Whitehorse Carriers Ltd v Wambulwa (Appeal E084 of 2026) [2026] KEHC 12365 (KLR) (31 July 2026) (Ruling)

**REPUBLIC OF KENYA** **IN THE HIGH COURT AT KAKAMEGA** **APPEAL NO E084 OF 2026** WHITEHORSE CARRIERS LIMITED---------------------------------------------------APPELLANT VERSUS KEVIN WAMBULWA-------------------------------------------------------------------- RESPONDENT **RULING** 1. Vide a Notice of 30th June 2026, the Applicant seeks the following orders; 2. That the application be certified as urgent and be heard ex parte in the first instance 3. That the Honourable Court be pleased to grant leave to the firm of WANDAI MATHEKA AND COMPANY ADVOCATES t o come on record for the Appellant 4. THAT pending the hearing and determination of this Application, there be a temporary stay of execution of the decree, warrants of attachment dated 10th June 2026, notification of sale of movable property dated 30th June 2026 and all consequential execution arising from the judgment and decree in Butali MCCC No. 13 of 2019. 5. THAT pending the hearing and determination of the Application and Appeal herein, the Respondent, his servants, agents and/or auctioneers be restrained from advertising for sale, selling, transferring, alienating or otherwise dealing with Motor Vehicle Registration Number KDH 435 G/ZG 5356 AND; 6. THAT pending the hearing and determination of this application, this Honourable Court be pleased to order the immediate release and restoration to the Appellant of Motor Vehicle Registration Number KDH 435G/ZG 5356. 7. The application was supported by the affidavit of Judith Oraro for the Appellant, who avers that on 3rd June 2026, the Chief Magistrate’s Court at Butali delivered a ruling dismissing the Appellant’s Notice of Motion dated 17th February 2026, where they sought orders to set aside the Ex parte judgment entered against the Appellant. 8. She avers that the Appellant appealed against the said impugned ruling. She states that the Appellant was not aware of the suit at the trial court as they were not served with summons to enter appearance and only came to be aware of its existence after execution proceedings had commenced against them. She claimed that the process server who allegedly served the court was to be summoned; however, the court declined their request and dismissed the application. 9. That immediately, the Respondent proceeded to execute and on 30th June 2026, the Auctioneers under the Respondent’s instructions attached the appellant’s motor vehicle registration Number KDH 435G/ZG 5356 without any proclamation notice being served on them. 10. They claim financial loss as the car was one of the vehicles used in their transport business and believe that the Respondent would sell the attached vehicle before the appeal is heard and determined. 11. The Appellant avers that the vehicle was insured by APA Insurance Limited, who were never notified of the suit and the judgment entered Ex parte. 12. They agree to put up security as imposed by the court for due performance of the decree and state that they will suffer substantial loss if the stay of execution is not granted, stating that they filed the application without any unreasonable delay. 13. The application was to be canvassed by way of written submissions. **Respondent’s submissions** 1. The Respondent opposed the Applicant's Notice of Motion seeking a stay of execution pending appeal and the release of motor vehicle registration No. KDH 435G/ZG 5356. He raised several issues for determination. On the first issue of whether the Applicant has an arguable appeal, he contends that the appeal lacks merit as it challenges the trial court’s discretion to set aside the judgment at the trial court despite him being duly served, stating that it complied with the mode of service and that despite being served, they failed to defend the suit. 2. The Respondent quoted the case of **Macharia t/a Macharia & Co. Advocates v East African Standard (2002) KLR,**where the Court emphasised that a successful litigant is entitled to enjoy the fruits of his judgment and that courts should balance the interests of both parties when considering stay applications. 3. On whether the stay should be granted, they submitted that under Order 42 Rule 6 of the Civil Procedure Rules, the applicant had to demonstrate that they would suffer substantial loss, have filed the application without undue delay and have to furnish security for the due performance of the decree. They aver that the appellant claims loss of the attached motor vehicle without demonstrating the actual or irreparable loss. 4. On substantial loss, it was argued that the Applicant merely alleged that storage charges were accruing on the attached motor vehicle but failed to demonstrate any actual or irreparable loss. Reliance was placed on **Machira t/a Machira & Co. Advocates v East African Standard (No. 2) [2002] KLR 63, Equity Bank Ltd v Taiga Adams Company Ltd [2006] eKLR,** and **James Wangalwa & Another v Agnes Naliaka Cheseto [2012] eKLR*,*** which states substantial loss must be specifically proved and that execution alone does not constitute substantial loss. The Respondent therefore contended that the Applicant failed to satisfy this requirement. 5. Regarding delay, counsel submitted that although the impugned ruling was delivered on 4th June 2026, the Applicant only moved the Court after execution had commenced. The delay was neither explained nor justified and demonstrated that the application was merely an afterthought prompted by the execution process. 6. On security for due performance, the Respondent argued that the Applicant failed to propose or offer any security whatsoever. They quoted the case of Congress**Rental South Africa v Kenyatta International Convention Centre; Co-operative Bank of Kenya Ltd & Another (Garnishee) [2019] eKLR**, where the Court held that the obligation to propose security rests with the applicant and should not be left to the court. Consequently, the Applicant failed to satisfy this mandatory requirement. 7. On whether the Applicant is entitled to release the motor vehicle, they submitted that the attachment of motor vehicle registration No. KDH 435G/ZG 5356 was lawful and undertaken after the Applicant had been served with all the requisite notices, including the proclamation notice and notification of sale. Following dismissal of the Applicant's application to set aside the judgment, there were no orders staying execution, thereby entitling the Respondent to proceed with execution and enjoy the fruits of the judgment. They quoted the case of **Mbirua & 24 Others v Commissioner for Cooperatives & Another [2026] KEHC 4902 (KLR),** where the Court held that execution conducted in compliance with the Auctioneers Rules should not be interfered with absent proof of illegality or procedural impropriety. It was further submitted that, should the Court order the release of the motor vehicle, the Applicant ought to bear the auctioneers' costs incurred during the execution process. 8. The Respondent states that the Applicant had failed to establish an arguable appeal or satisfy the requirement for a stay of execution and prays that the application be dismissed with costs. **Analysis and determination** 1. I have carefully considered the application before me, the affidavit by the Applicant as well as the Respondent’s opposition and the submission on record and find the main issue for determination being whether the Applicant has satisfied the conditions for grant of an order of stay of execution pending appeal. 2. The jurisdiction of this court to grant stay of execution pending appeal is found under order 42 (6)(2) of the Civil Procedure Code Rules, 2010 which gives the criteria that a court has to consider before granting the stay of execution being that the aggrieved party must demonstrate that they will suffer substantial loss if the order is not granted, that the application was filled without undue delay and finally that they have to provide security for the due performance of the decree. The principles are well settled in the celebrated court of Appeal case in **Butt v Rent Restriction Tribunal [1982] KLR 417*,*** where it was held that the power to grant a stay is discretionary and ought to be exercised in a manner that does not render an appeal nugatory while balancing the rights of a successful litigant to enjoy the fruits of his judgment. 3. Equally, in **Machira t/a Machira & Co. Advocates v East African Standard (No. 2) [2002] KLR 63,** the Court emphasised that a successful litigant should not be deprived of the fruits of his judgment without sufficient cause. 4. As stated above, the court has to balance the interests of both parties before exercising its discretion whether to stay the execution or not. The court has to first consider if the Applicant has demonstrated that they will suffer substantial loss. They contend that Motor Vehicle Registration No. KDH 435G/ZG 5356 has been attached and is used in its transport business, and that unless released, it is likely to be sold before the appeal is heard, thereby occasioning financial loss. 5. The Respondent, on the other hand, submits that the Applicant has merely alleged substantial loss without demonstrating the nature or extent of such loss. They quoted the case of **James Wangalwa & Another v Agnes Naliaka Cheseto [2012] eKLR,** where the Court held that execution of a lawful decree does not, by itself, amount to substantial loss and that an applicant must establish factors showing that execution would create a state of affairs that would irreparably affect or negate the very essence of the appeal. 6. I agree with the above court’s decision that the Applicant should not just state that they will suffer substantial loss but they have to demonstrate through evidence the loss they will suffer. The Applicant have claimed that they are in the transport industry and the continued detention of the vehicle has paralysed their business. Their appeal further contends that the Applicant was not served with summons to enter appearance, and if the appeal is heard and it succeeds, the substratum of the appeal may well be lost. 7. This court is alive to the Constitutional provision under Article 50(1) of the Constitution which grants every person the right to a fair hearing. Where an appeal raises a bona fide complaint that a party was condemned unheard owing to want of service, the court ought to exercise caution so as not to render such appeal an academic exercise through execution. 8. The second requirement is whether the application was brought without unreasonable delay. The impugned ruling at the Butali CM’s court was delivered on or about 3rd June 2026 while the present application was filed on 30th June 2026 following attachment of the Applicant's motor vehicle. The delay is approximately one month. In my view, the said delay cannot be described as inordinate. The Applicant moved the Court soon after execution commenced. I am therefore satisfied that the application was presented without unreasonable delay within the meaning of Order 42 Rule 6(2)(a) of the Civil Procedure Rules. 9. On the third issue of provision of security for the due performance of the decree. The Applicant has expressly stated its willingness to furnish such security as the court may order for the due performance of the decree. In **Focin Motorcycle Co. Limited v Ann Wambui Wangui & Another [2018] eKLR,**the court observed that the purpose of security is to guarantee the due performance of such decree or order as may ultimately be binding on the applicant. The obligation is on the applicant to offer security, but the Court retains the discretion to determine the nature and quantum thereof. 10. On whether the appeal is arguable, the Applicant’s main complaint is that it was never served with summons to enter appearance and that the ex parte judgment was therefore irregular. The trial court declined to summon the process server. An appeal raising the issue of service of process and the propriety of an ex parte judgment raises triable issues that are not frivolous. **In Githunguri v Jimba Credit Corporation Ltd [1988] KLR 838*,*** the Court of Appeal held that an arguable appeal is one which is not frivolous and which raises a bona fide point of law or fact worthy of consideration. 11. Balancing the competing interests, the Respondent is entitled to the fruits of his judgment, yet the Applicant must not be left without a remedy if its appeal succeeds. The interests of justice require that the status quo be preserved pending determination of the appeal, subject to conditions that protect the Respondent. 12. On the prayer for release of the motor vehicle, I note the Respondent’s submission that the attachment was lawful. However, in light of the findings above and the risk of sale pending appeal, it is just that the vehicle be released upon compliance with the conditions set out hereunder. The Applicant shall bear the auctioneer’s lawful charges incurred to date. 13. In the result, the Notice of Motion dated 30th June 2026 is allowed in the following terms: 14. Leave is hereby granted to the firm of Wandai Matheka & Company Advocates to come on record for the Appellant. 15. There shall be a stay of execution of the decree, warrants of attachment dated 10th June 2026, notification of sale dated 30th June 2026 and all consequential processes arising from the judgment and decree in Butali MCCC No. 13 of 2019 pending the hearing and determination of the appeal. 16. The Respondent, his servants, agents and/or auctioneers are restrained from advertising for sale, selling, transferring, alienating or otherwise dealing with Motor Vehicle Registration Number KDH 435G/ZG 5356 pending the hearing and determination of the appeal. 17. Motor Vehicle Registration Number KDH 435G/ZG 5356 shall be released to the Appellant forthwith upon payment by the Appellant of the auctioneer’s lawful charges and storage fees (if any) as assessed. 18. The stay and the orders herein are conditional upon the Appellant depositing the entire decretal sum in a joint interest-earning account in the names of the advocates for both parties within sixty (60) days from the date of this ruling. 19. In default of compliance with paragraph (e) above, the stay of execution shall automatically lapse and the Respondent shall be at liberty to proceed with execution. 20. The costs of this application shall abide the outcome of the appeal. 21. It is so ordered. 22. Mention 1.10.2026 for directions on the main appeal. 23. Right of appeal 30 days. **DATED, SIGNED AND DELIVERED IN OPEN COURT AT KAKAMEGA 31ST DAY OF JULY, 2026.** **S.MBUNGI** **JUDGE** **In the presence of:-** CA: Zilda/Velma Ms. Mwala Co. for the Appellant present online. Ms. Seika for the Respondent present online.