https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10803

Wairire t/a Bungoma Prestige Shuttle & 3 others v Joskies Bungoma Line Shuttles Ltd (Civil Appeal E037 of 2026) [2026] KEHC 10803 (KLR) (17 July 2026) (Ruling) Neutral citation: [2026] KEHC 10803 (KLR) Republic of Kenya In the High Court at Siaya Civil Appeal E037 of 2026 DK Kemei, J July 17, 2026 Between Joseph Mwangi Wairire t/a Bungoma Prestige Shuttle 1st Appellant David Mungai Jibu T/A Bungoma Prestige Limited 2nd Appellant Geoffrey Njoroge Kamau T/A Bungoma Prestige Shuttle 3rd Appellant Augustine Muriithi Wangui T/A Bungoma Prestige Shuttle 4th Appellant and Joskies Bungoma Line Shuttles Limited Respondent Ruling 1.The Appellants/Applicants have filed an application dated 17/6/26 seeking the following reliefs:I.Spent.II.Spent.III.THAT there be a stay of the proceedings in SIAYA CMCC NO. E001 OF 2026 pending the hearing and determination of the appeal.IV.THAT costs be provided for. 2.The application is based on the affidavit of Geofrey Njoroge Kamau as well as the grounds set out thereunder. The Applicants’ gravamen is inter alia; that the appellants were sued by the respondent in the trial court for the following orders namely:a.A permanent injunction restraining the defendants whether acting by themselves, relatives, friends, their agents, servants and/or other persons from branding the public service motor vehicles operated, owned and or managed by the defendants using similar and or near similar colours and names as that of the plaintiff and in particular colour orange or shades of orange at the front with near-similar name written in colour green at the front of the defendants' public service vehicles.b.A permanent injunction restraining the defendants whether acting by themselves, relatives, friends, their agents, servants and/or other persons from trespassing on, entering, remaining upon or near, wasting, or otherwise interfering with the plaintiff's peaceful user and occupation of plaintiff's offices located at Eurostyle in Siaya or any other offices.c.Costs of the suit.d.Any other relief the court deems fit to grant.that the respondent also filed an application for interim orders wherein it sought the following orders:a.That this application be certified as urgent and service of this application be dispensed with in the first instance.b.That pending the hearing of this application inter-parties the court be pleased to grant a temporary injunction restraining the defendants/respondents whether acting by themselves, relatives, friends, their agents, servants and/or other persons from branding the public service motor vehicles operated, owned and or managed by the defendants/respondents using similar and or near similar colours and names as that of the plaintiff/applicant and in particular colour orange or shades of orange at the front with near-similar name written in colour green at the front of the defendants/respondents' public service vehicles.c.That pending the hearing of this application inter-parties the court be pleased to grant a temporary injunction restraining the defendants/respondents whether acting by themselves, relatives, friends, their agents, servants and/or other persons from trespassing on, entering, remaining upon or near, wasting, or otherwise interfering with the plaintiff/applicant's offices located at Eurostyle in Siaya or any other offices.d.That the court be pleased to grant an injunction restraining the defendants/respondents whether acting by themselves, relatives, friends, their agents, servants and/or other persons from branding the public service motor vehicles operated, owned or managed by the defendants/respondents using similar and or near similar colours and names as that of the plaintiff/applicant and in particular colour orange or shades of orange at the front with near-similar name written in colour green at the front of the defendants/respondents' public service vehicles pending the hearing and determination of this suit.e.That the court be pleased to grant an injunction restraining the defendants/respondents whether acting by themselves, relatives, friends, their agents, servants and/or other persons from trespassing on, entering, remaining upon or near, wasting, or otherwise interfering with the plaintiff/applicant's peaceful user and occupation of the plaintiff's/applicant's offices located at Eurostyle in Siaya or any other offices pending the hearing and determination of this suit.f.That the Officer Commanding Police Station at Siaya or any other nearest police station do enforce compliance of the orders above.g.That the costs of this application be provided for.h.That the honourable court be pleased to make such further or other orders as it may deem just and expedient in the circumstances of this case.; that the respondent was given interim orders to wit:a.That the application dated 31/12/2025 is certified urgent.b.That an order is hereby issued that pending the hearing of this application inter-parties an order of temporary injunction restraining the defendants/respondents whether acting by themselves, relatives, friends, their agents, servants and/or other persons from branding the public service motor vehicles operated, owned and or managed by the defendants/respondents using similar and or near similar colours and names as that of the plaintiff/applicant and in particular colour orange or shades of orange at the front with near-similar name written in colour green at the front of the defendants/respondent's public service vehicles.c.That an order is hereby issued that pending the hearing of this application inter-parties an order of temporary injunction restraining the defendants/respondents whether acting by themselves, relatives, friends, their agents, servants and/or other persons from trespassing on, entering, remaining upon or near, wasting, or otherwise interfering with the plaintiff/applicant's peaceful user and occupation of the plaintiffs/applicant's offices located at Eurostyle in Siaya or any other offices.d.That the application dated 31/12/2025 be served upon the respondents by close of business on the 5/1/2026.e.That the respondents to file their responses within 10 days upon service of the application.f.That the application shall be disposed via submissions. Each party is granted 10 days to file and serve their submissions starting with the applicant.g.That the applicant to serve their submissions upon the respondents by close of business on 27/01/2026 and thereafter the respondents to file and serve their submissions upon the applicants.h.That the Officer Commanding Police Station at Siaya or any other nearest police station to enforce compliance of the orders above.i.That this matter is fixed for ruling on the 17/02/2026 virtually.; that the appellants interpreted the orders to mean that they should not do further branding as from the date of the orders which they abstained from; that however, the appellants were cited for contempt of the honourable court's orders and consequently were convicted and sentenced and further ordered to purge the contempt within 7 days; that the appellants were not given directions on how to purge the contempt but are apprehensive that the court requires them to de-brand their vehicles; that such de-branding does not form part of the orders of the court given on 2/1/2026; that the said orders of 2/1/2026 as interpreted by the court are oppressive and have the effect of granting final orders in disguise as the same orders are being sought in the main suit; that once the appellants remove the branded colours it shall be impossible to re-brand as such as the same shall not be cost-effective; that the appellants deny that they disobeyed the court's orders whatsoever and maintain that the trial magistrate's interpretation of the orders was wrong; that unless the orders are stayed, the appellants risk being punished for failing to purge the contempt; that it is also just that the proceedings of the lower court be stayed pending the hearing and determination of the appeal. 3.The Respondent opposed the application and duly filed a replying affidavit dated 23rd June 2026.The Respondent’s replying affidavit averred inter alia; that the application was fatally defective ab initio because it relied on an affidavit sworn by one individual without any authenticated, written or verified authority from the other three co-appellants; that the Respondent highlighted a fatal discrepancy where the deponent switched his own identity in the text to "Geoffrey Ngugi Kamau," thereby stripping the supporting document of legal validity; that the Respondent categorically denied that the Applicants had multiple branded vehicles at the onset of the suit, asserting that only one vehicle (Registration No. KCW 818N) was spotted on 30th December 2025 which prompted the initial court order; that despite being properly served with clear orders on 2nd January 2026, the Applicants flagrantly ignored the injunction by introducing another newly branded vehicle (Registration No. KCT 839C) into operation on 13th January 2026 which directly resulted in their lawful conviction for contempt;that the Respondent maintained that the Applicants approached this Court of equity with heavily stained hands in that while they paid the financial fines to protect their physical liberty and avoid jail, they have willfully, deliberately and continuously refused to comply with the second part of the sentence requiring them to purge the contempt; that the Respondent argued that a stay of execution cannot be granted to protect or perpetuate an ongoing illegality; that the Applicants' claim of ambiguity was a dishonest afterthought because a temporary injunction prohibiting the use of distinct color schemes clearly requires them to stop running the deceptively branded vehicles; that the Respondent concluded that they continue to suffer immense structural business sabotage and commercial passing-off and prayed that the application be dismissed with full costs 4.The parties herein agreed to have the Appellant’s application dated 17/6/2026 be canvassed by way of written submissions. 5.The matter came up for highlighting of the submissions on the 9th July 2026 and both parties proceeded to highlight their submissions respectively. 6.Mr. Omar, Counsel for the Appellants submitted that they will rely on their written submissions and that this is a clear case where the Appellants have been ordered to purge a contempt whose exact parameters were never illustrated or clarified by the trial magistrate. That the Appellants acted in good faith by paying the court-ordered fines. Forcing them to de-brand their operating fleet now creates a severe risk of economic loss and renders the pending appeal useless. 7.Mr. Ochieng for the Respondent submitted that they rely on their written submissions and wish to highlight two primary issues;The application is incompetent. It is supported by an affidavit of only one appellant (Geoffrey Njoroge Kamau) yet there is no authenticated authority or signature from the other three parties. There is also a fatal discrepancy in the text where the name is switched to "Geoffrey Ngugi." Under the Civil Procedure Rules, failure to properly authorize and verify is fatal;The threshold for a stay has not been met. By paying the fines to avoid the 4-month jail term, the Appellants accepted the sentence. They cannot approbate and reprobate by accepting the lenient part of the punishment while refusing to purge the contempt. The application should be dismissed with costs. 8.In reply Ms. Omar counsel for the Appellant highlighted that the authority to swear the affidavit on behalf of the co-appellants is clearly pleaded under Paragraph 2 of the supporting affidavit dated 17th June 2026. The variance in the middle name is a minor typographical oversight and does not cause any confusion as to identity. The correct authentic supporting documents were served on the Respondent. Paying a court-ordered fine to secure liberty does not mean the Appellants benefit from or accept an erroneous contempt finding. 9.I have considered the Appellant’s application dated 17/6/2026 plus the rival affidavits and submissions. I find the issue for determination is whether the application has merit. 10.The Respondent raised a preliminary procedural objection noting that the supporting affidavit was sworn by one appellant without verified or authenticated written authority from the remaining three co-appellants. Furthermore, a fundamental discrepancy exists within the body of the pleadings where the deponent alternates identities between Geoffrey Njoroge Kamau and Geoffrey Ngugi Kamau. 11.It is trite law that under Order 19 Rule 3 of the Civil Procedure Rules, an affidavit must strictly verify facts within the deponent’s own knowledge or establish clear unambiguous lawful authority when swearing on behalf of others. The inclusion of unauthenticated claims of authority mixed with shifting identities renders the verification process incompetent. The Applicants' attempt to brush this off as a minor typographical error is unconvincing. The defect is substantial leaving the application procedurally crippled from the outset 12.Even if this Court were to ignore the procedural defects, the Applicants face an insurmountable hurdle in equity. It is admitted by both sides that while the financial penalty was satisfied, the second limb of the sentence the command to purge the contempt within 7 days has been completely ignored. The Applicants continue to run their public transport business using the contested color branding. 13.The principle that a party in contempt cannot seek the court’s discretionary favors is a bedrock of judicial administration. This rule was famously stated by Lord Denning in Hadkinson v. Hadkinson [1952] 2 All ER 567 and adopted by the Supreme Court of Kenya in Republic v Mohammed & another [2019] KESC 47 (KLR):“It is a strong and stubborn rule of our courts that a party who has acted in open defiance of a lawful court order cannot while remaining in such continuous contempt come forward to ask for the exercise of the court’s discretionary or equitable powers. Such a party must first purge their contempt or show an absolute impossibility of compliance." 14.The Applicants argue that the terms of the purging order are ambiguous. This Court finds that argument to be a dishonest afterthought. A temporary injunction prohibiting the use of a specific brand design naturally demands that the offending vehicles cease using or displaying that design. By electing to pay the alternative fine to avoid prison while simultaneously ignoring the core order to stop using the branding, the Applicants are attempting to buy their way out of lawful compliance. Equity will not allow its processes to shield a continuing wrong. 15.The core of this application rests on the power of the High Court to grant a stay of proceedings or execution pending appeal. This power is discretionary but deeply regulated by statutory anchors primarily Order 42 Rule 6 (1) and (2) of the Civil Procedure Rules. The provision commands that no order for a stay of execution shall be made unless the court is satisfied of three distinct cumulative conditions:i.That substantial loss may result to the applicant unless the order is made;ii.That the application has been made without unreasonable delay; andiii.That 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. 16.The paramount parameter is the demonstration of "substantial loss." It is a mathematical and evidentiary burden not an exercise in judicial intuition or speculative rhetoric. The applicant must place concrete material facts before the court showing how the execution will cause quantitative or systemic ruin that cannot be reversed if the appeal succeeds. 17.In the locus classicus Kenya Shell Limited v Benjamin Karuga Kibiru & anorther [1986] KECA 94 (KLR)the Court of Appeal laid down the definitive test for substantial loss stating:‘‘The applicant must show that the execution would satisfy the decree in such a manner that the status quo cannot be restored or that the applicant would suffer financial or structural ruin which cannot be compensated by an award of costs or damages if the appeal ultimately succeeds. Substantial loss is a question of fact to be proved by evidence." 18.In the present matter, the Applicants casually aver that completing the de-branding process on their public service fleet will cause them financial loss. However, they have failed to supply this Court with any audited financial statements, historical data of operational costs or certified quotes establishing the financial layout of de-branding. Broad assertions of economic distress do not constitute proof of substantial loss. 19.Furthermore, the Applicants are met with an insuperable legal barrier regarding the nature of the lower court's decree. The trial magistrate delivered a composite, alternative sentencing framework: a fine of Kshs. 40,000 or four months imprisonment coupled with a mandatory requirement to purge the contempt. The Applicants voluntarily chose to pay the fines to secure their physical liberty. By fulfilling the penal part of the judgment, the Applicants actively complied with and took benefit of the alternative sentencing package to avoid jail. They cannot now turn around and attack the residual portion of the exact same order. This triggers the strict common law principle that a party cannot approbate and reprobate. Having elected to accept and satisfy the penal fine under the lower court's ruling, the Applicants cannot maintain that the consequential duty to purge the contempt constitutes an unexpected unlawful "substantial loss. 20.Court orders are the lifeblood of the rule of law. To grant a stay of proceedings in favor of a party actively engaging in commercial passing-off in flagrant violation of a subsisting court injunction would be to make this Court an accessory to judicial disobedience. The appropriate thing to do for the Applicants were first to comply fully with the court’s order and possibly seek to convince the trial court for a review of the same if they had sufficient reasons and only approach the appellate court once the trial court makes an order they disagree with. Even if the Applicants feel unhappy about the second limb of the order, they should approach the trial court over the same. The cardinal principle of the rule of law is that court orders must be obeyed once they are served and that any party aggrieved by them should approach the said court and seek to have the same set aside or reviewed after convincing the said court and approach the appellate court for further orders if aggrieved. 21.In view of the foregoing observations, it is my finding that the Appellant/Applicants Notice of Motion application dated 17th June 2026 lacks merit and is dismissed with costs. The interim stay orders granted on 24th June 2026 are hereby vacated. DATED AND DELIVERED AT SIAYA THIS 17TH DAY OF JULY 2026.D.KEMEIJUDGEIn the presence of :M/s Omar....................................for Appellants/ApplicantsOchieng...............................................for RespondentMaureen....................................................Court Assistant