https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8477

Osore v Boera & another (Miscellaneous Application E193 of 2025) [2026] KEHC 8477 (KLR) (Civ) (22 May 2026) (Ruling) Neutral citation: [2026] KEHC 8477 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Law Courts) Civil Miscellaneous Application E193 of 2025 AC Mrima, J May 22, 2026 Between Winston James Osore Applicant and Chris Nyamweya Boera 1st Respondent Joshua Musau 2nd Respondent Ruling Background: 1.The matter before this Court stems from the proceedings in Milimani Chief Magistrates Commercial Magistrate Court Civil Suit No. E4968 of 2022, (hereinafter referred to as ‘the suit’) wherein the 1st Respondent, Chris Nyamweya Boera, obtained a decree against the Applicant, Winston James Osore, on 24th October 2024 for the sum of Kshs. 178,153.26. 2.On 18th February 2025, the Applicant filed an application in the suit seeking to set aside the judgment and decree on the basis of non-service of summons. On 21st August 2025, the Court dismissed the application, finding that service was properly effected. Subsequently, the 1st Respondent obtained warrants of attachment and sale of the Applicant’s movable property to realize the decretal sum. 3.Aggrieved by the dismissal of the application, the Applicant filed the present application seeking to stay the execution of the judgment and decree pending the hearing and determination of his intended appeal. 4.The application was vehemently opposed, and was heard by way of written submissions, hence, this ruling. The Application: 5.The application was by way of a Notice of Motion dated 1st September 2025 and it sought the following orders: -i.Spent.ii.The annexed Memorandum of Appeal be admitted and deemed as properly served.iii.Pending the inter partes hearing and determination of this Application, this Honourable Court do issue a stay of execution and enforcement of the Decree, Warrants and the Ruling dated 21st August, 2025 by Hon. William Lopokoiyit in Nairobi MCCC E4968 of 2022: Chris Nyamweya Boera -v- Winston James Osore & 2 others.iv.Pending the hearing and determination of the intended appeal before the High Court of Kenya at Nairobi, this Honourable Court be pleased to stay execution and enforcement of the Ruling dated 21st August, 2025.v.Cost of the application. 6.The application was supported by the affidavit of Winston James Osore, sworn on 1st September 2025. He deposed that the trial Court arbitrarily dismissed his application to set aside the judgment without lawful justification, failing to appreciate the lack of service. It was his case that he is apprehensive the 1st Respondent will execute the decree and warrants of attachment, rendering his intended appeal nugatory and causing him substantial loss and hardship. The Submissions: 7.In his submissions dated 10th November 2025, the Applicant claimed that the judgment entered against him was irregular as he was never served with summons to enter appearance. Relying on James Kanyiita Nderitu & another -vs- Marios Philotas Ghikas & another [2016] eKLR, he argued that an irregular default judgment must be set aside ex debito justitiae as a matter of right. 8.The Applicant further cited the case of Sangram Singh -vs- Election Tribunal, Koteh, AIR 1955 SC 664 to emphasize the fundamental principle of natural justice that no man should be condemned unheard, and Frigonken Ltd -vs- Value Pak Food Ltd, HCCC NO. 424 of 2010 to reiterate the Court’s judicial duty to set aside irregular judgments to uphold the integrity of the judicial process. 9.The Applicant urged the Court to exercise its discretionary power to meet the ends of justice. To that end, he referred Court to the longstanding decision of Shah -vs- Mbogo & Another [1976] E.A 116 and Mureithi Charles & another -vs- Jacob Atina Nyagesuka [2022] eKLR. He argued that he was completely unaware of the suit until he was served with proclamation notices. 10.On costs, the Applicant cited the authority in Jasbir Singh Rai & 3 others -vs- Tarlochan Singh Rai & 4 others, Sup Ct Petition No 4 of 2012; [2014] eKLR, to advance the legal position that costs should follow the event. 11.In the end, the Applicant prayed that the application be allowed as prayed. The Respondents’ case: 12.The 1st Respondent opposed the application through a Replying Affidavit sworn by Chris Nyamweya Boera on 23rd September 2025. He deposed that the application is a non-starter, an abuse of the Court process, and an unmerited tactic meant to defeat the quest for justice. He averred that the application is wrongly instituted as a miscellaneous application instead of a substantive appeal, emphasizing that the Applicant was well within time to file a substantive appeal. 13.The 1st Respondent further deponed that the trial Court had already considered the issue of service and conclusively found it to be properly effected and yielded lawful warrants of attachment to realize the decretal sum. He asserted that the mere filing of a memorandum of appeal does not operate as a bar to execution and that the Applicant failed to demonstrate how he is likely to suffer great prejudice or substantial loss. The Submissions: 14.The 1st Respondent urged his case further through written submissions dated 21st October 2025. It was his case that the Applicant’s prayers are unclear regarding whether he is seeking to file an appeal out of time or an extension of time. 15.In view of Section 79G of the Civil Procedure Act which granted the Applicant right of appeal within 30 days, the 1st Respondent submitted that the he (the Applicant) ought to have filed the appeal as of right instead of filing the instant application. The 1st Respondent relied on the Supreme Court’s pronouncement in Nicholas Kiptoo Arap Korir Salat - vs IEBC & 7 Others, (2014) eKLR to outline the strict principles for the extension of time, arguing that no such basis was laid. Further, relying on Kenya Red Cross Society v Mbondo Katheke Mwania [2019] eKLR, he submitted that a party cannot rely on an awkward situation of its own making to seek favourable court orders. 16.On the prayer for stay of execution, the 1st Respondent submitted that the Applicant entirely failed to meet the mandatory conditions stipulated under Order 42 Rule 6 of the Civil Procedure Rules. He claimed the Applicant demonstrated no substantial loss, provided no sufficient cause, and offered no security for the grant of stay orders. 17.The Respondents urged this Court to dismiss the application with costs. Analysis and Determination: 18.Having considered the application, the response thereto, and the rival written submissions, the following issues crystalize for determination: -i.Whether the Memorandum of Appeal should be admitted.ii.Whether the Applicant meets the conditions for the grant of a stay of execution pending appeal. 19.A consideration of the above issue follows. Whether the Memorandum of Appeal should be admitted: 20.Section 79G of the Civil Procedure Act provides a 30-day window for lodging an appeal from a subordinate Court. The impugned ruling was delivered on 21st August 2025. The Applicant filed this Miscellaneous Application and the annexed Memorandum of Appeal on 1st September 2025. Therefore, the appeal was initiated well within the statutory timelines. 21.As the 1st Respondent correctly noted in his submissions, an appeal against an order refusing to set aside a default judgment lies as of right. The prayer to admit the appeal or deem it properly served is, therefore, legally superfluous as no extension of time was required. However, as pointed out by the Respondents, it was imperative that the Applicant files a substantive appeal instead of a Miscellaneous application. Whether the application meets the conditions for the grant of a stay of execution pending appeal: 22.The law governing stay of execution pending appeal is anchored in Order 42 Rule 6 of the Civil Procedure Rules, which sets out the principles upon which a Court can exercise its discretion on a party seeking stay of execution. The provisions establish the following principles: -(i)That substantial loss may result to the Applicant unless the order is made(ii)That the application has been made without unreasonable delay; and(iii)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. 23.In Civil Application Nai 6 of 1979, Butt -vs- Rent Restriction Tribunal [1979] eKLR, the Court of Appeal while referring to the decision of Bret, LJ in Wilson v Church (No 2) 12 Ch D (1879) 454 at p 459 observed as hereunder;….. It is in the discretion of the court to grant or refuse a stay but what has to be judged in every case is whether there are or not particular circumstances in the case to make an order staying execution. It has been said that the court as a general rule ought to exercise its best discretion in a way so as not to prevent the appeal, if successful from being nugatory, per Brett, LJ in Wilson v Church (No 2) 12 Ch D (1879) 454 at p 459. In the same case, Cotton LJ said at p 458:”… I will state my opinion that when a party is appealing, exercising his undoubted right of appeal, this court ought to see that the appeal, if successful, is not nugatory. 24.With the foregoing legal guidance, this Court will now apply the principles to the instant application. While the application was undoubtedly made without unreasonable delay, the Applicant struggles on the remaining two limbs. 25.The Applicant’s primary contention for substantial loss is the impending attachment and sale of his properties pursuant to the warrants issued to realize the sum of Kshs. 193,123.99. Since the appeal was filed in time, albeit in a wrongful manner, and the Applicant contends infringement of his Article 50 rights, and in noting that the trial Court has found the Applicant was properly served, this Court finds that in the unique circumstances of this case, it is imperative to strike a balance between the competing interests and maintain the status quo pending the determination of the appeal. 26.To that end, the application conditionally succeeds. Disposition: 27.Consequently, the following final orders hereby issue:(a)The Applicant shall file and serve a Memorandum of Appeal in a substantive appeal file within 7 days of this Order.(b)An order of stay of execution of the judgment and decree in Nairobi MCCC E4968 of 2022 is hereby granted pending the filing and determination of the appeal on condition that the decretal sum shall be deposited in Court within 30 days of order [a] above. For clarity, the deposit shall be made in the appeal file.(c)In the event of default in Order [a] and/or [b] above, the order of stay of execution shall automatically lapse and the Respondents be at liberty to levy execution.(d)The costs of this application shall be in the appeal.(e)This file is hereby marked as Closed.Orders accordingly. DELIVERED, DATED AND SIGNED AT NAIROBI THIS 22ND DAY OF MAY, 2026.A.C. MRIMAJUDGERuling virtually delivered in the presence of:Mr. Sam Gad, Learned Counsel for the Applicant.No appearance for, Learned Counsel for the 1st Respondent.No appearance for the 2nd Respondent.Michael/Amina – Court Assistants.