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The Applicant’s Notice of Motion dated 1st October 2025 is brought under Order 22 Rule 22, Order 21 Rule 7, Order 9 Rule 9, Order 51 Rule 1, Order 45 Rule 1 of the Civil Procedure Rules; Sections 1A, 1B, 3, 3A, 63(e) and 80 of the Civil Procedure Act, 2010; Articles 47, 50(1), and 159(2)(a) & (d) of the Constitution of Kenya, 2010; Section 4 of the Fair Administrative Actions Act, and all other enabling provisions of the law.
The application seeks the following ORDERS:
a) Spent.
b) That this Honourable Court be pleased to grant a stay of sale of goods by the Interested Party.
c) That this Honourable Court be pleased to order the Interested Party to return the goods attached and carted away from the Appellant’s premises.
d) That this Honourable Court be pleased to issue any other order(s) and/or direction(s) it may deem fit and just in the circumstances.
e) That costs of this Application be provided for.
The Application is supported by the affidavit of Rayn Wendo and is premised on the grounds set out therein and such further grounds as may be adduced at the hearing.
RESPONDENT’S GROUNDS OF OPPOSITION
Upon service, the Respondent filed Grounds of Opposition stating, inter alia, that:
The Applicant is guilty of indolence and laches , having failed to raise or defend its position at the appropriate time.
It is in the interest of justice that litigation comes to an end.
The application is dilatory, an afterthought, and an abuse of court process , and should be dismissed with costs since the judgment has not been set aside.
The application lacks merit , as the Applicant has not provided any valid grounds for staying or stalling lawful execution.
The Applicant has admitted that it failed to comply with court directives and is therefore approaching the Court with unclean hands.
The application is a hindrance to justice , and the Respondent is being unjustifiably prejudiced.
APPLICANT’S SUBMISSIONS
The Applicant submitted that upon service of summons in Mombasa CMCC No. E480 of 2020, they instructed the firm of Kimondo Gachoka & Company Advocates to enter appearance and file a defence.
The advocates duly filed a Memorandum of Appearance and Defence within time. However, upon the Respondent’s application, the suit was dismissed on 29/09/2023 .
The Applicant thereafter lodged this appeal against that ruling. Stay of execution was granted on condition that security be deposited, but due to financial hardships the condition was not met and the appeal was marked as closed .
Parties subsequently recorded a consent on payment by instalments , which the Applicant honoured by paying Kshs. 3,000,000/= , being the statutory limit.
The Interested Party nevertheless proceeded with attachment, paralysing the Applicant’s operations , and carted away items not listed in the proclamation and which did not belong to the Applicant.
The Applicant contends that unless the warrants of attachment are vacated, it will suffer irreparable loss and damage .
The application has been lodged without inordinate delay , and it is in the interest of justice and fairness that the orders sought be granted.
The Respondent will suffer no prejudice should the orders be granted.
It is only just, fair and reasonable that the application be allowed.
DETERMINATION
I have considered the application, the supporting affidavit, the Grounds of Opposition, and the submissions.
I have also considered the provisions of Order 42 Rule 6 of the Civil Procedure Rules. I am satisfied that the three conditions for the grant of stay have been met. A valid legal issue has been raised; the Applicant stands to suffer substantial loss if stay is not granted; and the Applicant, having already satisfied a substantial part of the decretal sum, need not provide further security . The application was also filed timeously.
Accordingly, the Application has merit and is hereby allowed .
Costs shall abide the outcome of the appeal.
Ruling delivered, dated and signed in Open Court/Microsoft Teams
this ………4 th …… day of ……December…………… 2025.
HON. LADY JUSTICE WENDY K. MICHENI
JUDGE
In the presence of:
both sides absent
Hon. Lady Justice Wendy K. Micheni
Judge
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The Applicant’s Notice of Motion dated 1st October 2025 is brought under Order 22 Rule 22, Order 21 Rule 7, Order 9 Rule 9, Order 51 Rule 1, Order 45 Rule 1 of the Civil Procedure Rules; Sections 1A, 1B, 3, 3A, 63(e) and 80 of the Civil Procedure Act, 2010; Articles 47, 50(1), and 159(2)(a) & (d) of the Constitution of Kenya, 2010; Section 4 of the Fair Administrative Actions Act, and all other enabling provisions of the law.
The application seeks the following ORDERS:
a) Spent.
b) That this Honourable Court be pleased to grant a stay of sale of goods by the Interested Party.
c) That this Honourable Court be pleased to order the Interested Party to return the goods attached and carted away from the Appellant’s premises.
d) That this Honourable Court be pleased to issue any other order(s) and/or direction(s) it may deem fit and just in the circumstances.
e) That costs of this Application be provided for.
The Application is supported by the affidavit of Rayn Wendo and is premised on the grounds set out therein and such further grounds as may be adduced at the hearing.
RESPONDENT’S GROUNDS OF OPPOSITION
Upon service, the Respondent filed Grounds of Opposition stating, inter alia, that:
The Applicant is guilty of indolence and laches , having failed to raise or defend its position at the appropriate time.
It is in the interest of justice that litigation comes to an end.
The application is dilatory, an afterthought, and an abuse of court process , and should be dismissed with costs since the judgment has not been set aside.
The application lacks merit , as the Applicant has not provided any valid grounds for staying or stalling lawful execution.
The Applicant has admitted that it failed to comply with court directives and is therefore approaching the Court with unclean hands.
The application is a hindrance to justice , and the Respondent is being unjustifiably prejudiced.
APPLICANT’S SUBMISSIONS
The Applicant submitted that upon service of summons in Mombasa CMCC No. E480 of 2020, they instructed the firm of Kimondo Gachoka & Company Advocates to enter appearance and file a defence.
The advocates duly filed a Memorandum of Appearance and Defence within time. However, upon the Respondent’s application, the suit was dismissed on 29/09/2023 .
The Applicant thereafter lodged this appeal against that ruling. Stay of execution was granted on condition that security be deposited, but due to financial hardships the condition was not met and the appeal was marked as closed .
Parties subsequently recorded a consent on payment by instalments , which the Applicant honoured by paying Kshs. 3,000,000/= , being the statutory limit.
The Interested Party nevertheless proceeded with attachment, paralysing the Applicant’s operations , and carted away items not listed in the proclamation and which did not belong to the Applicant.
The Applicant contends that unless the warrants of attachment are vacated, it will suffer irreparable loss and damage .
The application has been lodged without inordinate delay , and it is in the interest of justice and fairness that the orders sought be granted.
The Respondent will suffer no prejudice should the orders be granted.
It is only just, fair and reasonable that the application be allowed.
DETERMINATION
I have considered the application, the supporting affidavit, the Grounds of Opposition, and the submissions.
I have also considered the provisions of Order 42 Rule 6 of the Civil Procedure Rules. I am satisfied that the three conditions for the grant of stay have been met. A valid legal issue has been raised; the Applicant stands to suffer substantial loss if stay is not granted; and the Applicant, having already satisfied a substantial part of the decretal sum, need not provide further security . The application was also filed timeously.
Accordingly, the Application has merit and is hereby allowed .
Costs shall abide the outcome of the appeal.
Ruling delivered, dated and signed in Open Court/Microsoft Teams
this ………4 th …… day of ……December…………… 2025.
HON. LADY JUSTICE WENDY K. MICHENI
JUDGE
In the presence of:
both sides absent
Hon. Lady Justice Wendy K. Micheni
Judge
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