The Applicants Case
Caleb Ngwena and Millicent Adhiambo have come to this court vide a notice of motion brought under Article 50 of the Constitution of Kenya, 2010, Section IA, 1B, 3A of the Civil Procedure Act Cap 21 Laws of Kenya Order 9 Rule 9, Order 22 Rule 22 (1) of the Civil Procedure Rules, 2010 seeking orders that there be a stay of execution of the judgment and any subsequent Orders issued thereof pending hearing and determination of the intended appeal. The cost of this Application to be in the cause.
The application is based on the following grounds that judgment was delivered on this matter on the 28th day of September, 2021. The applicants having been dissatisfied with the outcome have filed a notice of appeal and have requested copies of the judgment and certified copies of proceedings to enable them file its record of appeal in the court of appeal. That there is no prejudice that will be occasioned to the defendant if the orders sought are granted.
In the supporting affidavit, the applicant states that he is aware that judgment was delivered on this matter on the 28th September, 2021 and having been dissatisfied with the same he instructed his advocate on record to file an appeal and to initiate the process of appeal in the Court of Appeal the appellant must first file Notice of Appeal which has been done by his Advocate. His advocate on record also applied for copy of the judgment and copy of certified proceedings and subsequently filed a record of Appeal in the Court of Appeal. The appeal before court of appeal is based on the issue of costs to the Respondents among other grounds. The Respondent has initiated the execution process where the Respondent has taxed their bill of costs to prepare decree for purpose of execution. That unless the Respondent is restrained from executing against the Applicant then the appeal will be rendered nugatory. There is no prejudice that will be occasioned to the respondent if a stay of execution is granted.
The applicant submits that the application was made without inordinate or unreasonable delay. The delay is explained and excusable since after the ruling, the Applicants promptly filed a Notice of Appeal and applied for proceedings. The appeal process in Kenya is document-driven and parties are dependent on the Court's registry for preparation and supply of typed proceedings. Courts have consistently held that where delay is explained by administrative lapses in the preparation of proceedings, the same cannot be visited upon a litigant. The applicant relies on the case of Nicholas Kiptoo Arap Korir Salat v IEBC & 7 Others [2014] eKLR — the Supreme Court held that the right of appeal should not be denied on the basis of procedural technicalities, further in the case of Mwangi v Kenya Airways Ltd [20031 KLR 486 — the Court of Appeal stated that delay must be explained to the satisfaction of the Court. The Applicants have been actively pursuing their right of appeal and should not be penalized for circumstances outside their control.
On whether the Applicants have demonstrated substantial loss, the Respondent has taxed its Bill of Costs and is poised to execute against the Applicants. Execution of a decree for costs would expose the Applicants to financial prejudice which, if recovered prematurely, may never be refunded should the appeal succeed. The Court of Appeal in Kenya Shell Ltd v Benjamin Karuga Kibiru & Another [1986] KLR 410 held that substantial loss is the cornerstone for granting stay, and once it is shown that execution would render the appeal nugatory, stay must be granted. The applicant further relies on the case of Butt v Rent Restriction Tribunal [19791.
The Respondents Case
The respondent filed grounds of opposition to notice of motion for stay dated 2nd April 2025 whose import is that there was no judgment entered in these proceedings either on 28th September 2021 or at any other date at all whose execution the applicant seeks to stay. What happened on 28th September 2021 was delivery of a ruling by the court, upholding a preliminary objection raised by Memphis Limited on 30th April 2021 with the consequent result that petition No. 10 of 2021 was struck out. Once the petition was struck out, it remained struck out, and there is nothing thereon whose execution can be stayed.
Stay of execution pending appeal is governed by the provisions of order 42 rule 6 of the civil procedure rules. Rule 6[2] makes it a requirement that before any stay orders can be given, the applicant must show:
“…. That the application has been made without unreasonable delay”.
According to the respondent, from September 2021 to date is a period of nearly 4 years. This length of time is beyond inordinate delay. It is actually unreasonable delay which effectively offends the requirements of Rule 6(2) cited above.
The catalogue and litany of defects attendant to the present application are legion. The respondent cites examples such as the fact the applicant has not proposed or offered any security for the performance of any of the orders it seeks, in the event the same are granted and that the execution that is in place related to recovery of Taxed costs. This is a money Decree. Therefore the principles that apply in applications seeking to stay execution of money Decrees apply fully in this matter.
This application is a desperate attempt by the Applicant to forestall recovery of properly taxed costs. Unless the Applicant is willing to deposit the entire sum in Court, then his application should be refused.
The respondent submits that there was no Judgment entered in these proceedings either on 28th September 2021 or at any other date at all whose execution the Applicant seeks to stay. What happened on 28th September 2021 was delivery of a Ruling by the Court, upholding a Preliminary Objection raised by Memphis Limited on 30th April 2021 with the consequent result that Petition No 10 of 2021 was struck out. Once that Petition was struck out, it remained struck out, and there is nothing thereon whose execution can be stayed.
Stay of execution Pending Appeal is governed by the provisions of Order 42 Rule 6 of the Civil Procedure Rules. Rule 6(2) makes it a requirement that before any stay orders can be given, the Applicant must show:
“…….that the application has been made without unreasonable delay".
From September 2021 to date is a period of nearly 4 years. This length of time is beyond inordinate delay. It is actually unreasonable delay which effectively offends the requirements of Rule 6(2) cited above.
There is another requirement imposed by Order 42 Rule 6(2) (b) as follows:
(2) No order for stay of execution shall be made under subrule(1) unless [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.
The Decree which is being executed arises from a duly taxed Bill of costs. This fact is recognized by the Applicant who, at paragraph 6 of his Supporting Affidavit, states that the Respondent has initiated the execution process.
Analysis and Determination
I have considered the application and the reply by the respondent together with the submissions on record and do find the petition was struck out on the 28th September 2021. What is being appealed from is a ruling striking out the petition but not a positive judgment of the court. The applicant is appealing from a negative order that cannot be stayed and therefore application is incompetent ab- initio.
This court is persuaded by the holding in Malombe v Ngui (Civil Appeal E199 of 2024) [2024] KEHC 15167 (KLR) (28 November 2024) that:-
“This Court has a duty to balance the rights of both parties. I note that the said order was not annexed in full thus the court cannot address its mind fully to it. The question that begs is whether this court can issue stay of execution on a negative order. This issue was discussed in the case of Chege v Gachora (Civil Appeal 265 of 2023) [2024] KEHC 1994 (KLR) where the court stated as follows;“In essence the impugned ruling is a negative order and is incapable of execution. This principle was enunciated by the Court of Appeal in Co-operative Bank of Kenya Limited v Banking Insurance & Finance Union (Kenya) [2015] eKLR where the court held as follows:-An order for stay of execution (pending appeal) is ordinarily an interim order which seeks to delay the performance of positive obligations that are set out in a decree as a result of a judgment. The delay of performance presupposes the existence of a situation to stay – called a positive order – either an order that has not been complied with or has partly been complied with.
20. Similarly in Kenya Commercial Bank Limited v Tamarind Meadows Limited & 7 Others [2016] eKLR the Court of Appeal expounded on stay of execution stating:-In Kanwal Sarjit Singh Dhiman v Keshavji Juvraj Shah [2008] eKLR the Court of Appeal while dealing with a similar application for stay of a negative order, held as follows:-The 2nd prayer in the application is for stay (of execution) of the order of the superior court made on 18th December 2006. The order of 18th December 2006 merely dismissed the application for setting aside the judgment with costs. By the order, the superior court did not order any of the parties to do anything or refrain from doing anything or to pay any sum. It was thus, a negative order which is incapable of execution save in respect of costs only.The same reasoning was applied in the case of Raymond M. Omboga v Austine Pyan Maranga (supra) that a negative order is one that is incapable of execution, and thus, incapable of being stayed. This is what the Court had to say on the matter:-The order dismissing the application is in the nature of a negative order and is incapable of stay of execution, save perhaps, for costs and such order is incapable of stay. Where there is no positive order made in favour of the respondent which is incapable of execution, there can be no stay of execution of such an order….The applicant seeks to appeal against the order dismissing his application. This is not an order capable of being stayed because there is nothing the applicant has lost. The refusal simply means that the applicant stays in the situation he was in before coming to court and therefore the issues of substantial loss that he is likely to suffer and or the appeal being rendered nugatory does not arise….”
I do find that the application before incompetent as there is no positive order to be stayed. The application is dismissed with costs.
Caleb Ngwena and Millicent Adhiambo have come to this court vide a notice of motion brought under Article 50 of the Constitution of Kenya, 2010, Section IA, 1B, 3A of the Civil Procedure Act Cap 21 Laws of Kenya Order 9 Rule 9, Order 22 Rule 22 (1) of the Civil Procedure Rules, 2010 seeking orders that there be a stay of execution of the judgment and any subsequent Orders issued thereof pending hearing and determination of the intended appeal. The cost of this Application to be in the cause.
The application is based on the following grounds that judgment was delivered on this matter on the 28th day of September, 2021. The applicants having been dissatisfied with the outcome have filed a notice of appeal and have requested copies of the judgment and certified copies of proceedings to enable them file its record of appeal in the court of appeal. That there is no prejudice that will be occasioned to the defendant if the orders sought are granted.
In the supporting affidavit, the applicant states that he is aware that judgment was delivered on this matter on the 28th September, 2021 and having been dissatisfied with the same he instructed his advocate on record to file an appeal and to initiate the process of appeal in the Court of Appeal the appellant must first file Notice of Appeal which has been done by his Advocate. His advocate on record also applied for copy of the judgment and copy of certified proceedings and subsequently filed a record of Appeal in the Court of Appeal. The appeal before court of appeal is based on the issue of costs to the Respondents among other grounds. The Respondent has initiated the execution process where the Respondent has taxed their bill of costs to prepare decree for purpose of execution. That unless the Respondent is restrained from executing against the Applicant then the appeal will be rendered nugatory. There is no prejudice that will be occasioned to the respondent if a stay of execution is granted.
The applicant submits that the application was made without inordinate or unreasonable delay. The delay is explained and excusable since after the ruling, the Applicants promptly filed a Notice of Appeal and applied for proceedings. The appeal process in Kenya is document-driven and parties are dependent on the Court's registry for preparation and supply of typed proceedings. Courts have consistently held that where delay is explained by administrative lapses in the preparation of proceedings, the same cannot be visited upon a litigant. The applicant relies on the case of Nicholas Kiptoo Arap Korir Salat v IEBC & 7 Others [2014] eKLR — the Supreme Court held that the right of appeal should not be denied on the basis of procedural technicalities, further in the case of Mwangi v Kenya Airways Ltd [20031 KLR 486 — the Court of Appeal stated that delay must be explained to the satisfaction of the Court. The Applicants have been actively pursuing their right of appeal and should not be penalized for circumstances outside their control.
On whether the Applicants have demonstrated substantial loss, the Respondent has taxed its Bill of Costs and is poised to execute against the Applicants. Execution of a decree for costs would expose the Applicants to financial prejudice which, if recovered prematurely, may never be refunded should the appeal succeed. The Court of Appeal in Kenya Shell Ltd v Benjamin Karuga Kibiru & Another [1986] KLR 410 held that substantial loss is the cornerstone for granting stay, and once it is shown that execution would render the appeal nugatory, stay must be granted. The applicant further relies on the case of Butt v Rent Restriction Tribunal [19791.
The Respondents Case
The respondent filed grounds of opposition to notice of motion for stay dated 2nd April 2025 whose import is that there was no judgment entered in these proceedings either on 28th September 2021 or at any other date at all whose execution the applicant seeks to stay. What happened on 28th September 2021 was delivery of a ruling by the court, upholding a preliminary objection raised by Memphis Limited on 30th April 2021 with the consequent result that petition No. 10 of 2021 was struck out. Once the petition was struck out, it remained struck out, and there is nothing thereon whose execution can be stayed.
Stay of execution pending appeal is governed by the provisions of order 42 rule 6 of the civil procedure rules. Rule 6[2] makes it a requirement that before any stay orders can be given, the applicant must show:
“…. That the application has been made without unreasonable delay”.
According to the respondent, from September 2021 to date is a period of nearly 4 years. This length of time is beyond inordinate delay. It is actually unreasonable delay which effectively offends the requirements of Rule 6(2) cited above.
The catalogue and litany of defects attendant to the present application are legion. The respondent cites examples such as the fact the applicant has not proposed or offered any security for the performance of any of the orders it seeks, in the event the same are granted and that the execution that is in place related to recovery of Taxed costs. This is a money Decree. Therefore the principles that apply in applications seeking to stay execution of money Decrees apply fully in this matter.
This application is a desperate attempt by the Applicant to forestall recovery of properly taxed costs. Unless the Applicant is willing to deposit the entire sum in Court, then his application should be refused.
The respondent submits that there was no Judgment entered in these proceedings either on 28th September 2021 or at any other date at all whose execution the Applicant seeks to stay. What happened on 28th September 2021 was delivery of a Ruling by the Court, upholding a Preliminary Objection raised by Memphis Limited on 30th April 2021 with the consequent result that Petition No 10 of 2021 was struck out. Once that Petition was struck out, it remained struck out, and there is nothing thereon whose execution can be stayed.
Stay of execution Pending Appeal is governed by the provisions of Order 42 Rule 6 of the Civil Procedure Rules. Rule 6(2) makes it a requirement that before any stay orders can be given, the Applicant must show:
“…….that the application has been made without unreasonable delay".
From September 2021 to date is a period of nearly 4 years. This length of time is beyond inordinate delay. It is actually unreasonable delay which effectively offends the requirements of Rule 6(2) cited above.
There is another requirement imposed by Order 42 Rule 6(2) (b) as follows:
(2) No order for stay of execution shall be made under subrule(1) unless [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.
The Decree which is being executed arises from a duly taxed Bill of costs. This fact is recognized by the Applicant who, at paragraph 6 of his Supporting Affidavit, states that the Respondent has initiated the execution process.
Analysis and Determination
I have considered the application and the reply by the respondent together with the submissions on record and do find the petition was struck out on the 28th September 2021. What is being appealed from is a ruling striking out the petition but not a positive judgment of the court. The applicant is appealing from a negative order that cannot be stayed and therefore application is incompetent ab- initio.
This court is persuaded by the holding in Malombe v Ngui (Civil Appeal E199 of 2024) [2024] KEHC 15167 (KLR) (28 November 2024) that:-
“This Court has a duty to balance the rights of both parties. I note that the said order was not annexed in full thus the court cannot address its mind fully to it. The question that begs is whether this court can issue stay of execution on a negative order. This issue was discussed in the case of Chege v Gachora (Civil Appeal 265 of 2023) [2024] KEHC 1994 (KLR) where the court stated as follows;“In essence the impugned ruling is a negative order and is incapable of execution. This principle was enunciated by the Court of Appeal in Co-operative Bank of Kenya Limited v Banking Insurance & Finance Union (Kenya) [2015] eKLR where the court held as follows:-An order for stay of execution (pending appeal) is ordinarily an interim order which seeks to delay the performance of positive obligations that are set out in a decree as a result of a judgment. The delay of performance presupposes the existence of a situation to stay – called a positive order – either an order that has not been complied with or has partly been complied with.
20. Similarly in Kenya Commercial Bank Limited v Tamarind Meadows Limited & 7 Others [2016] eKLR the Court of Appeal expounded on stay of execution stating:-In Kanwal Sarjit Singh Dhiman v Keshavji Juvraj Shah [2008] eKLR the Court of Appeal while dealing with a similar application for stay of a negative order, held as follows:-The 2nd prayer in the application is for stay (of execution) of the order of the superior court made on 18th December 2006. The order of 18th December 2006 merely dismissed the application for setting aside the judgment with costs. By the order, the superior court did not order any of the parties to do anything or refrain from doing anything or to pay any sum. It was thus, a negative order which is incapable of execution save in respect of costs only.The same reasoning was applied in the case of Raymond M. Omboga v Austine Pyan Maranga (supra) that a negative order is one that is incapable of execution, and thus, incapable of being stayed. This is what the Court had to say on the matter:-The order dismissing the application is in the nature of a negative order and is incapable of stay of execution, save perhaps, for costs and such order is incapable of stay. Where there is no positive order made in favour of the respondent which is incapable of execution, there can be no stay of execution of such an order….The applicant seeks to appeal against the order dismissing his application. This is not an order capable of being stayed because there is nothing the applicant has lost. The refusal simply means that the applicant stays in the situation he was in before coming to court and therefore the issues of substantial loss that he is likely to suffer and or the appeal being rendered nugatory does not arise….”
I do find that the application before incompetent as there is no positive order to be stayed. The application is dismissed with costs.