'
Before me is the Notice of Motion dated 17th July 2025.
It is brought under section 3 and 3 A of the Civil Procedure Act, order 42 of the Civil Procedure Rules .
It seeks among other orders a stay of execution of the Judgment in in MAKUENI Civil case no. E 017 of 2024 delivered on the 27th March 2025 and the sale of the motor vehicle registration number KBJ 351M/ ZE0054 Mercedes Benz actros MP1 with a trailer ; pending the hearing of the appeal.
It also seeks an order of release/return, against the respondent their agents, servants, officers employees, and/ or assigns including the auctioneer ,to the appellant, pending the hearing and determination of the appeal, the said motor vehicle K B J 351M/ ZE0054 Mercedes Benz actros MP1 with a trailer .
One of the grounds for the application is that the applicants were served with a 7 days proclamation notice of attachment on the 27th May 2025 by the respondent which resulted in the applicant approaching the honorable court via an application dated 28th May 2025 seeking stay orders where the court proceeded to issue a conditional stay enclosed in the orders dated 30th May 2025.
That the applicant was not able to raise the security within the forty-five day period given by the court as the applicant’s insurance had to raise Ksh shillings 3 million with the applicant having to raise Ksh 2 million; that the delay was not in bad faith as the process of requisition of the funds hit a snag due to the unavailability of funds which the applicants are vehemently remorseful for; that on the 16th July 2025 auctioneers proceeded to the applicant’s premises seeking to execute the judgment delivered on 27th March 2025 while the applicant was in the process of depositing the Ksh 5 million in court and have attached the motor vehicle here in above; that it is in the interest of justice that the stay of execution be granted as the respondent will have their time in court to respond to the appeal and that they will not be prejudiced by the issuance of the orders sought as the applicant has demonstrated its willingness to abide by the court’s condition on the issuance of the stay of execution orders.
The application is opposed through the replying affidavit of Geoffrey WANJALA WASIKE on the ground that this application is an abuse of the court process as the same is res judicata in that a similar application dated 28th may 2025 had been made and specific directions on stay of execution granted by this court which was on the condition that the applicant would deposit the sum of Ksh 5 million in court or in a joint interest earning account within 45 days from the date of the order that the orders were issued on 30th May and the 45 days lapsed on the 14th July 2025 by which date the said the amount had not been deposited and the stay orders had effectively lapsed under operation of law and due to the default in making the deposit so ordered.
That the deposit of the Ksh 5 million was made on 16th July without an order from the court as the time within which it was to be made had lapsed and there was therefore no order for making such a deposit; the appellants request for an extension of time having been declined on the 14th July 2025 . That should the court consider an extension then the respondent should be paid 50% of the decretal sum.
That this court as an appeal court cannot grant the order for release of the attached goods as the same should be requested from the court that issued the execution.
I checked the CTS for submissions I did not see any.
I have considered the application before me, the record and the rival of Affidavits.
The only issue is whether the application is tenable.
It is not in dispute that this court gave stay orders on the 30th of May 2025 after the applicant had filed an application seeking stay orders pending appeal.
The applicant had stated in the application that they were ready willing and able to abide by the court''s condition on stay . The court granted the orders of stay on condition that the applicant would deposit the security in court within 45 days.
The applicant did not abide by those orders but proceeded to deposit the money outside the period given without leave of court.
It is evident from the record that on 14th July 2025 the applicant was before court and through counsel stated that they had not fulfilled the conditions for the stay and were seeking a 7 days extension.
Counsel for the respondent was opposed to any extension of time as the applicant had come on the 45th day. It was submitted that even on that day they could still comply.
The record shows that this is what I said:
“ On the issue of compliance with the order for security, it is time bound. It is upon the applicant to comply “
Evidently the applicant did not comply.
There is no sufficient reason given for why the applicant did not comply in good time or even approach the court before the deadline yet they were aware of their issues.
More importantly, the application is an abuse of the court for being res judicata. This court pronounced itself on the same issue in its orders of 30th May 2025 where a stay of execution of the same Judgment was granted with conditions. The fact that the applicant had failed to comply with the conditions within the time frame did not give the applicant the leeway to file a similar application seeking the same orders that the applicant had been granted and had failed to comply with.
In spite of the foregoing the respondent has made an offer. That should this court consider granting the stay, then the applicant be paid half the decretal sum. That offer has not been responded to by the applicant and the fact that the attempt of a settlement out of court fell apart, I would be hesitant to make any such order.
In the circumstances, the application is declined with costs to the respondent.
Dated, signed and delivered via CTS this 6th October 2025.
Mumbua T Matheka
Judge
CA Chrispol
'
Before me is the Notice of Motion dated 17th July 2025.
It is brought under section 3 and 3 A of the Civil Procedure Act, order 42 of the Civil Procedure Rules .
It seeks among other orders a stay of execution of the Judgment in in MAKUENI Civil case no. E 017 of 2024 delivered on the 27th March 2025 and the sale of the motor vehicle registration number KBJ 351M/ ZE0054 Mercedes Benz actros MP1 with a trailer ; pending the hearing of the appeal.
It also seeks an order of release/return, against the respondent their agents, servants, officers employees, and/ or assigns including the auctioneer ,to the appellant, pending the hearing and determination of the appeal, the said motor vehicle K B J 351M/ ZE0054 Mercedes Benz actros MP1 with a trailer .
One of the grounds for the application is that the applicants were served with a 7 days proclamation notice of attachment on the 27th May 2025 by the respondent which resulted in the applicant approaching the honorable court via an application dated 28th May 2025 seeking stay orders where the court proceeded to issue a conditional stay enclosed in the orders dated 30th May 2025.
That the applicant was not able to raise the security within the forty-five day period given by the court as the applicant’s insurance had to raise Ksh shillings 3 million with the applicant having to raise Ksh 2 million; that the delay was not in bad faith as the process of requisition of the funds hit a snag due to the unavailability of funds which the applicants are vehemently remorseful for; that on the 16th July 2025 auctioneers proceeded to the applicant’s premises seeking to execute the judgment delivered on 27th March 2025 while the applicant was in the process of depositing the Ksh 5 million in court and have attached the motor vehicle here in above; that it is in the interest of justice that the stay of execution be granted as the respondent will have their time in court to respond to the appeal and that they will not be prejudiced by the issuance of the orders sought as the applicant has demonstrated its willingness to abide by the court’s condition on the issuance of the stay of execution orders.
The application is opposed through the replying affidavit of Geoffrey WANJALA WASIKE on the ground that this application is an abuse of the court process as the same is res judicata in that a similar application dated 28th may 2025 had been made and specific directions on stay of execution granted by this court which was on the condition that the applicant would deposit the sum of Ksh 5 million in court or in a joint interest earning account within 45 days from the date of the order that the orders were issued on 30th May and the 45 days lapsed on the 14th July 2025 by which date the said the amount had not been deposited and the stay orders had effectively lapsed under operation of law and due to the default in making the deposit so ordered.
That the deposit of the Ksh 5 million was made on 16th July without an order from the court as the time within which it was to be made had lapsed and there was therefore no order for making such a deposit; the appellants request for an extension of time having been declined on the 14th July 2025 . That should the court consider an extension then the respondent should be paid 50% of the decretal sum.
That this court as an appeal court cannot grant the order for release of the attached goods as the same should be requested from the court that issued the execution.
I checked the CTS for submissions I did not see any.
I have considered the application before me, the record and the rival of Affidavits.
The only issue is whether the application is tenable.
It is not in dispute that this court gave stay orders on the 30th of May 2025 after the applicant had filed an application seeking stay orders pending appeal.
The applicant had stated in the application that they were ready willing and able to abide by the court''s condition on stay . The court granted the orders of stay on condition that the applicant would deposit the security in court within 45 days.
The applicant did not abide by those orders but proceeded to deposit the money outside the period given without leave of court.
It is evident from the record that on 14th July 2025 the applicant was before court and through counsel stated that they had not fulfilled the conditions for the stay and were seeking a 7 days extension.
Counsel for the respondent was opposed to any extension of time as the applicant had come on the 45th day. It was submitted that even on that day they could still comply.
The record shows that this is what I said:
“ On the issue of compliance with the order for security, it is time bound. It is upon the applicant to comply “
Evidently the applicant did not comply.
There is no sufficient reason given for why the applicant did not comply in good time or even approach the court before the deadline yet they were aware of their issues.
More importantly, the application is an abuse of the court for being res judicata. This court pronounced itself on the same issue in its orders of 30th May 2025 where a stay of execution of the same Judgment was granted with conditions. The fact that the applicant had failed to comply with the conditions within the time frame did not give the applicant the leeway to file a similar application seeking the same orders that the applicant had been granted and had failed to comply with.
In spite of the foregoing the respondent has made an offer. That should this court consider granting the stay, then the applicant be paid half the decretal sum. That offer has not been responded to by the applicant and the fact that the attempt of a settlement out of court fell apart, I would be hesitant to make any such order.
In the circumstances, the application is declined with costs to the respondent.
Dated, signed and delivered via CTS this 6th October 2025.
Mumbua T Matheka
Judge
CA Chrispol
'