https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12280

 **REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT MACHAKOS** **CIVIL APPEAL NO. E276 OF 2025** **JOYCE WANJIKU** ................................................................................. **1ST APPELLANT** **CHARLES NGANGA WAIRIMU** ........................................................ **2ND APPELLANT** **VERSUS** **GLADYS N. NYUMA** (Suing as the Legal Representative of the Estate of OSCAR KIMANZI MWENDA (Deceased)) ................................................................ **RESPONDENT** *(Being an appeal arising from the ruling and the consequential orders issued on 6th November 2025* *by Hon. H. Onkwani, Senior Principal Magistrate, in CMCC No. 13 of 2019 – Chief Magistrate's Court at Kithimani)* **RULING** 1. By the Notice of Motion dated 12th November 2025, the Appellants/Applicants seek orders that; (a) ***there be a stay of execution of the decree in CMCC No. 13 of 2019 at Kithimani pending the hearing and determination of the application and the intended appeal; and*** ***(b) a temporary injunction do issue restraining the Respondent and/or her agents from attaching and/or selling the Appellants' proclaimed goods pending the hearing and determination of the application and the appeal.*** 2. The appeal arises from a ruling delivered on 6th November 2025 by Hon. H. Onkwani, Senior Principal Magistrate, dismissing the Appellants' application dated 6th August 2025 to set aside the ex parte judgment entered against them on 17th January 2024 in CMCC No. 13 of 2019, a suit filed in 2019 arising from a road traffic accident involving motor vehicles KBY 182M, KBU 251L and KAD 117H, in which the Respondent's deceased, the driver of motor vehicle KAD 117H, lost his life. The trial court had found that summons were properly served through substituted service by registered post to the address disclosed in the police abstract, an application for substituted service having been allowed on 12th February 2020, and that the draft defence disclosed no triable issue. The Appellants have since filed a Memorandum of Appeal dated 12th November 2025 setting out eight grounds of appeal, challenging in the main the trial court's findings on service and triable issues and its treatment of the liquidation of the 1st Appellant's insurer. 3. The gist of the present application, as deposed in the supporting affidavit, is that execution has already been set in motion through proclamation by Jamdee Auctioneers, exposing the Appellants' goods to imminent attachment and sale; that the Appellants were never served with summons, the alleged service having been effected through registered post to an address unknown to them and upon an unidentified person; that their draft defence raises triable issues including contributory negligence, the deceased's role as driver of motor vehicle KAD 117H, misrepresentation and non-disclosure, and the doctrine of *volenti non fit injuria*; and that the 1st Appellant's insurer, Xplico Insurance Company Limited, is under liquidation, a matter the Appellants contend the trial court failed to address. 4. In written submissions dated 23rd March 2026, learned counsel for the Appellants relies on ***Butt v Rent Restriction Tribunal*** [1979] eKLR, ***Giella v Cassman Brown & Co. Ltd*** [1973] EA 358 (as applied in ***Nguruman Limited v Jan Bonde Nielsen & 2 Others*** [2014] eKLR), and ***Tree Shade Motors Limited v D.T. Dobie and Company (K) Limited & Another*** [1998] KECA 40 (KLR), and reiterates that the decretal sum of Kshs. 3,774,540 exposes the Appellants to substantial and irreparable loss such that both stay of execution and injunctive relief ought to be granted. 5. The application is vehemently opposed. In her Replying Affidavit sworn on 24th February 2026, the Respondent depones that the Appellants had already filed an application dated 6th August 2025 seeking identical relief, which was fully heard and dismissed on merit; that the trial court found that service was properly effected through substituted service, that the draft defence disclosed no triable issue, and that the 2nd Appellant's conviction in Traffic Case No. 136 of 2017 for causing the accident has never been overturned; and that the liquidation of the 1st Appellant's insurer does not absolve the Appellants of their personal liability in tort. This is echoed in the Respondent's submissions dated 24th March 2026, in which learned counsel relies, among others, on ***James Wangalwa & Another v Agnes Naliaka Cheseto*** [2012] eKLR, ***National Industrial Credit Bank Ltd v Aquinas Francis Wasike & Another***, Civil Application No. 238 of 2005, ***Focin Motorcycle Co. Limited v Ann Wambui Wangui & Another*** [2018] eKLR, and ***Kenya Orient Insurance Co. Ltd v Paul Mathenge Gichuki & Another*** [2014] eKLR. 6. I have considered the application, the rival affidavits and the submissions of both sides. An order for stay of execution pending appeal is not granted as of right but upon settled principles. **Order 42 Rule 6(2) of the Civil Procedure Rules** requires an applicant to satisfy this Court that substantial loss may result unless the order is made, that the application has been made without unreasonable delay, and that the applicant has given or is willing to give such security as the court orders for due performance of the decree. These conditions are conjunctive and fetter the discretion of this Court, as was held by the Court of Appeal in ***Vishram Ravji Halai v Thornton & Turpin*** [1990] KLR 365: ***"That whereas the Court of Appeal's power to grant stay pending appeal is unfettered, the High Court's jurisdiction to do so under Order 42 rule 6 of the Civil Procedure Rules is fettered by three conditions namely, establishment of a sufficient cause, satisfaction of substantial loss and the furnishing of security."*** The test for a temporary injunction pending appeal, being ***Giella v Cassman Brown & Co. Ltd*** [1973] EA 358, as applied by the Court of Appeal in ***Nguruman Limited v Jan Bonde Nielsen & 2 Others*** [2014] eKLR, requires a prima facie case with a probability of success, proof of irreparable injury not compensable in damages, and, if in doubt, resolution on a balance of convenience, the three conditions being sequential such that failure at the first stage disposes of the application. As the Court of Appeal further observed in ***Butt v Rent Restriction Tribunal*** [1979] eKLR, the discretion to grant a stay must be exercised so as not to prevent an appeal, but equally must not deprive a successful litigant of the fruits of her judgment without just cause. It bears emphasis that the requirement to show an arguable appeal, coupled with an inquiry into whether the appeal would be rendered nugatory, is the test applicable to applications made directly to the Court of Appeal under rule 5(2)(b) of the Court of Appeal Rules. It is not, in terms, a condition of Order 42 Rule 6(2) of the Civil Procedure Rules, which, as ***Vishram Ravji Halai v Thornton & Turpin*** makes clear, is confined to substantial loss, delay and security. I proceed on that footing, and do not treat the arguability of the appeal as itself a distinct hurdle the Appellants must clear. 7. The Respondent contends that this application is an impermissible attempt to re-open matters already determined in the ruling of 6th November 2025, and thus an abuse of the process of this Court. I do not accept that characterisation. The application dismissed on 6th November 2025 sought to set aside the ex parte judgment itself and for leave to defend; the present application seeks a stay of execution and an injunction pending the appeal now lodged against that very dismissal. The two are distinct remedies serving different purposes. An application for stay pending appeal is the ordinary and necessary incident of a party's right to pursue an appeal, and the fact that it is grounded in facts overlapping with the dismissed application does not, without more, render it an abuse of process. I say no more on this point, as it does not affect the outcome of this application. 8. **On substantial loss:** the loss in question need not be purely monetary. Where, as here, specific goods have already been proclaimed for sale, their sale, once concluded, is ordinarily irreversible, and the resulting harm to the Appellants would not necessarily be undone by a subsequent award of damages; the appeal, even if ultimately successful, would in that event be rendered nugatory. This concern lies at the heart of the jurisdiction to grant a stay, as the Court of Appeal explained in ***Kenya Shell Limited v Benjamin Karuga Kibiru & Another*** [1986] KECA 94 (KLR): ***"Substantial loss in its various forms is the cornerstone of both jurisdictions for granting a stay. That is what has to be prevented. Therefore without this evidence it is difficult to see why the respondent should be kept out of her money."*** A like concern was expressed by the Court of Appeal in ***Consolidated Marine v Nampijja & Another***, Civil Application No. Nai. 93 of 1989, where it was held that the purpose of an application for stay of execution pending appeal is to preserve the subject matter in dispute so that the right of an appellant exercising an undoubted right of appeal is safeguarded, and the appeal, if successful, is not rendered nugatory. It is correct, as the Court of Appeal held in ***ABN Amro Bank NV v Le Monde Foods Limited***, Civil Application No. Nai 15 of 2002, and reiterated in ***National Industrial Credit Bank Ltd v Aquinas Francis Wasike & Another***, Civil Application No. 238 of 2005, that once an applicant states that it is unaware of a respondent's means, the evidential burden shifts to the respondent to show, by pointing to specific, identifiable assets such as land or cash in the bank, that the decretal sum can be refunded. I do not, however, accept that the Respondent has discharged even that shifted burden. The Replying Affidavit and the Respondent's submissions assert, in general terms, that she is capable of refunding the decretal sum, but neither document particularises how that would be done: no bank statement, payslip, title, or schedule of assets has been placed before this Court. A bare assertion of capacity, without more, falls short of the standard contemplated in ABN Amro Bank NV v Le Monde Foods Limited. Both sides have, in this respect, fallen short of the rigour the authorities require: the Appellants have not shown, beyond the fact of the proclamation itself, that they personally would suffer loss irrecoverable in the ordinary course; and the Respondent has not shown, beyond a bare assertion, that she is in fact able to refund the decretal sum should the appeal succeed. 9. **On security:** the Appellants have not themselves proposed any specific form of security. That is a matter this Court is entitled to weigh, but it does not, without more, defeat the application, since the furnishing of security under Order 42 Rule 6(2) is not, in the first instance, a matter left to the applicant's own initiative or willingness; the Rule speaks of 'such security as the court orders', and it falls to the Court, not the parties, to fix its nature, form and amount. That approach was affirmed in ***Chege v Gachora***, ***Civil Appeal 265 of 2023 [2024] KEHC 1994 (KLR)***, where the High Court held that the issue of security is discretionary and it is upon the court to determine the same, notwithstanding that the applicant in that matter had not himself proposed any terms, and went on to grant a conditional stay on terms that part of the decretal sum be paid to the respondent and the balance deposited in a joint interest-earning account held by the advocates for both parties. Similarly, in ***Mwaura Karuga t/a Limit Enterprises v Kenya Bus Services Ltd & 4 Others*** ***[2015] eKLR***, it was held that the security 'must be one which shall achieve due performance of the decree which might ultimately be binding on the applicant.' The absence of a proposal from the Appellants accordingly does not foreclose this Court's power to fashion, of its own motion, an order for security adequate to protect the Respondent's ultimate entitlement under the decree. 10. **On the alleged want of service and triable issues:** these grounds were fully canvassed before, and determined by, the trial court, which, applying ***Kingsway Tyres and Automart Ltd v Rafiki Enterprises Ltd***, ***Civil Appeal No. 220 of 1995***, a decision of the Court of Appeal, held: ***"The onus was on the respondent to fault the service. Having failed to do so, and in the absence of evidence on record to lead us to hold that the service was improper, it is our view and so hold that ex parte judgment was a regular judgment."*** The trial court further found, applying ***Tree Shade Motors Limited v D.T. Dobie and Company (K) Limited & Another*** ***[1998] KECA 40 (KLR),*** itself grounded in the Court of Appeal's earlier decision in ***Patel v E.A. Cargo Handling Services Ltd*** ***[1974] EA 75***, that the draft defence raised no triable issue, that is, no issue disclosing a prima facie defence worthy of trial. This Court, seized only of an interlocutory application for stay and injunction pending appeal, is not the proper forum to re-determine those findings; that exercise falls to be undertaken, if at all, in the appeal itself. As already noted, the Appellants are not required, for purposes of this application, to show that their appeal is arguable; what remains relevant is the balance, restated in ***Butt v Rent Restriction Tribunal*** ***[1979] eKLR***, between preserving the substratum of the appeal and respecting the entitlement of a successful litigant, here an estate that has awaited compensation since 2019, to the fruits of her judgment. 11. **On the liquidation of the insurer:** the moratorium on proceedings that attends the liquidation of a company binds actions against that company; it does not, without more, extend to a third party's execution against a separate legal person, namely the insured tortfeasor. That is the position taken consistently by the High Court, including in respect of this very insurer, in ***Jane Wanjiru Mwangi v Xplico Insurance Company Limited; Duncan Odhiambo Owino*** ***(Interested Party/Respondent) [2021] eKLR***, where the Court held: ***"The applicant is entitled to file a declaratory suit against the defendant pursuant to the provisions of the Insurance (Motor Vehicles Third Party Risks) Act, in a bid to have the insurer settle any pending claims arising out of an insurance policy entered into between an insurer and its insured; this does not necessarily bar a decree holder from pursuing the decretal sum from an insured person."*** The Appellants' liability, arising as it does in tort, is personal to them and is not suspended by the liquidation of Xplico Insurance Company Limited. This ground, though forcefully argued, does not avail the Appellants at this stage. 12. The upshot is that the goods already proclaimed are specific property whose sale, once effected, could not be undone even should the appeal succeed; the Respondent has not, for her part, particularised her capacity to refund the decretal sum; and on security it is for the court through its own powers to fix the appropriate terms. Balancing these considerations against the Respondent's entitlement, as a successful litigant, to the fruits of her judgment, and mindful that the discretion under Order 42 Rule 6(2) exists to guard against an appeal being rendered nugatory rather than to shield a defaulting judgment debtor, I am satisfied that the interests of justice are best served by a conditional order preserving the specific proclaimed goods from sale, on terms that adequately secure the Respondent's ultimate entitlement, rather than by an unconditional grant or an outright dismissal. It follows, applying the Court of Appeal's decision in ***Nguruman Limited v Jan Bonde Nielsen & 2 Others*** ***[2014] eKLR***, that a prima facie case sufficient to warrant a like injunction, on the same conditions, is also established. 13. Accordingly, the Notice of Motion dated 12th November 2025 is allowed, and I make the following orders: (a) There shall be a stay of execution of the decree in Machakos CMCC No. 13 of 2019 at Kithimani, and a temporary injunction restraining the Respondent, her agents, servants or auctioneers from attaching, selling or otherwise disposing of the Appellants' proclaimed goods, pending the hearing and determination of the appeal herein, on condition that the Appellants deposit the sum of Kshs. 3,774,540 in an interest-earning account in the joint names of the advocates for both parties, or in court, within thirty (30) days of the date of this ruling. (b) In default of such deposit within the stipulated period, the orders in (a) above shall automatically lapse, and the Respondent shall be at liberty to proceed with execution of the decree without further reference to this Court. (c) Costs be in the cause. **Orders accordingly.** Ruling signed, dated and delivered virtually via Microsoft Teams on this 30th day of July 2026. **E.N. MAINA** **JUDGE** **In the presence of;** Mr. Mathenge for the Appellants Ms. Msheti for the Respondent Court Assistant Miriam