https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11126

 REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT KIAMBU COUNTY COURT NAME: THIKA HIGH COURT CASE NUMBER: HCCA/E287/2025 VALDA SOLUTIONS LIMITED VS BIGCOLD KENYA LIMITED JUDGMENT ***(Being an Appeal arising from the Ruling/ Order of Hon. Noelle Kyanya, Chief Magistrate, delivered on 29th October, 2025, in Ruiru Law Courts in MCCC/E003/2025)*** # INTRODUCTION * 1. Judgment was delivered by the trial court, presided over by Hon. N.M. Kyanya, on 3rd October 2025 in favour of the Plaintiff. Subsequently, the Plaintiff extracted a Decree dated 15th October 2025, and, pursuant thereto, obtained warrants of attachment, leading to the issuance of a proclamation notice. 2. The Respondent thereafter filed an application dated 24th October 2025 seeking, inter alia, to stay the execution of the said decree. Upon considering the application, the court directed the parties to appear on 29th October 2025 for directions. On the same date, the court further ordered the Plaintiff (now the Appellant) to release the attached motor vehicles to the Respondent, with the Appellant bearing the auctioneer's charges and storage fees. 3. Aggrieved by the said order, the Appellant filed a Memorandum of Appeal dated 29th October 2025 together with an Application under Certificate of Urgency of even date. 4. Ruing was delivered with regards to the said Application dated 29th October 2025 and the court ordered as follows; 1. That this Application dated 29th October 2025 shall stand as abandoned and that the parties shall pursue the appeal. 2. That the record of appeal shall be filed within 30 days following which directions shall be taken. 5. In light of the above, it is necessary to consider the parties’ respective positions as set out in their submissions, and ultimately determine whether the present appeal is merited. # SUBMISSION BY PARTIES ## Appellant’s Submissions 1. The first ground advanced by the Appellant concerns the grant of stay of execution. The Appellant submitted that the learned magistrate erred in law by granting a blanket stay of execution for sixty (60) days without considering or satisfying the mandatory requirements set out under Order 42 Rule 6(2) of the Civil Procedure Rules. 2. The Appellant further submitted that the Respondent failed to demonstrate the substantial loss it stood to suffer in the absence of a stay order. Additionally, the learned magistrate failed to require the Respondent to furnish security for the due performance of the decree as mandated by law. 3. The second ground of appeal relates to the legality of the execution process. The Appellant submitted that the execution carried out on 24th October 2025 was lawful, regular, and had been fully completed before the Respondent purportedly served the stay order on 28th October 2025. 1. The Appellant further contended that a court order is only binding upon a party once it has been duly served or brought to that party’s attention. It was submitted that neither the Appellant nor the auctioneer had been served with, or had knowledge of, the alleged stay order issued on 24th October 2025. In support of this position, the Appellant relied on the decision in ***Shah v Jamnadas.*** 2. The Appellant also submitted that the Respondent’s email dated 21st October 2025 made no reference whatsoever to the existence of any court order staying execution. 3. Another ground raised by the Appellant concerns the alleged denial of the right to a fair hearing. The Appellant submitted that it was served with the Respondent’s application at 4:57 p.m. on 28th October 2025, despite the matter being scheduled for directions at 8:00 am, the following day and not for the substantive hearing of the application. Nevertheless, the learned magistrate required the Appellant’s Advocate to argue the application on its merits. The Appellant contended that this amounted to a violation of Article 50(1) of the Constitution of Kenya, 2010, and relied on ***Patisho Holdings Ltd & Another v Paul Ndugu & Others (1997) eKLR.*** 4. The Appellant further submitted that the Respondent was in the process of winding down its operations and that, on a balance of probabilities, there existed a real and imminent risk that the attached motor vehicles would be disposed of, transferred, or concealed if released to the Respondent, thereby defeating the decree. 5. The Appellant argued that the purpose of the appeal was to preserve the subject matter and maintain the status quo, rather than render the decree-holder’s judgment nugatory. Reliance was placed on ***Kenya Shell Ltd v Kibiru (1986) KLR,*** where the court observed that where there is a likelihood of dissipation of assets by a judgment debtor, a stay ought not to be granted without appropriate security. 6. Consequently, the Appellant prayed that the court be pleased to direct the Respondent to settle the auctioneer’s charges and storage fees incurred during the lawful execution process. ## Respondents Submissions 1. The Respondent submits that the trial court granted a 60-day stay of execution. A perusal of page 100 of the Record of Appeal shows that Counsel for the Respondent sought a stay of execution for 60 days to enable the Defendant settle the decretal sum, and the court duly granted the request. Further, Order 42 Rule 6 of the Civil Procedure Rules, permits an application for stay of execution to be made immediately after delivery of judgment. The trial court was therefore properly empowered to grant the stay sought by the Respondent. 2. Secondly, the Appellant alleges that the trial court erred in failing to appreciate that execution had been completed on 24th October 2025. The Respondent submits that execution had not been completed as at that date and, in any event, had been commenced irregularly. The execution process begins with the proclamation of the judgment debtor’s assets and is only completed upon the sale of the attached property by public auction and the subsequent return of the warrants duly endorsed by the auctioneer indicating the manner in which they were executed. 3. In the present case, the Appellant purported to proclaim the Respondent’s assets on 24th October 2025 and, on the very same day, carted away the Respondent’s three motor vehicles. The removal of the attached goods on the date of proclamation was highly irregular and in contravention of Rule 12 of the Auctioneers Rules. 4. In respect of Ground 3, the Respondent submits that the Appellant’s contention that it was denied the right to a fair hearing is unfounded. The record shows that counsel for both parties were present in court when directions relating to the stay of execution were issued. 5. On Ground 4, the Respondent submits that a perusal of the court record demonstrates that the trial court heard both parties before issuing its directions. Reference was made to page 60 of the Record of Appeal, which reflects the grant of the 60-day period by the court. Further, the Appellant has conceded in its submissions that it received the Respondent’s emails notifying it of the stay orders. Having been notified of the stay, the Appellant ought to have verified the position from the court file if it had any doubts regarding the contents of the email. Consequently, it was irregular for the Appellant to proceed with execution while aware of the subsisting court order. 1. The Respondent further submits that a party's failure to attend court on the date of delivery of judgment cannot render erroneous the court's subsequent grant of a stay of execution. Indeed, the trial court acknowledged certain irregularities in the execution process. First, the court inadvertently signed the warrants of attachment and sale despite having granted stay orders in favor of the Respondent. Second, the Appellant's advocates failed to forward a draft decree to the Respondent’s advocates for approval as required under Order 21 Rule 8 of the Civil Procedure Rules. Third, despite being served with the extracted stay order on 28th October 2025, the Appellant continued to detain the Respondent’s motor vehicles. The Respondent therefore submits that the entire execution process was irregular. 2. With regard to Grounds 5 and 7 of the Memorandum of Appeal concerning substantial loss and the furnishing of security, the Respondent submits that Ground 7 has been overtaken by events. The decretal sum was paid on 25th November 2025, within the 60-day period granted by the court, as acknowledged by the Appellant in the final page of its submissions. Following payment, the Appellant released the attached motor vehicles. Further, security for the due performance of a decree is ordinarily required where a party seeks a stay pending appeal. In the present case, the stay was sought merely to afford the Respondent reasonable time to settle the decretal amount. 3. As regards the allegation that the Respondent was in the process of winding up its business, the Respondent submits that it is a settled principle of law that he who alleges must prove. The Appellant has not produced any evidence whatsoever in support of that allegation and has therefore failed to discharge its burden of proof. 4. On the final issue, the Respondent submits that the Appellant has failed to demonstrate any error of law or misdirection on the part of the trial court in entertaining and granting the oral application for stay of execution made by the Respondent’s counsel immediately after delivery of judgment. # ISSUES FOR DETERMINATION 1. Having carefully considered the Memorandum of Appeal, the Record of Appeal, the Ruling of the trial court, and the submissions by the parties, the following issues arise for determination: 1. Whether the trial court properly exercised its discretion in granting a 60-day stay of execution. 2. Whether the Appellant was denied the right to a fair hearing before the impugned orders were issued. 3. Whether the execution and attachment undertaken by the Appellant were regular and lawful. 4. Whether the Appellant deliberately disregarded or acted in defiance of the stay orders issued by the trial court. 5. Whether the Appellant has established sufficient grounds to warrant interference with the discretion exercised by the trial court. # ANALYSIS OF THE ISSUES FOR DETERMINATION ## Whether the trial court properly exercised its discretion in granting a 60-day stay of execution 1. The Appellant contends that the learned trial magistrate erred in granting a blanket stay of execution for sixty (60) days without satisfying the requirements set out under Order 42 Rule 6(2) of the Civil Procedure Rules. 2. The Respondent, on the other hand, submits that immediately after delivery of judgment, it sought a temporary stay of execution to enable it settle the decretal amount and that the trial court properly exercised its discretion in granting the said stay. 3. The court has perused the proceedings and notes that immediately after delivery of judgment, counsel for the Respondent requested for sixty (60) days within which to settle the decretal sum. The trial court granted the said request. 4. The court notes that the Respondent was not barred in law from seeking a stay of execution immediately after delivery of judgment. Order 42 Rule 6 of the Civil Procedure Rules expressly permits a party to seek stay before the court which passed the decree. The Respondent therefore acted within its legal rights in seeking temporary protection from execution. 5. Similarly, the trial court acted within its jurisdiction and discretion in granting the stay sought. The grant of stay of execution is a discretionary remedy intended to balance the successful party's right to enjoy the fruits of judgment and the judgment debtor's right to seek reasonable protection from immediate execution. 6. In ***Butt v Rent Restriction Tribunal (1982) KLR 417***, the Court of Appeal held that the power to grant or refuse stay of execution is discretionary and should be exercised in a manner that ensures justice to both parties. 7. Likewise, in ***Mbogo & Another v Shah (1968) EA 93***, the court held that an appellate court ought not interfere with the exercise of discretion unless it is shown that the court misdirected itself in law, took into account irrelevant considerations, failed to take into account relevant considerations, or arrived at a plainly wrong decision. 8. The Appellant further alleged that the Respondent was in the process of winding down its operations and would therefore be unable to satisfy the decree. However, no evidence whatsoever was tendered before the trial court or this court to support that allegation. The burden of proof rests upon the party making the allegation and mere assertions cannot suffice. 9. Further, it is not disputed that the decretal amount was ultimately paid within the sixty (60) days granted by the trial court. The very purpose for which the stay was granted was therefore achieved. 1. In the circumstances, this court finds that the learned magistrate properly exercised her discretion in granting the temporary stay of execution and no basis has been laid to warrant interference by this court. ## Whether the Appellant was denied the right to a fair hearing 1. The Appellant contends that it was served with the Respondent's application late in the day preceding the hearing and was thereby denied sufficient time to prepare and respond. 2. The record, however, demonstrates that both parties were represented by counsel when the matter came up before the trial court. The proceedings further show that counsel for both parties addressed the court orally before the impugned orders were made. 3. The right to a fair hearing under Article 50(1) of the Constitution guarantees every party an opportunity to be heard before an adverse decision is rendered. In ***Onyango Oloo v Attorney General (1986-1989) EA 456,*** the court emphasized that the fundamental requirement of natural justice is that a party be accorded an opportunity to present its case. 4. The Appellant has not demonstrated that it was denied an opportunity to address the court or that there existed any submissions or evidence which it was prevented from presenting. Neither has the Appellant demonstrated any prejudice occasioned by the manner in which the application was canvassed. 5. Indeed, applications may be argued either orally or through written submissions. The mere fact that the application was argued orally does not, by itself, amount to a violation of the right to a fair hearing. 6. Consequently, this court finds that the Appellant was afforded an opportunity to be heard and that its right to a fair hearing was not infringed. ## Whether the execution and attachment undertaken by the Appellant were regular and lawful 1. The court has considered the competing positions advanced by the parties regarding the execution process. 2. The Appellant maintains that execution had already been completed by the time the stay orders came to its attention. The Respondent, however, contends that the attachment process was irregular and that execution had not been completed. 3. The court finds that the Appellant cannot be faulted for commencing execution upon obtaining a duly extracted decree and warrants of attachment issued by the trial court. As the successful litigant, the Appellant was entitled to enjoy the fruits of its judgment and was justified in commencing execution proceedings on the strength of court process that had been lawfully issued. 4. Notably, the warrants of attachment were issued by the court. Had the stay orders been reflected in the court record at the point of extraction of the warrants, the court registry would ordinarily have declined to issue the warrants. The Appellant was therefore entitled to rely on the validity and regularity of the court process issued in its favour. 5. In the court's view, the Appellant acted in pursuit of its lawful rights as a decree-holder and cannot be blamed for acting upon court-issued warrants which appeared regular on their face. ## Whether the Appellant deliberately disregarded or acted in defiance of the stay orders issued by the trial court 1. The Appellant maintains that it had no knowledge of the stay orders when execution was undertaken. The Respondent contends that the Appellant had been notified of the existence of the stay orders through email communication. 2. Having considered the record, the court is unable to conclude that the Appellant deliberately acted in defiance of a court order. While there appears to have been communication regarding the existence of the stay orders, the evidence does not establish deliberate disobedience or bad faith on the part of the Appellant. 3. Equally, the court finds that the Respondent was entitled to seek the protection of the court through a stay of execution and cannot be faulted for pursuing a remedy expressly provided for under the law. 4. The circumstances of this matter reveal an unfortunate overlap between the issuance of stay orders and the subsequent execution process rather than any deliberate misconduct by either party. ## Whether sufficient grounds have been established to warrant interference with the trial court's discretion 1. As a first appellate court, this court is required to re-evaluate the material on record and arrive at its own independent conclusions while bearing in mind that it neither saw nor heard the parties before the trial court. This principle was restated in ***Selle & Another v Associated Motor Boat Co. Ltd (1968) EA 123.*** 2. Upon re-evaluating the entire record, this court is satisfied that all parties acted in pursuit of what they genuinely believed to be their lawful rights. 3. The Respondent was entitled to seek a stay of execution. The trial court was entitled to exercise its discretion and grant the temporary stay. Equally, the Appellant was entitled to execute the decree after obtaining warrants duly issued by the court and cannot be faulted for relying on court process which appeared valid and regular. 4. The court therefore finds no misdirection, error of principle, or improper exercise of discretion on the part of the learned magistrate that would justify appellate interference. # DISPOSITION 1. In the end, having carefully considered the record and the applicable law, this court finds that the appeal lacks merit. 2. Accordingly, the court makes the following orders: 3. The Appeal is hereby dismissed. 4. The Orders issued by the trial court of 29th October 2025 are hereby upheld. 5. The Auctioneer's charges and Storage fees incurred during the execution process shall be borne by the Appellant. 6. Given the peculiar circumstances of this case, and considering that both parties acted in pursuit of their lawful rights and interests, each party shall bear its own costs of the Appeal. It is so ordered. SIGNED BY/FOR: **□ TH E JUDICIAR Y O F KENY A ★** **HON. JUSTICE ABDI M. HASSAN** Thika High Court High Court Div Date: 2026-07-20 22:54:19