1. The application before the court is the Defendant’s motion dated 6 May 2026, brought under Order 22 rule 52, Order 46, and Order 51 of the Civil Procedure Rules and sections 1A, 1B, and 3A of the Civil Procedure Act, seeking, in substance, a stay of execution of the Warrants of Attachment and Sale dated 29 April 2026 and of the decree herein—pending, first, the determination of that motion and, secondly, the hearing and determination of Mombasa Civil Appeal No. E218 of 2024; alternatively, an order of status quo preserving the Applicant’s attached motor vehicles; and costs. The motion is supported by the affidavit of MAO HONGHUI, the Defendant’s Project Manager, sworn on 6th May 2026, and by his supplementary affidavit sworn on 15th May 2026 and further affidavit sworn on 22nd May 2026; and
2. In opposition to this motion is the plaintiff’s notice of preliminary objection, dated 9 May 2026, taken under Order 51 rule 14(1)(a) of the Civil Procedure Rules, by which the plaintiff contends that this court lacks jurisdiction to entertain the motion at all.
3. The application and the preliminary objection were canvassed by way of written submissions, which the learned counsel for the parties ably highlighted on 2 May 2026.
4. The background of the defendant’s application is that on 28 June 2024, the plaintiff obtained a judgment against the defendant in the sum of Kshs 100,112,768/= together with interest. On 19 December 2024, this Honourable Court granted a conditional stay of execution pending appeal on terms that the defendant would deposit the entire decretal sum of Kshs 100,112,768/= in an escrow account in the joint names of counsel on record within 60 days from the date of the order and that in default, execution would proceed. The Defendant did not comply and, instead, moved the Court of Appeal under rule 5(2)(b) of that court’s Rules in Mombasa Civil Appeal No. E218 of 2024. On 3 March 2025, the parties compromised the application before the Court of Appeal by a conditional consent, according to which the defendant was required to secure the decretal sum with an insurance bond from CIC Insurance within 14 days. Even then, the defendant failed to comply with the consent and successfully persuaded the Court of Appeal that CIC Insurance did not offer that class of bond.
5. On 7 July 2025, the plaintiff applied to the Court of Appeal to have the consent rescinded or varied so that it could proceed with execution. The Court of Appeal allowed the application on 25 March 2026 and varied the consent as follows:
i. The [Defendant] do offer an insurance bond equal to the decretal sum from any other reputable insurance company acceptable to both parties other than CIC.
ii. In the alternative, the [Defendant] do execute a bank guarantee equal to the decretal sum from a reputable bank acceptable by both parties.
iii. The [Defendant] do comply with either of the orders ((i) or (ii)) above within 30 days of this Ruling, failure to which the [Plaintiff] shall be at liberty to execute.
(I note that term (iii), as typed, reads “the respondent shall be at liberty to execute.” Read in context, that is plainly a slip of the pen: the “respondent” before the Court of Appeal was the defendant/judgment debtor, who could have no interest in executing against itself. The clear and only sensible construction—and the one both parties have adopted before me—is that it is the plaintiff/decree holder who was to be at liberty to execute upon default.
12. The 30 days ran from 25th March 2026 and expired on or about 25th April 2026. That reckoning is not in dispute; indeed, it is the Defendant’s own. The Defendant did not comply within that window. In wake of this default, the Plaintiff requested and obtained the decree, and warrants of attachment and sale were issued on 29 April 2026, directed at some twenty-four motor vehicles belonging to the Defendant. In the meantime, and particularly on 6 May 2026, the Defendant procured a bank guarantee from the Bank of Africa Kenya Limited for Kshs 158,954,473/=, expressed to be in favour of the Plaintiff. On that very same day, the applicant filed the present Motion in this Court.
15. When I retreated to write the ruling, I noted from the record that the judgment whose execution is sought to be stayed was rendered by my learned sister, Wangari J. In these circumstances, Wangari, J is the appropriate judge to handle this application. Accordingly, I direct that this matter be placed before Wangari J on 22 July for directions on its disposal. In the meantime, the ex parte order I granted when the application was brought to my attention under a certificate of urgency is hereby discharged.
2. In opposition to this motion is the plaintiff’s notice of preliminary objection, dated 9 May 2026, taken under Order 51 rule 14(1)(a) of the Civil Procedure Rules, by which the plaintiff contends that this court lacks jurisdiction to entertain the motion at all.
3. The application and the preliminary objection were canvassed by way of written submissions, which the learned counsel for the parties ably highlighted on 2 May 2026.
4. The background of the defendant’s application is that on 28 June 2024, the plaintiff obtained a judgment against the defendant in the sum of Kshs 100,112,768/= together with interest. On 19 December 2024, this Honourable Court granted a conditional stay of execution pending appeal on terms that the defendant would deposit the entire decretal sum of Kshs 100,112,768/= in an escrow account in the joint names of counsel on record within 60 days from the date of the order and that in default, execution would proceed. The Defendant did not comply and, instead, moved the Court of Appeal under rule 5(2)(b) of that court’s Rules in Mombasa Civil Appeal No. E218 of 2024. On 3 March 2025, the parties compromised the application before the Court of Appeal by a conditional consent, according to which the defendant was required to secure the decretal sum with an insurance bond from CIC Insurance within 14 days. Even then, the defendant failed to comply with the consent and successfully persuaded the Court of Appeal that CIC Insurance did not offer that class of bond.
5. On 7 July 2025, the plaintiff applied to the Court of Appeal to have the consent rescinded or varied so that it could proceed with execution. The Court of Appeal allowed the application on 25 March 2026 and varied the consent as follows:
i. The [Defendant] do offer an insurance bond equal to the decretal sum from any other reputable insurance company acceptable to both parties other than CIC.
ii. In the alternative, the [Defendant] do execute a bank guarantee equal to the decretal sum from a reputable bank acceptable by both parties.
iii. The [Defendant] do comply with either of the orders ((i) or (ii)) above within 30 days of this Ruling, failure to which the [Plaintiff] shall be at liberty to execute.
(I note that term (iii), as typed, reads “the respondent shall be at liberty to execute.” Read in context, that is plainly a slip of the pen: the “respondent” before the Court of Appeal was the defendant/judgment debtor, who could have no interest in executing against itself. The clear and only sensible construction—and the one both parties have adopted before me—is that it is the plaintiff/decree holder who was to be at liberty to execute upon default.
12. The 30 days ran from 25th March 2026 and expired on or about 25th April 2026. That reckoning is not in dispute; indeed, it is the Defendant’s own. The Defendant did not comply within that window. In wake of this default, the Plaintiff requested and obtained the decree, and warrants of attachment and sale were issued on 29 April 2026, directed at some twenty-four motor vehicles belonging to the Defendant. In the meantime, and particularly on 6 May 2026, the Defendant procured a bank guarantee from the Bank of Africa Kenya Limited for Kshs 158,954,473/=, expressed to be in favour of the Plaintiff. On that very same day, the applicant filed the present Motion in this Court.
15. When I retreated to write the ruling, I noted from the record that the judgment whose execution is sought to be stayed was rendered by my learned sister, Wangari J. In these circumstances, Wangari, J is the appropriate judge to handle this application. Accordingly, I direct that this matter be placed before Wangari J on 22 July for directions on its disposal. In the meantime, the ex parte order I granted when the application was brought to my attention under a certificate of urgency is hereby discharged.