'1. The Court below delivered a ruling on 7th March 2025 directing that the appellant’s directors show cause why they should not be held in contempt of Court for allegedly disobeying Court orders. Being aggrieved by the said decision, they filed the appeal dated 19th March 2025.
2. The appellant/applicant filed the instant application for stay of proceedings, stay of execution, and for costs to be in the cause. The application is dated 20th March 2025.
3. Upon considering the application exparte, this Court issued interim orders in terms of prayers 2 and 3 of the said motion. What is pending at this stage is prayer 4 (for stay of execution of the ruling of 7th March 2025 and stay of further proceedings in Mombasa MCCC Misc No E274 of 2023 and determination as to whether costs are payable, and by whom.
4. The 1st respondent filed a Notice of Preliminary Objection, which this Court considered in a ruling delivered on 25th August 2025. In addition, the 1st Respondent filed Grounds of Opposition in which it averred that the application was without merit and should be dismissed. It was stated in the said grounds that the decision of the Court below was sound and ought not to be disturbed.
5. On 6th October 2025, this court issued directions on how the stay application would be argued. The first respondent chose to rely entirely on the grounds of opposition. The appellant/applicant submitted written submissions dated 6th November 2025.
6. In its submissions, the appellant/applicant’s counsel urged that her client is a duly authorized customs bonded container freight station licensed by the Kenya Revenue Authority to receive, consolidate, deconsolidate, and manage import and export consignments. She urged that the 1st Respondent imported a motor vehicle registration number KDJ 719W, Toyota Vanguard, through the 4th Respondent, but never produced a bill of lading for verification by the appellant/applicant to facilitate its release. The applicant urged that it could not release the motor vehicle without the authorization of the 3rd and 4th Respondents.
7. Counsel submitted that unless a stay were granted, the appellant/applicant’s director would suffer substantial loss. It was urged that the application was filed without undue delay. On the 3rd condition for grant of stay, it was urged that as the matter does not involve a money decree and since the order sought to be stayed is quasi criminal in nature, the Court ought to exercise its discretion so as not to condemn the Applicant/Appellant from the seat of justice.
8. Regarding the stay of proceedings, it was urged that the Court ought to grant a stay of proceedings, given the manner in which the Court below conducted the proceedings. Reliance was placed on the case of Kenya Wildlife Service v Joseph Kobia[2019]KEHC 10507(KLR).
9. The appellant/applicant therefore prayed that the application be allowed as prayed.
10. I have considered the grounds of opposition in the preceding paragraphs of this decision. I shall not rehash them here.
11. I have carefully considered the application dated 20th March 2025, the responses thereto, as well as the submissions on record.
12. Order 42 Rule 6(2) of the Civil Procedure Rules states that:-
“No order for stay of execution shall be made under subrule (1) unless—
(a) the court is satisfied that substantial loss may result to the applicant unless the order is made and that the application has been made without unreasonable delay; and
(b) 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.”
13. To succeed, an applicant must show that it will suffer substantial loss unless a stay is granted, that the application was filed without undue delay, and give security for the due performance of the decree.
14. The three elements must all be present together for an order of stay of execution to issue.
15. Stay of proceedings, on the other hand, is an extraordinary remedy that should be granted sparingly and only in exceptional circumstances.
16. Has the applicant met the requisite tests in respect of the two prayers? Should the orders sought issue?
17. I note that the execution sought to be stayed is in respect of committal to civil jail of the directors of the applicants for allegedly disobeying Court orders. Does this amount to substantial loss?
18. In the case of James Wangalwa & another v Agnes Cheseto [2012] KEHC 1094 (KLR), it was held that:-
“11. No doubt, in law, the fact that the process of execution has been put in motion, or is likely to be put in motion, by itself, does not amount to substantial loss. Even when execution has been levied and completed, that is to say, the attached properties have been sold, as is the case here, does not in itself amount to substantial loss under Order 42 Rule 6 of the CPR. This is so because execution is a lawful process.
The applicant must establish other factors which show that the execution will create a state of affairs that will irreparably affect or negate the very essential core of the Applicant as the successful party in the appeal. This is what substantial loss would entail, a question that was aptly discussed in the case of Silverstein N. Chesoni [2002] 1KLR 867, and also in the case of Mukuma V Abuoga quoted above. The last case, referring to the exercise of discretion by the High Court and the Court of Appeal in the granting stay of execution, under Order 42 of the CPR and Rule 5(2) (b) of the Court of Appeal Rules, respectively, emphasized the centrality of substantial loss thus:“…the issue of substantial loss is the cornerstone of both jurisdictions. Substantial loss is what has to be prevented by preserving the status quo because such loss would render the appeal nugatory.”With this observation, of course, a frivolous appeal cannot in practical terms be rendered nugatory.”
19. In my view, loss of liberty is a substantial loss. When a party is punished for contempt by being imprisoned, the loss of liberty cannot be undone. In my view, the first test is met.
20. The application was filed without undue delay, as it was filed within 14 days. Regarding the third test, it is my view that, given the nature of the matter, this Court can order the appellant/applicant to provide security.
21. I will now turn to prayer for a stay of proceedings. It is the view of this Court that a stay of proceedings is a grave remedy that should be granted sparingly and only in exceptional circumstances. The reason for this is that the order of stay of proceedings has the effect of clogging the wheels of justice and may obstruct the constitutional principle that justice must be done without undue delay. Notwithstanding the foregoing, Courts do issue orders staying proceedings in appropriate cases.
22. In Turbo Highway Eldoret Ltd v Muniu (Civil Appeal E040 of 2021) [2022] KEHC 10197 (KLR), it was held that:-
“21. In short, a stay of proceedings is a radical remedy which is only granted in very exceptional circumstances. In the words of Ringera J. in Global Tours & Travels Limited (Nairobi HC Winding Up Cause No. 43 of 2000): As I understand the law, whether or not to grant a stay of proceedings or further proceedings on a decree or order appealed from is a matter of judicial discretion to be exercised in the interest of Justice.....the sole question is whether it is in the interest of justice to order a stay of proceedings and if it is, on what terms it should be granted. In deciding whether to order a stay, the court should essentially weigh the pros and cons of granting or not granting the order. And in considering those matters, it should bear in mind such factors as need for expeditious disposal of cases, the prima facie merits of the intended appeal, in the sense of not whether it will probably succeed or not but whether it is an arguable one, the scarcity and optimum utilization of judicial time and whether the application has been brought expeditiously (emphasis added)
22. What emerges from the discussion above is that the grant of a stay of proceedings pending the hearing of an interlocutory appeal in civil matters is a rare and exceptional remedy.”
23. In this case, there is, what appears to be, a genuine concern about the manner in which the proceedings in the Court below were conducted. That concern deserves scrutiny by this Court. In my view, therefore, there is a case for a stay of proceedings in this matter.
24. The upshot of the foregoing is that the application is merited. I allow the same and order that the execution of the orders of the court below be stayed. I also order the stay of proceedings.
25. Consequently, I make the following orders:-
1. The application dated 20th March 2025 is hereby allowed strictly on condition that the appellant/applicant deposits the sum of Kes.1,000,000/- in a joint interest-earning account in the names of the appellant’s and the 1st Respondent’s counsels;
2. In the interest of justice, the appeal will be fast-tracked.
26. Costs shall be in the cause.
27. It is so ordered.
Dated and signed at Mombasa, this 3rd day of December 2025. Delivered virtually through Microsoft TEAMS.
'
2. The appellant/applicant filed the instant application for stay of proceedings, stay of execution, and for costs to be in the cause. The application is dated 20th March 2025.
3. Upon considering the application exparte, this Court issued interim orders in terms of prayers 2 and 3 of the said motion. What is pending at this stage is prayer 4 (for stay of execution of the ruling of 7th March 2025 and stay of further proceedings in Mombasa MCCC Misc No E274 of 2023 and determination as to whether costs are payable, and by whom.
4. The 1st respondent filed a Notice of Preliminary Objection, which this Court considered in a ruling delivered on 25th August 2025. In addition, the 1st Respondent filed Grounds of Opposition in which it averred that the application was without merit and should be dismissed. It was stated in the said grounds that the decision of the Court below was sound and ought not to be disturbed.
5. On 6th October 2025, this court issued directions on how the stay application would be argued. The first respondent chose to rely entirely on the grounds of opposition. The appellant/applicant submitted written submissions dated 6th November 2025.
6. In its submissions, the appellant/applicant’s counsel urged that her client is a duly authorized customs bonded container freight station licensed by the Kenya Revenue Authority to receive, consolidate, deconsolidate, and manage import and export consignments. She urged that the 1st Respondent imported a motor vehicle registration number KDJ 719W, Toyota Vanguard, through the 4th Respondent, but never produced a bill of lading for verification by the appellant/applicant to facilitate its release. The applicant urged that it could not release the motor vehicle without the authorization of the 3rd and 4th Respondents.
7. Counsel submitted that unless a stay were granted, the appellant/applicant’s director would suffer substantial loss. It was urged that the application was filed without undue delay. On the 3rd condition for grant of stay, it was urged that as the matter does not involve a money decree and since the order sought to be stayed is quasi criminal in nature, the Court ought to exercise its discretion so as not to condemn the Applicant/Appellant from the seat of justice.
8. Regarding the stay of proceedings, it was urged that the Court ought to grant a stay of proceedings, given the manner in which the Court below conducted the proceedings. Reliance was placed on the case of Kenya Wildlife Service v Joseph Kobia[2019]KEHC 10507(KLR).
9. The appellant/applicant therefore prayed that the application be allowed as prayed.
10. I have considered the grounds of opposition in the preceding paragraphs of this decision. I shall not rehash them here.
11. I have carefully considered the application dated 20th March 2025, the responses thereto, as well as the submissions on record.
12. Order 42 Rule 6(2) of the Civil Procedure Rules states that:-
“No order for stay of execution shall be made under subrule (1) unless—
(a) the court is satisfied that substantial loss may result to the applicant unless the order is made and that the application has been made without unreasonable delay; and
(b) 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.”
13. To succeed, an applicant must show that it will suffer substantial loss unless a stay is granted, that the application was filed without undue delay, and give security for the due performance of the decree.
14. The three elements must all be present together for an order of stay of execution to issue.
15. Stay of proceedings, on the other hand, is an extraordinary remedy that should be granted sparingly and only in exceptional circumstances.
16. Has the applicant met the requisite tests in respect of the two prayers? Should the orders sought issue?
17. I note that the execution sought to be stayed is in respect of committal to civil jail of the directors of the applicants for allegedly disobeying Court orders. Does this amount to substantial loss?
18. In the case of James Wangalwa & another v Agnes Cheseto [2012] KEHC 1094 (KLR), it was held that:-
“11. No doubt, in law, the fact that the process of execution has been put in motion, or is likely to be put in motion, by itself, does not amount to substantial loss. Even when execution has been levied and completed, that is to say, the attached properties have been sold, as is the case here, does not in itself amount to substantial loss under Order 42 Rule 6 of the CPR. This is so because execution is a lawful process.
The applicant must establish other factors which show that the execution will create a state of affairs that will irreparably affect or negate the very essential core of the Applicant as the successful party in the appeal. This is what substantial loss would entail, a question that was aptly discussed in the case of Silverstein N. Chesoni [2002] 1KLR 867, and also in the case of Mukuma V Abuoga quoted above. The last case, referring to the exercise of discretion by the High Court and the Court of Appeal in the granting stay of execution, under Order 42 of the CPR and Rule 5(2) (b) of the Court of Appeal Rules, respectively, emphasized the centrality of substantial loss thus:“…the issue of substantial loss is the cornerstone of both jurisdictions. Substantial loss is what has to be prevented by preserving the status quo because such loss would render the appeal nugatory.”With this observation, of course, a frivolous appeal cannot in practical terms be rendered nugatory.”
19. In my view, loss of liberty is a substantial loss. When a party is punished for contempt by being imprisoned, the loss of liberty cannot be undone. In my view, the first test is met.
20. The application was filed without undue delay, as it was filed within 14 days. Regarding the third test, it is my view that, given the nature of the matter, this Court can order the appellant/applicant to provide security.
21. I will now turn to prayer for a stay of proceedings. It is the view of this Court that a stay of proceedings is a grave remedy that should be granted sparingly and only in exceptional circumstances. The reason for this is that the order of stay of proceedings has the effect of clogging the wheels of justice and may obstruct the constitutional principle that justice must be done without undue delay. Notwithstanding the foregoing, Courts do issue orders staying proceedings in appropriate cases.
22. In Turbo Highway Eldoret Ltd v Muniu (Civil Appeal E040 of 2021) [2022] KEHC 10197 (KLR), it was held that:-
“21. In short, a stay of proceedings is a radical remedy which is only granted in very exceptional circumstances. In the words of Ringera J. in Global Tours & Travels Limited (Nairobi HC Winding Up Cause No. 43 of 2000): As I understand the law, whether or not to grant a stay of proceedings or further proceedings on a decree or order appealed from is a matter of judicial discretion to be exercised in the interest of Justice.....the sole question is whether it is in the interest of justice to order a stay of proceedings and if it is, on what terms it should be granted. In deciding whether to order a stay, the court should essentially weigh the pros and cons of granting or not granting the order. And in considering those matters, it should bear in mind such factors as need for expeditious disposal of cases, the prima facie merits of the intended appeal, in the sense of not whether it will probably succeed or not but whether it is an arguable one, the scarcity and optimum utilization of judicial time and whether the application has been brought expeditiously (emphasis added)
22. What emerges from the discussion above is that the grant of a stay of proceedings pending the hearing of an interlocutory appeal in civil matters is a rare and exceptional remedy.”
23. In this case, there is, what appears to be, a genuine concern about the manner in which the proceedings in the Court below were conducted. That concern deserves scrutiny by this Court. In my view, therefore, there is a case for a stay of proceedings in this matter.
24. The upshot of the foregoing is that the application is merited. I allow the same and order that the execution of the orders of the court below be stayed. I also order the stay of proceedings.
25. Consequently, I make the following orders:-
1. The application dated 20th March 2025 is hereby allowed strictly on condition that the appellant/applicant deposits the sum of Kes.1,000,000/- in a joint interest-earning account in the names of the appellant’s and the 1st Respondent’s counsels;
2. In the interest of justice, the appeal will be fast-tracked.
26. Costs shall be in the cause.
27. It is so ordered.
Dated and signed at Mombasa, this 3rd day of December 2025. Delivered virtually through Microsoft TEAMS.
'