https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12691

Transmax Printing Technology Limited (Formerly Knwon as Real Printing Technology Limited) v Graphic Vision Limited (Small Claims Appeal E001 of 2025) [2026] KEHC 12691 (KLR) (7 August 2026) (Ruling) Neutral citation: [2026] KEHC 12691 (KLR) Republic of Kenya In the High Court at Mombasa Small Claims Appeal E001 of 2025 J Ngaah, J August 7, 2026 Between Transmax Printing Technology Limited (Formerly Knwon as Real Printing Technology Limited) Appellant and Graphic Vision Limited Respondent Ruling 1.The application before the court is the appellant/applicant’s Notice of Motion dated 26th June 2025, expressed to be brought under sections 1A, 1B and 3A of the Civil Procedure Act and Order 42 rule 6 and Order 51 rule 1 of the Civil Procedure Rules. Prayer 1 has been overtaken by events, the application having already come before the court and the respondent having been served and having responded. What remains for determination are prayers 2 and 3, by which the applicant seeks a stay of execution of the judgment delivered on 27th May 2025 by Hon. J. W. Mwangi in Mombasa SCCCOMM No. E198 of 2025, and of all consequential orders, pending the hearing and determination first of this application and then of the appeal; together with prayer 4 for the costs of the application. 2.The motion is premised on the grounds set out on its face and is supported by the affidavit of Elizabeth Kambua Syokau, described as the applicant’s sales representative, sworn on 26th June 2025. It is opposed by grounds of opposition dated 10th July 2025. Both sides filed written submissions, those of the applicant dated 29th September 2025 and those of the respondent dated 16th November 2025, all of which I have read and considered. Background 3.The dispute has its origin in the Small Claims Court. By its claim in Mombasa SCCCOMM No. E198 of 2025 the respondent, Graphic Vision Limited, sought from the applicant a refund of Kshs. 550,000/=, being the purchase price it had paid for an Extreme BK 1700 large format printing machine bought from the applicant. On 27th May 2025 the trial court entered judgment in favour of the respondent. According to the record before me, the impugned judgment itself being said not yet to have been uploaded onto the court’s electronic system, the effect of that judgment was to direct the applicant to refund the purchase price against the return of the machine. 4.Aggrieved by that outcome, the applicant lodged the present appeal by a memorandum of appeal dated 24th June 2025. Its eight grounds may be compressed into the complaint that the trial magistrate failed to take account of a series of matters said to have been admitted by the respondent, that the machine was delivered in good and working condition; that the respondent retained it for some fifteen days to satisfy itself of its functionality before executing the sale agreement; that the applicant thereafter serviced it free of charge for about ten months; that the respondent continued to purchase consumables specific to the machine even after suit; and that a balance of Kshs. 150,000/= on the price remained outstanding, and that the court ignored the terms of the sale agreement and misapplied section 13(3) of the Sale of Goods Act. The trial court granted a stay of thirty days, which has since lapsed; hence this application. The applicant’s case 5.The applicant’s position, distilled from its affidavit and submissions, is that the appeal is meritorious with high prospects of success; that with the trial court’s thirty-day stay having lapsed it now stands exposed to imminent execution; and that if the respondent executes, the appeal will be rendered nugatory and its substratum lost. It contends that it would be prejudicial and unjust to compel it to refund the full purchase price while the respondent retains, and continues to use for gain, a machine that is all the while being worn down; that reversing such a situation, should the appeal succeed, would be all but impossible; and that the balance of convenience therefore favours preserving the status quo pending the appeal. The respondent’s case 6.The respondent resists the application on essentially five grounds. First, that a stay of execution is an extraordinary remedy which the applicant has not earned, substantial loss not having been substantiated by any affidavit evidence; it relies in this regard on Charity Muthoki Mulei v William Mutisya Muindi [2009] KEHC 790 (KLR) and on National Industrial Credit Bank Ltd v Aquinas Francis Wasike & another[2006] KECA 333 (KLR). Secondly, that the appeal is not arguable, the grounds amounting to no more than disagreement with findings properly reached, for which it invokes Stanley Kang’ethe Kinyanjui v Tony Ketter & 5 others [2013] eKLR. Thirdly, that the application is frivolous, vexatious and an abuse of the process of the court, calculated only to delay enforcement of a valid judgment. Fourthly, that the balance of convenience lies with it, the decretal sum remaining unpaid and justice delayed. And fifthly, in the alternative, that should a stay be granted the applicant ought to be directed to deposit the entire decretal sum in court or in a joint interest-earning account. Analysis and determination 7.I have considered the motion, the supporting affidavit, the grounds of opposition and the competing submissions. The question for decision is a narrow one: whether the applicant has made out a case for a stay of execution of the trial court’s judgment pending the hearing of its appeal. 8.Before turning to that question, it is necessary to identify the correct test, for the parties’ submissions blur two distinct jurisdictions. Both sides argue the matter in the language of an “arguable appeal” and an appeal “rendered nugatory”. But those are the twin considerations that govern an application for stay made to the Court of Appeal under rule 5(2)(b) of that court’s rules, as explained in Stanley Kang’ethe Kinyanjui v Tony Ketter & 5 others (above). This is not such an application. It is an application to the High Court for a stay of execution pending appeal, and it is governed by Order 42 rule 6 of the Civil Procedure Rules, sub-rule (2) of which provides: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. 9.The conditions are three, and they are conjunctive: substantial loss, absence of unreasonable delay, and security for the due performance of the decree. The arguability of the appeal is not, strictly, among them. The merits of the appeal are for the hearing of the appeal, and a court seised of a stay application must be careful neither to stray into that territory nor to prejudge it. I approach the application under the three conditions, mindful throughout of the overriding objective in sections 1A and 1B of the Act, and of the settled principle that the discretion to stay, though wide, is to be exercised judicially (see Butt v Rent Restriction Tribunal [1982] KLR 417). (a) Whether substantial loss may result 10.Substantial loss is, as the respondent correctly submits, the cornerstone of a stay. The classic statement remains that of the Court of Appeal in Kenya Shell Ltd v Kibiru [1986] KLR 410, to the effect that it is the substantial loss which an applicant stands to suffer, in one form or another, that furnishes the real justification for a stay; for if no such loss is shown there is nothing to protect, and no reason to deny the successful party the fruits of the judgment. 11.Where the decree sought to be stayed is a money decree, the authorities are consistent that the mere fact of having to pay, or the inconvenience of paying, does not by itself amount to substantial loss. The applicant must go further and show, by evidence, that if the sum is paid over and the appeal later succeeds it will be unable to recover it, ordinarily because the decree-holder lacks the means to refund. That is the effect of National Industrial Credit Bank Ltd v Aquinas Francis Wasike & another[2006] KECA 333 (KLR), on which the respondent relies, and of a consistent line of authority. 12.Judged by that yardstick, the applicant’s evidence is wanting. The supporting affidavit asserts imminent execution and prejudice in general terms, but says nothing of the respondent’s financial standing, and nothing from which I could find that Kshs. 550,000/=, once paid, would be irrecoverable. On the affidavit alone, substantial loss of the ordinary kind is not established. 13.But that does not conclude the matter, for this is not an ordinary money decree. On the record, the decree operates as a reciprocal restitution: the applicant is to refund the price against the return of the machine. The applicant’s real grievance is that execution now would require it to pay back the whole purchase price and take back a machine which, on the largely uncontested facts, the respondent has used for gain for upwards of a year and continues to use, and which is being worn down as it is used. There is substance in the concern that to execute now, only for the appeal thereafter to succeed, would be to attempt to unscramble an egg; the money could be returned readily enough, but the machine could not be restored to the condition in which it left the applicant’s hands. To that limited but real extent the applicant has shown a risk of loss which the ordinary answer to a money decree does not dispose of. (b) Whether the application was made without unreasonable delay 14.This condition is plainly satisfied. Judgment was delivered on 27th May 2025. The trial court granted a stay of thirty days. The present application was filed on 26th June 2025, within, or immediately upon the expiry of, that period. There has been no delay, let alone unreasonable delay. (c) Security for the due performance of the decree 15.It is the third condition that holds the key to a just disposal of this application. The applicant has not, in terms, offered security. But the respondent itself invites the court, in the alternative, to direct a deposit of the decretal sum in court or in a joint interest-earning account. That is a sensible and principled middle course, and I adopt it. A stay of execution is never intended to defeat a successful litigant’s entitlement to the fruits of its judgment; it is intended to hold the ring and to preserve the subject matter of the appeal. Where, as here, the res is a machine which ought not to be shuttled between the parties in the interim, and the respondent’s countervailing interest is the decretal sum, the order that serves both interests is a stay conditioned upon the deposit of that sum. 16.This conclusion sits comfortably with the particular character of the court from which the appeal comes. The Small Claims Court is designed to deliver expeditious and inexpensive justice, and a party who succeeds before it is entitled to enjoy its judgment without undue hindrance. An unconditional stay would sit uneasily with that design. A stay secured by a deposit of the decretal sum vindicates it: the respondent’s money is preserved and set aside, earning interest, available immediately should the appeal fail, while the appeal is not stifled and the machine is left where it presently lies. 17.As for the respondent’s charge that the appeal is frivolous and unarguable, I need say no more than this, and I say it without deciding anything: the grounds touching on the respondent’s alleged admissions, and on the application of section 13(3) of the Sale of Goods Act, are not frivolous, and are fit to be argued at the hearing of the appeal. I make no finding upon their merits, which remain entirely at large. Disposition 18.For the reasons given, and in the exercise of the court’s discretion, the Notice of Motion dated 26th June 2025 is allowed on terms. I make the following orders:(a)There shall be a stay of execution of the judgment and decree of the Small Claims Court in Mombasa SCCCOMM No. E198 of 2025 delivered on 27th May 2025, together with all consequential orders, pending the hearing and determination of this appeal, on condition that the applicant deposits the entire decretal sum of Kshs. 550,000/= in an interest-earning account opened and held jointly in the names of the advocates for the parties or, at the applicant’s election, deposits the said sum in court, within thirty (30) days of the date of this ruling.(b)In default of the deposit within the time so limited, the stay hereby granted shall lapse automatically and without further order, and the respondent shall be at liberty to execute.(c)The appeal shall be prosecuted with dispatch, and shall be mentioned within Forty-Five (45) days for directions as to its hearing.(d)The costs of the application shall abide the outcome of the appeal.Orders accordingly. DATED, SIGNED AND PUBLISHED ON 7 AUGUST 2026NGAAH JAIRUSJUDGE