there be a temporary stay of execution of the ruling dated 30th December 2025 and all consequential orders arising therefrom in Kakamega Small Claims No. SCCC E 102 E103, E104, E105, E106 and E107 all of 2025 pending hearing and determination of the application inter-parties.c.That there be a permanent stay of execution of the ruling dated 30th December 2025 and all consequential orders arising therefrom in Kakamega Small Claims No. SCCC E 102 E103, E104, E105, E106 and E107 all of 2025 pending hearing and determination of the appeal herein.d.That the costs of the application be provided for. 2.The application is supported by the affidavit of the Applicant sworn on 8th January 2026 where she avers that she is a licensed auctioneer trading in the name and style of Handshake Big Auctioneers and was greatly dissatisfied with the ruling dated 30th December, 2025 and has preferred an appeal against the appeal on the same. 3.She stated that the ruling dated 30th December 2025 and all the consequential orders arising from Kakamega small claims No SCCC E102, E103, E104, E105 E106 and E107 OF 2025 ought to be stayed so as to allow her to prove to the court that the motor vehicle reg. no KDS 477 F Toyota Hiace was the suit property involved in the accident and the 2nd Respondent was the beneficial owner at the time of the accident that brought the existence of the suit. 4.She contends that the said motor vehicle was legally attached in execution of the decree and that all the due process was followed that is the warrant was issued to her, she served the proclamation notice, attaching, advertising the same on star newspaper and subsequently sold by public auction and the proceeds of sale remitted to the advocates for the decree holder. 5.According to the Applicant, the trial court failed to consider her response and the evidence on record and as such the appeal raised weighty issues of law and facts that ought to be determined before the subject motor vehicle is restored and further that her case has a high chance of success and the same would be rendered nugatory unless the stay of execution is granted. 6.In reply to the application, Evans Sumba filed a replying affidavit dated 26th January 2026 where he averred that on or about 10th December 2025 he entered into a hire purchase Agreement with Azan Motors limited for the acquisition of Motor Vehicle Registration No. KDS 477F- Toyota Hiace at a consideration of Kshs. 4,900,000/= with Iwaki Trading Limited as the financier 7.He maintained that in accordance to the HP agreement the legal ownership and legal ownership of the said motor vehicle remained with the financier Iwaki Trading Limited who is the 4th respondent until full payment of the instalment which he had not yet completed. 8.He claimed that despite the motor vehicle being owned by the 4th Respondent the vehicle was wrongfully attached and a proclamation notice issued to EDWIN, carried way and purportedly sold on 31st October,2025 at Kshs. 900,000/= in an execution decree issued in Kakamega SCC E102, E103, E104, E105& E106 of 2025 which he claimed neither he nor the financier party to the suit thereby occasioning him immense financial prejudice. 9.He claimed that no judgment was issued against himself or the 4th respondent hence there was no basis in attaching the suit vehicle as the 2nd Respondent was found to be 100% liable and that the auctioneers proceeded to attach the suit vehicle without conducting an NTSA search which would have disclosed the true registered owner. 10.He stated that he only became aware of the attachment and alleged sale on 17th November 2025 when his friend informed him that his vehicle was being sold. she blamed the auctioneer for not being able to differentiate between the beneficial and legal ownership and as such the judgment would be against the financier who unfortunately was not party to the suit. 11.He further stated that the applicant failed to demonstrate any substantial loss that would suffer if the stay orders was not granted and further that the stay will occasion him substantial loss as the Motor vehicle is wasting and depreciating asset and that the purported purchaser will continue using the vehicle hence diminishing its value and further that he will continue servicing the hire purchase obligation without the possession. 12.He prays that the temporary stay orders be vacated and the motor vehicle be restored to him as he is still surviving the hire purchase or be placed in the financier’s yard for safe custody pending the hearing of the appeal. 13.He avers that the stay of execution application is frivolous and abuse of the court’s process and ought to be dismissed. 14.The court directed that the application be canvassed by way of written submissions. 15.In her submissions dated 8th March 2026, the Applicant raised one issue for determination being whether they had met the threshold to grant the orders sought. 16.She relied on order 40 rule 6 (2) and quoted the case of Tassam Logistics Ltd vs. David Macharia & another (2018) KEHC 6400(KLR). On the issue of substantial loss, they aver that the motor vehicle KDS 477 F Toyota Hiace which they proclaimed had been sold by way of public auction on 31st October 2025 and the proceeds from the sale remitted to instructing advocate for the decree holder in execution of the decree and warrants of attachment. 17.She claimed that it was established that the said motor vehicle was the one that caused the accident and that the 2nd respondent was the judgment debtor and the beneficial owner and policy holder as per the insurance policy and police abstract and that the objector only came on record after the said motor vehicle was proclaimed and sold and the proceeds remitted to the decree holder. 18.She opposed the ruling delivered on 30th December 2025 issued in favour of the 1st respondent for the restoration of the motor vehicle Reg. No. KDS 477 F Toyota Hiace which at the time of the ruling not in actual possession as the same had been sold by public auction. in support of his case he quoted the case of G.N Muema P/A (sic) Mt. view Maternity and Nursing Home vs. Miriam Maalim Bishar & another (2018) KEHC 8780 (KLR). 19.She avers that the appeal has a high chance of success and is apprehensive that she will suffer substantially if the ruling and subsequent orders issued by the trial court on 30th December 2025 are not stayed pending the hearing and determination of the appeal. On the issue of security, she relied on the case of Okerio (suing as personal representative in the estate of Kelvin Nyangau Onduko (deceased) vs. Kassam Hauliers. 20.She stated that the appeal was filed without unreasonable delay as the ruling was delivered on 30th December 2025 and the application was filed on 8th January 2025. 21.She claimed that she had met the threshold to be granted stay of execution and prays that the application be allowed as the appeal will be rendered nugatory 22.1st respondent’s submission dated 23rd April 2026 raised one issue for determination being whether the applicant had met the threshold for stay of execution as stated under order 42 Rule 6 of the Civil Procedure Rules. 23.On the substantial loss, they claim that the applicant expressed their dissatisfaction with the ruling without stating the loss they would suffer and quoted the case of Peter Kasoma Mutisy & Anor vs. Michaela N.M Mutisya (2014) KEHC. 24.He alludes that he on the other hand will suffer prejudice as he is continuing servicing the hire purchase loan for a car that he does not possess. On the issue of security, they opined that the Applicants had not proposed any security as a mandatory requirement to be granted the stay orders and avers that timely filing of the application alone does not grant them the stay orders. 25.In conclusion, they contend that the application be dismissed with costs for failure to meet the required threshold. The same sentiments were raised by the 4th Respondents in their submissions dated 6th May 2026 who claimed that the applicant failed to meet the threshold for granting a stay of execution and pray that the court dismiss the application with costs. Analysis and Determination 26.This court has carefully considered the Notice of Motion application dated 8th January 2026, the supporting affidavit, the replying affidavit of the Respondents, the annexures, and the written submissions filed by all the parties. 27.The main issue for determination in this application is whether the Applicant has satisfied the conditions for grant of stay of execution pending appeal as provided under Order 42 Rule 6 of the Civil Procedure Rules, 2010. 28.Order 42 Rule 6(2) of the Civil Procedure Rules provides:“No order for stay of execution shall be made under sub-rule1.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;2.and (b) such security as the Court orders for the due performance of such decree or order as may ultimately be binding upon the applicant has been given by the applicant.” 29.In Machira t/a Machira & Co Advocates v East African Standard [2002] KEHC 1167 (KLR) the Court of Appeal stated that an Applicant must demonstrate an arguable appeal, substantial loss, absence of unreasonable delay, and willingness to furnish security as ordered by the Court. 30.In the current application, the Applicant has raised weighty issues on appeal, including the distinction between legal ownership under a hire purchase agreement and beneficial ownership interest of the judgment debtor at the time of the accident, as well as the regularity of the attachment and public auction process. 31.In my considered view, these points are arguable and disclose a prima facie case that is not frivolous and this court needs to consider on appeal. 32.The first issue to be considered is on substantial loss, the Court in Shell Kenya Limited v Kibiru & another [1986] KLR 410 (per Platt JA) explained the principle as follows:“Substantial loss in its various forms is the cornerstone of both jurisdictions for granting stay. That is what has to be prevented... It is usually a good rule to see if ... there was no evidence of substantial loss to the applicant, either in this matter of paying the damages awarded which would cause difficulty to the applicant itself, or because it would lose its money, if payment was made, since the Respondents would be unable to repay the decretal sum plus costs...” 33.In the present case, the restoration of the motor vehicle while the appeal is pending and potentially ongoing would in my view expose the Applicant to potential liability having already remitted the auction proceeds to the decree holders counsel. Conversely, the 1st Respondent continues to service the hire purchase without possession is still unfair. Both parties continue to face real prejudice. The Court must therefore balance these competing interests in the interest of justice. 34.On the issue of filing the case without undue delay, I note that the application was filed on 8th January 2026, shortly after the ruling of 30th December 2025. Hence there was no unreasonable delay. 35.On the issue of security, the Applicant has not provided any proposed sum as a form of security however this court has discretion under Order 42 Rule 6 to impose such terms as are just and reasonable. It is not always mandatory to order the entire decretal sum. 36.In certain cases, such as Muriithi v Mburia (Civil Appeal 5 of 2019) [2023] KEHC 17680 (KLR), courts have directed deposit of half the decretal sum as adequate security. In the above case the Court ordered deposit of half the decretal sum in a joint interest-earning account as a condition for stay. 37.Considering the peculiar circumstances being that the subject matter is a depreciating motor vehicle and proceeds have already been remitted I am satisfied that the Applicant has met the threshold for conditional stay. Granting the orders on terms will preserve the subject matter of the appeal while adequately protecting the Respondents. 38.In the result, and in the interest of justice, I make the following orders:a)The Application dated 8th January 2026 is allowed in terms of prayers (a) and (b) on condition that the Applicant deposits half of the decretal sum into a joint interest-earning account in the names of the Advocates for the Applicant and the 1st Respondent within fourteen (14) days from the date of this Ruling.b)There shall be a temporary stay of execution of the ruling dated 30th December 2025 and all consequential orders arising from Kakamega Small Claims Court Cases Nos. SCCC E102, E103, E104, E105, E106 and E107 of 2025 pending the hearing and determination of this Appeal.c)In default of compliance with the security condition, the stay orders shall automatically lapse.d)The costs of this application shall abide the outcome of the Appeal.e)Mention for directions on main appeal on 28.11.2026.f)Right of Appeal 30 days explained. DATED, SIGNED AND DELIVERED IN OPEN COURT AT KAKAMEGA 26TH DAY OF MAY, 2026.S.MBUNGIJUDGEIn the Presence of:-CA: Velma/ZildaMr Songa for the Appellant present.