'
1. Before me is the Notice of Motion dated 06/11/2023. It was filed under certificate of urgency and is brought under Sections 1A,1B,3A 63(e) of the Civil Procedure Act, Order 42 Rule 6 and Order 51 Rules 1 of the Civil Procedure Rules 2010 and all other enabling provisions of the law. It seeks the following orders;
a) Spent.
b) Spent
c) THAT there be a stay of orders issued arising from the ruling delivered on 26/09/2023 in CMCC E126 of 2022-Chief Magistrate Court at Makueni pending the hearing and determination of the appeal filed herewith.
d) Spent
e) There be a stay of the orders issued directing the OCS Makueni Police station to impound the Appellant’s motor vehicle KCK 288G pending the hearing and determination of the appeal filed herewith.
f) Spent
g) That an injunction do issue barring the Respondents either by themselves jointly and severally or their agents, servants, employees, assigns and or any persons acting under the control, direction and or command from interfering with the Appellant’s quiet and peaceful usage and or utilization of the motor vehicle KCK 288G pending the hearing and determination of the appeal filed herewith.
h) THAT the costs of this application be provided for.
2. The application is supported by the grounds on its face and the Affidavit of Edward Karanja Muigai sworn on the same day. He deponed that he purchased motor vehicle KCK 288G (the vehicle) on or around October 2022 from Simon M Muruthi and paid the purchase price in full. That, the vehicle was transferred to him and registration details held with the National Transport Safety Authority were changed accordingly. That, the suit was commenced by the 1st Respondent challenging how he (Appellant) acquired the vehicle and complaining of fraud by the 2nd Respondent who it is alleged is the wife of the 1st Respondent.
3. It was deponed that the 1st Respondent filed an application dated 27/01/2023 and the Appellant responded to it leading to the ruling delivered on 26/09/2023. Copies of the application, replying affidavit & ruling are exhibited as EKM 1,2 & 3 respectively. That, the Appellant was dissatisfied with the finding as contained in the order issued hence this appeal. A copy of the order is exhibited as EKM 4.
4. It was deponed that plausible and triable grounds of appeal have been raised more so after the learned magistrate directed that the vehicle be impounded yet that was not and could not have been the only available remedy to safeguard the suit proceedings. That, the Appellant had possession of the vehicle since 2022 and would be ready to avail it as and when ordered by the court. That, he has no reasons to interfere with the records of the vehicle during the pendency of the appeal. That, since the filing of the case till delivery of the ruling, he would have disposed the vehicle if so desired since there were no interlocutory orders.
5. It was deponed that prior to purchase of the vehicle by the Appellant, it was registered in the name of the 2nd Respondent and charged to the 6th Respondent who had advanced her a loan of Ksh 385,361/= and before that, the vehicle was solely owned by the 2nd Respondent. Copies of logbooks are exhibited at EKM 5A-B and the registration under the Movable Property Security Right is exhibited as EKM 6.
6. It was deponed that, as can be deduced from the amended plaint, there are issues regarding the manner the vehicle was transferred to the Appellant but that should not impede his enjoyment of the right to property as he lawfully acquired it from a purchaser who in turn bought it from the 2nd Respondent. A copy of the amended plaint is exhibited as EKM 7.
7. It was deponed that the Appellant seeks to enjoy the right of use of the vehicle free from any interference by the third parties including the Respondents and it can only be achieved by issuance of an injunction in the interests of justice.
8. The application is opposed through the 1st Respondent’s undated replying affidavit filed on 08/02/2024. He deponed that the application is frivolous, vexatious, devoid of any merit and based on an erroneous understanding of the applicable law. That, it is also incapable of succeeding.
9. It was deponed that the ruling to which the appeal has been preferred was delivered by a competent court and the conditions set out in Order 42 Rule 6 of the CPR must be satisfied for an order of stay of execution pending appeal to issue. That, the Appellant has not satisfied any of the said conditions.
10. It was deponed that the Applicant is employing delaying tactics aimed at delaying the Respondent from enjoying the fruits of justice. That, the Applicant has not demonstrated by way of substantive evidence that he stands to suffer substantial loss if this court declines to grant the stay orders. That, the Applicant has failed to show his willingness to provide security if directed by this court.
11. It was deponed that the right of appeal ought to be balanced with the right of decree holder to enjoy the fruits of judgment. That, the move by the Applicant is ill covered and in bad faith. That, applications of this nature invoke the discretionary powers of the court which ought to be exercised judiciously.
12. The application was canvassed through written submissions and the only submissions on record are for the Appellant and 1st Respondent. The appeal against the 5th Respondent was withdrawn via a Notice of Appeal dated 17/04/2024.
The Applicant’s Submissions
13. The Applicant identified the issues for determination to be;
a) Whether the Appellant’s/Applicant’s application is merited and consequently if the orders sought ought to be granted.
b) Who bears the costs of the application?
14. On whether the application is merited, reliance was placed on Order 42 Rule 6 of the CPR for the submission that an Applicant must establish that he/she has a sufficient cause for seeking the orders, that he stands to suffer substantial loss if the orders are not granted and that he is willing to furnish security for the due performance of the decree. That, the application must also be made without unreasonable delay. Further reliance was placed on Butt -vs- Rent Restriction Tribunal [1979] where the Court of Appeal stated;
a) The power of the court to grant or refuse an application for a stay of execution is discretionary; and the discretion should be exercised in such a way as not to prevent an appeal.
b) Secondly, the general principle in granting or refusing a stay is, if there is no other overwhelming hindrance, a stay must be granted so that an appeal may not be rendered nugatory should the appeal court reverse the judge’s discretion.
c) Thirdly, a judge should not refuse a stay if there are good grounds for granting it merely because, in his opinion, a better remedy may become available to the applicant at the end of the proceedings.
d) Finally, the Court in exercising its discretion whether to grant or refuse an application for stay will consider the special circumstances and its unique requirements. The court in exercising its powers under Order XLI Rule 4(2)
15. It was submitted that the ruling was delivered on 26/09/2023 after which the Memorandum of Appeal and current application were filed within 2 months hence there was no undue delay.
16. With regard to substantial loss, reliance was placed on Tropical Commodities Suppliers Ltd & Others -vs- International Credit Bank Ltd (in liquidation) [2004] 2 EA 331 where the court stated that;
“Substantial loss does not represent any particular mathematical formula. Rather, it is a qualitative concept. It refers to any loss, great or small, that is of real worth or value as distinguished from a loss without value or a loss that is merely nominal.”
17. Further reliance was placed on James Wangalwa & Another -vs- Agnes Naliaka Cheseto [2012] eKLR where the court stated;
“…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 ... 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.”
18. It was submitted that the Appellant purchased the subject vehicle in 2022 ad his family depends on it for movement. That if the same is impounded as ordered, then the enjoyment of his right to property under Article 40 of the Constitution will be violated. That, once a Constitutional right is violated, it may not be sufficiently compensated by way of money. That, the appeal is against the impounding of the vehicle and failure to issue the stay orders will defeat the whole purpose of the appeal and render it nugatory.
19. With regard to security, it was submitted that the Appellant is ready and willing to abide by any order of this court.
20. As to the purpose of a stay of execution pending appeal, reliance was placed on RWW -vs- EKW [2019] eKLR where the court stated;
“The purpose of an application for stay of execution pending an appeal is to preserve the subject matter in dispute so that the rights of the appellant who is exercising the undoubted right of appeal are safeguarded and the appeal if successful, is not rendered nugatory. However, in doing so, the court should weigh this right against the success of a litigant who should not be deprived of the fruits of his/her judgment. The court is also called upon to ensure that no party suffers prejudice that cannot be compensated by an award of costs.”
21. With regard to the injunctive orders sought, it was submitted that the Appellant has demonstrated that he has been in possession the subject vehicle since purchasing it in 2022 and has been using it to date. That, impounding the vehicle will violate the Appellant’s enjoyment of his right to property and the violation cannot be compensated by way of money. That, the Appellant has demonstrated that he has a prima facie case with probability of success and has shown that he will suffer irreparable damage if the interlocutory injunction is not granted. That, he has also demonstrated that the balance of convenience tilts in his favor as the appeal will be rendered academic or moot.
22. It was submitted that the theme advanced in Articles 25, 50 and 159 of the Constitution is that both parties should be given a chance to fairly prosecute their cases and the same be determined by the court on merit. That, hearing a matter substantively includes parties being heard on merit and more importantly parties being given an opportunity to exhaust all legal avenues and or mechanisms available in law, including appeals. Reliance was placed on First National Finance Bank Limited -vs- Universal Apparels (EPZ) Ltd & 2 others [2017] eKLR where the court stated;
“10. Nonetheless, Article 159 (2) (d) of the Constitution makes it clear that when called upon to administer Justice, the courts or any other tribunals which exercise judicial authority, shall not be blindly enslaved by procedural technicalities.
11. The Constitution does not urge the courts to disregard procedural rules. It only says that the courts should not have undue regard to procedural technicalities.
12. Ordinarily therefore, Article 159 (2) (d) of the Constitution ought to be a shield, rather than a spear. It ought to be invoked to protect a substantive application so that the application can be heard, rather than having the application struck out or dismissed on the basis of a technicality.
13. Article 159 (2) (d) should not, ordinarily, be the foundation upon
which an application is founded, when the law provides means through which the applicant can move the court.
14. I now move on to consider the provisions of Section 3A of the Civil Procedure Act.
15. First, the defendants did not make any submissions on that account. But in any event, I find that the Court of Appeal gave very useful remarks in the case of KENYA POWER & LIGHTING COMPANY LIMITED Vs. BENZENE HOLDINGS LIMITED T/A WYCO PAINTS, CIVIL APPEAL No. 132 of 2014 . This is what the
court said; “ Section 3A of the Civil Procedure Act appears to have been introduced to augment the provisions of Section 3, vesting in the courts inherent power to make any orders as may be necessary for the ends of justice or to prevent abuse of the process of the court. Of course, this power has now been broadened by the introduction in 2009 of Overriding Objective in sections 1A and 1B and 2010 by Article 159 of the Constitution”.
23. It was submitted that Section 3A of the Civil Procedure Act gives court inherent powers to issue such orders as may be necessary to meet the ends of justice as it was reinstated in Wachira Karani -vs- Bildad Wachira [2016] eKLR. That, Section 1A and 1B of the Civil Procedure Act enjoins the court to ensure that there is just determination of the dispute and that court should always opt for lower rather than the higher risk of injustice.
24. With regard to costs, reliance was placed on Section 27 of the Civil
Procedure Act for the submission that costs follow event.
The Respondent’s Submissions
25. For the first Respondent two issues are set out for determination;
a) Whether the Appellant stands to suffer substantial loss if the orders sought are not granted.
b) Whether the Appellant has furnished security as required by law.
26. They responded sights TARBO transporters limited versus ABSALOM DOVA LUMBASI [2013] eKLR for the proposition that an order of stay is granted at the discretion of court For sufficient cause upon the tripartite grounds of substantial loss no unreasonable delay in failing of the application and furnishing of security the respondent reinforces the argument by citing Elena D. Korir versus Kenyatta University [2012] eKLR.
27. As to whether the Appellant stands to suffer substantial loss, reliance the respondent cites Mukuma -vs- Abuoga (1988) KLR 645 where the Court of Appeal stated that; “Substantial loss is what has to be prevented by preserving the status quo because such loss would render the appeal nugatory.”
28. In Kenya Shell Ltd -vs- Kibiru (1986) KLR 410 the court expressed the view that where there is no substantial loss the appeal cannot be rendered nugatory. Further that;
Substantial loss in its various forms is the cornerstone of both jurisdictions for granting a stay. That is what has to be prevented. Therefore, without this evidence, it is difficult to see why the respondents should be kept out of their money. ”
29. Daniel Chebutui Rotich & 2 Others -vs- Emirates Airlines: Civil Case No 368 of 2001 where the court Defined substantial loss stating ;
“Substantial loss is a relative term and more often than not can be assessed by the totality of the consequences which an applicant is likely to suffer if stay of execution is not granted and that applicant is therefore forced to pay the decretal sum.”
30. It was Submitted that the applicant has not demonstrated that he will suffer substantial loss if the orders are not granted.
31. It was submitted that one of the orders granted by the trial court was a temporary injunction restraining the Appellant from transferring, altering, disposing off and or interfering in any way with the subject motor vehicle. That, the 1st Respondent was the plaintiff in the trial court and had sought protection as the ownership of the subject motor vehicle had been illegally changed without his involvement yet he was the registered owner. It was submitted that if this court grants the stay orders, there will be an open avenue for further disposal and/or change of ownership which will be detrimental to the 1st Respondent and will beat the very essence of the lower court matter which is pending determination.
32. On security the respondent relied on Kenya Commercial Bank -vs- Suncity Properties Ltd & 5 Others (2012) eKLR which speaks to the balancing of the competing interests of the appellant and the successful litigant that there ought to be security for the performance of the decree to await the outcome of their appeal
“In an application for stay, there are always competing interests that must be considered. There are that of a successful litigant who should not be denied the fruits of his judgment and that of an unsuccessful litigant exercising his undoubted right of appeal should be safeguarded from his appeal being rendered nugatory. In a bid to balance the two competing interests, the court usually makes an order for suitable security for the due performance of the decree as parties await the outcome of the appeal.”
33. On the importance of security the respondent refers to Equity Bank Ltd -vs- Taiga Adams Company Ltd [2006] eKLR where the court stated;
“ …of even greater impact is the fact that an applicant has not offered security at all and this is one of the mandatory tenets under which the application is brought…let me conclude by stressing that of all the four, not one or some, must be met before this court can grant an order of stay.”
34. And also MACHIRA trading as MACHIRA & Company Advocates vs East African Standard [2000] KLR 63
35. This court was urged to impose an order of security for due performance of the trial court ruling pending determination of the appeal.
36. With regard to the prayer for injunction, it was submitted that an applicant must prove that he has a prima facie case with probability of success, that he stands to suffer irreparable loss which cannot be compensated by damages and that the balance of convenience tilts in his favor.
37. Having looked at the application, response and submissions, the only issue for determination is whether the application is merited.
Whether the application is merited
38. According to Order 42 Rule 6 of the Civil Procedure Rules, the conditions which should guide the Court in determining whether to grant stay pending appeal are; whether substantial loss will occur if stay is not granted, whether the application has been filed without unreasonable delay and furnishing security for the due performance of the decree.
39. The ruling by the trial court was delivered on 26/09/2023 and this application was filed on 10/11/2023. Evidently, there was no unreasonable delay.
40. As for substantial loss, the 1st Respondent is apprehensive that if stay orders are granted, there will be an open avenue for further disposal of the vehicle or change of ownership. The orders arising from the ruling of the trial court were inter alia ;
a) That a temporary injunction be and is hereby issued restraining the respondents herein, their employees, agents and representatives acting on their behalf from altering, offering for sale, selling, disposing off, transferring and/or interfering in any way with motor vehicles registration No. KCM 715U and KCK 288G pending hearing and determination of the suit herein.
b) That an order is hereby issued directing the 4th Respondent to register caveat against the records of these motor vehicles registration No. KCM 715U and KCK 288G.
c) That an order is hereby issued directing the OCS Makueni Police Station to impound these suit motor vehicles pending hearing and determination of this suit .
41. Having looked at all the material placed before this court; it is evident that determination of ownership of the subject vehicle is still pending before the trial court hence issuing a stay against the trial court’s orders (a) and (b) above will lift the safeguard intended to preserve the subject matter of the suit.
42. As for the trial court’s order (c) above, the same buttresses the Applicant’s assertion that he has been in possession of the suit motor vehicle since the inception of the suit. The exhibited plaint was filed on 27/01/2023 and the impugned trial court orders were issued on 03/10/2023. Evidently the Applicant could have dealt adversely with the vehicle, but never did. Taking the vehicle from his possession through impounding would disturb the status quo causing substantial inconvenience to the Applicant, yet the matter is still pending determination of the issue of the ownership of the Motor Vehicle Registration Number KCK 288 G which the applicant avers he purchased from one Simon M.MURUTHI. The1st respondent’s position is that he had left this m/v motor vehicle together with another one registration number KCM 715 U with his wife. In an interlocutory application in the subordinate court the first respondent sought the release of the motor vehicle to him it turned out that there was a dispute between him the 1st respondent in MCCC 126 of 2022 who he claimed was his wife and in whose custody he had left the said motor vehicles . The applicant dissatisfied with the ruling of the magistrate lodged a memorandum of appeal together with this application
43. In the prevailing circumstances it is in interest of justice therefore, the trial courts order (c) above is stayed but again to balance the competing interests the applicant should not be able to dispose of the m/vehicle.
44. As for security, the Applicant has undertaken to comply with any orders issued by this court.
45. There is need to maintain the status quo, pending appeal /trial hence the injunction sought is merited to bar the Respondents from interfering with the Applicant’s peaceful utilization of motor vehicle KCK 288G.
46. What orders should issue?
47. In my view this is an appeal from interlocutory orders that were made ostensibly to preserve the subject matter of the suit. However, it is evident to me that the orders granted went beyond that and would have been final orders vis a vis the applicant yet the dispute on ownership of the m/v had not been determined. The crux of the matter is to determine the ownership of the m/vehicle.
48. I find that there is expediency in dealing with the suit without going any further than this and since I am persuaded that the applicant merits the order of stay, it will serve the interests of justice for the parties to return to the subordinate court and expedite the substantive suit.
49. The powers of this court on appeal are set out at s. 80 of the CPA;
78. Powers of appellate court (1) Subject to such conditions and limitations as may be prescribed, an appellate court shall have power—
(a) to determine a case finally;
(b) to remand a case;
(c) to frame issues and refer them for trial;
(d) to take additional evidence or to require the evidence to be taken;
(e) to order a new trial.
50. The CPR at order 42 rule 24 provides for Remand of cases
[Order 42, rule 24.] Where the court from whose decree an appeal is preferred has disposed of the suit upon a preliminary point, and the decree is reversed on appeal, the court to which the appeal is \ preferred may, if it deems fit, by order remand the case, and may further direct what issue or issues shall be tried in the case so remanded, and shall send a copy of its judgment and order to the court from whose decree the appeal is preferred, with directions to re-admit the suit under its original number in the register of civil suits, and proceed to determine the suit; and the evidence, if any, recorded during the original trial shall, subject to all just exceptions, be evidence during the trial after remand.
51. Further Article 159 of the Constitution provides inter alia
(1)Judicial authority is derived from the people and vests in, and shall be exercised by, the courts and tribunals established by or under this Constitution.
(2) In exercising judicial authority, the courts and tribunals shall be guided by the following principles —
(a) justice shall be done to all, irrespective of status;
(b) justice shall not be delayed;
(c) alternative forms of dispute resolution including reconciliation, mediation, arbitration and traditional dispute resolution mechanisms shall be promoted, subject to clause (3);
(d) justice shall be administered without undue regard to procedural technicalities; and (e) the purpose and principles of this Constitution shall be protected and promoted.
In the circumstances ;
52. The application has merit: The following orders issue.
i. This matter is remanded to the trial court to hear and determine the suit Makueni MCCC E126 of 2022 on its merits. The matter be mentioned before the trial magistrate within 7 days hereof for directions.
ii. There be a stay of orders issued arising from the ruling delivered on 26/09/2023 in Makueni MCCC E126 of 2022 pending the hearing and determination of the suit.
iii. There be a stay of the orders issued directing the OCS Makueni Police station to impound the Appellant’s motor vehicle KCK 288G pending the hearing and determination of the suit.
i) That an injunction do issue barring the Respondents either by themselves jointly and severally or their agents, servants, employees, assigns and or any persons acting under the control, direction and or command from interfering with the Appellant’s quiet and peaceful usage and or utilization of the motor vehicle KCK 288G pending the hearing and determination of the suit.
j) That order is hereby issued directing the 4th Respondent to register caveat against the records of motor vehicles registration KCK 288G
The applicant is to deposit the sum of Ksh 250,000 in court within 45 days hereof as security. In default all the stay orders will lapse .
k) The costs of this application to abide the suit.
l) The parties are also encouraged to attempt ADR as provided by Article 159(2) ( c) of the Constitution.
Orders accordingly.
Dated, signed and delivered this 3rd October 2025
Mumbua T Matheka
Judge
CA Chrispol
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1. Before me is the Notice of Motion dated 06/11/2023. It was filed under certificate of urgency and is brought under Sections 1A,1B,3A 63(e) of the Civil Procedure Act, Order 42 Rule 6 and Order 51 Rules 1 of the Civil Procedure Rules 2010 and all other enabling provisions of the law. It seeks the following orders;
a) Spent.
b) Spent
c) THAT there be a stay of orders issued arising from the ruling delivered on 26/09/2023 in CMCC E126 of 2022-Chief Magistrate Court at Makueni pending the hearing and determination of the appeal filed herewith.
d) Spent
e) There be a stay of the orders issued directing the OCS Makueni Police station to impound the Appellant’s motor vehicle KCK 288G pending the hearing and determination of the appeal filed herewith.
f) Spent
g) That an injunction do issue barring the Respondents either by themselves jointly and severally or their agents, servants, employees, assigns and or any persons acting under the control, direction and or command from interfering with the Appellant’s quiet and peaceful usage and or utilization of the motor vehicle KCK 288G pending the hearing and determination of the appeal filed herewith.
h) THAT the costs of this application be provided for.
2. The application is supported by the grounds on its face and the Affidavit of Edward Karanja Muigai sworn on the same day. He deponed that he purchased motor vehicle KCK 288G (the vehicle) on or around October 2022 from Simon M Muruthi and paid the purchase price in full. That, the vehicle was transferred to him and registration details held with the National Transport Safety Authority were changed accordingly. That, the suit was commenced by the 1st Respondent challenging how he (Appellant) acquired the vehicle and complaining of fraud by the 2nd Respondent who it is alleged is the wife of the 1st Respondent.
3. It was deponed that the 1st Respondent filed an application dated 27/01/2023 and the Appellant responded to it leading to the ruling delivered on 26/09/2023. Copies of the application, replying affidavit & ruling are exhibited as EKM 1,2 & 3 respectively. That, the Appellant was dissatisfied with the finding as contained in the order issued hence this appeal. A copy of the order is exhibited as EKM 4.
4. It was deponed that plausible and triable grounds of appeal have been raised more so after the learned magistrate directed that the vehicle be impounded yet that was not and could not have been the only available remedy to safeguard the suit proceedings. That, the Appellant had possession of the vehicle since 2022 and would be ready to avail it as and when ordered by the court. That, he has no reasons to interfere with the records of the vehicle during the pendency of the appeal. That, since the filing of the case till delivery of the ruling, he would have disposed the vehicle if so desired since there were no interlocutory orders.
5. It was deponed that prior to purchase of the vehicle by the Appellant, it was registered in the name of the 2nd Respondent and charged to the 6th Respondent who had advanced her a loan of Ksh 385,361/= and before that, the vehicle was solely owned by the 2nd Respondent. Copies of logbooks are exhibited at EKM 5A-B and the registration under the Movable Property Security Right is exhibited as EKM 6.
6. It was deponed that, as can be deduced from the amended plaint, there are issues regarding the manner the vehicle was transferred to the Appellant but that should not impede his enjoyment of the right to property as he lawfully acquired it from a purchaser who in turn bought it from the 2nd Respondent. A copy of the amended plaint is exhibited as EKM 7.
7. It was deponed that the Appellant seeks to enjoy the right of use of the vehicle free from any interference by the third parties including the Respondents and it can only be achieved by issuance of an injunction in the interests of justice.
8. The application is opposed through the 1st Respondent’s undated replying affidavit filed on 08/02/2024. He deponed that the application is frivolous, vexatious, devoid of any merit and based on an erroneous understanding of the applicable law. That, it is also incapable of succeeding.
9. It was deponed that the ruling to which the appeal has been preferred was delivered by a competent court and the conditions set out in Order 42 Rule 6 of the CPR must be satisfied for an order of stay of execution pending appeal to issue. That, the Appellant has not satisfied any of the said conditions.
10. It was deponed that the Applicant is employing delaying tactics aimed at delaying the Respondent from enjoying the fruits of justice. That, the Applicant has not demonstrated by way of substantive evidence that he stands to suffer substantial loss if this court declines to grant the stay orders. That, the Applicant has failed to show his willingness to provide security if directed by this court.
11. It was deponed that the right of appeal ought to be balanced with the right of decree holder to enjoy the fruits of judgment. That, the move by the Applicant is ill covered and in bad faith. That, applications of this nature invoke the discretionary powers of the court which ought to be exercised judiciously.
12. The application was canvassed through written submissions and the only submissions on record are for the Appellant and 1st Respondent. The appeal against the 5th Respondent was withdrawn via a Notice of Appeal dated 17/04/2024.
The Applicant’s Submissions
13. The Applicant identified the issues for determination to be;
a) Whether the Appellant’s/Applicant’s application is merited and consequently if the orders sought ought to be granted.
b) Who bears the costs of the application?
14. On whether the application is merited, reliance was placed on Order 42 Rule 6 of the CPR for the submission that an Applicant must establish that he/she has a sufficient cause for seeking the orders, that he stands to suffer substantial loss if the orders are not granted and that he is willing to furnish security for the due performance of the decree. That, the application must also be made without unreasonable delay. Further reliance was placed on Butt -vs- Rent Restriction Tribunal [1979] where the Court of Appeal stated;
a) The power of the court to grant or refuse an application for a stay of execution is discretionary; and the discretion should be exercised in such a way as not to prevent an appeal.
b) Secondly, the general principle in granting or refusing a stay is, if there is no other overwhelming hindrance, a stay must be granted so that an appeal may not be rendered nugatory should the appeal court reverse the judge’s discretion.
c) Thirdly, a judge should not refuse a stay if there are good grounds for granting it merely because, in his opinion, a better remedy may become available to the applicant at the end of the proceedings.
d) Finally, the Court in exercising its discretion whether to grant or refuse an application for stay will consider the special circumstances and its unique requirements. The court in exercising its powers under Order XLI Rule 4(2)
15. It was submitted that the ruling was delivered on 26/09/2023 after which the Memorandum of Appeal and current application were filed within 2 months hence there was no undue delay.
16. With regard to substantial loss, reliance was placed on Tropical Commodities Suppliers Ltd & Others -vs- International Credit Bank Ltd (in liquidation) [2004] 2 EA 331 where the court stated that;
“Substantial loss does not represent any particular mathematical formula. Rather, it is a qualitative concept. It refers to any loss, great or small, that is of real worth or value as distinguished from a loss without value or a loss that is merely nominal.”
17. Further reliance was placed on James Wangalwa & Another -vs- Agnes Naliaka Cheseto [2012] eKLR where the court stated;
“…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 ... 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.”
18. It was submitted that the Appellant purchased the subject vehicle in 2022 ad his family depends on it for movement. That if the same is impounded as ordered, then the enjoyment of his right to property under Article 40 of the Constitution will be violated. That, once a Constitutional right is violated, it may not be sufficiently compensated by way of money. That, the appeal is against the impounding of the vehicle and failure to issue the stay orders will defeat the whole purpose of the appeal and render it nugatory.
19. With regard to security, it was submitted that the Appellant is ready and willing to abide by any order of this court.
20. As to the purpose of a stay of execution pending appeal, reliance was placed on RWW -vs- EKW [2019] eKLR where the court stated;
“The purpose of an application for stay of execution pending an appeal is to preserve the subject matter in dispute so that the rights of the appellant who is exercising the undoubted right of appeal are safeguarded and the appeal if successful, is not rendered nugatory. However, in doing so, the court should weigh this right against the success of a litigant who should not be deprived of the fruits of his/her judgment. The court is also called upon to ensure that no party suffers prejudice that cannot be compensated by an award of costs.”
21. With regard to the injunctive orders sought, it was submitted that the Appellant has demonstrated that he has been in possession the subject vehicle since purchasing it in 2022 and has been using it to date. That, impounding the vehicle will violate the Appellant’s enjoyment of his right to property and the violation cannot be compensated by way of money. That, the Appellant has demonstrated that he has a prima facie case with probability of success and has shown that he will suffer irreparable damage if the interlocutory injunction is not granted. That, he has also demonstrated that the balance of convenience tilts in his favor as the appeal will be rendered academic or moot.
22. It was submitted that the theme advanced in Articles 25, 50 and 159 of the Constitution is that both parties should be given a chance to fairly prosecute their cases and the same be determined by the court on merit. That, hearing a matter substantively includes parties being heard on merit and more importantly parties being given an opportunity to exhaust all legal avenues and or mechanisms available in law, including appeals. Reliance was placed on First National Finance Bank Limited -vs- Universal Apparels (EPZ) Ltd & 2 others [2017] eKLR where the court stated;
“10. Nonetheless, Article 159 (2) (d) of the Constitution makes it clear that when called upon to administer Justice, the courts or any other tribunals which exercise judicial authority, shall not be blindly enslaved by procedural technicalities.
11. The Constitution does not urge the courts to disregard procedural rules. It only says that the courts should not have undue regard to procedural technicalities.
12. Ordinarily therefore, Article 159 (2) (d) of the Constitution ought to be a shield, rather than a spear. It ought to be invoked to protect a substantive application so that the application can be heard, rather than having the application struck out or dismissed on the basis of a technicality.
13. Article 159 (2) (d) should not, ordinarily, be the foundation upon
which an application is founded, when the law provides means through which the applicant can move the court.
14. I now move on to consider the provisions of Section 3A of the Civil Procedure Act.
15. First, the defendants did not make any submissions on that account. But in any event, I find that the Court of Appeal gave very useful remarks in the case of KENYA POWER & LIGHTING COMPANY LIMITED Vs. BENZENE HOLDINGS LIMITED T/A WYCO PAINTS, CIVIL APPEAL No. 132 of 2014 . This is what the
court said; “ Section 3A of the Civil Procedure Act appears to have been introduced to augment the provisions of Section 3, vesting in the courts inherent power to make any orders as may be necessary for the ends of justice or to prevent abuse of the process of the court. Of course, this power has now been broadened by the introduction in 2009 of Overriding Objective in sections 1A and 1B and 2010 by Article 159 of the Constitution”.
23. It was submitted that Section 3A of the Civil Procedure Act gives court inherent powers to issue such orders as may be necessary to meet the ends of justice as it was reinstated in Wachira Karani -vs- Bildad Wachira [2016] eKLR. That, Section 1A and 1B of the Civil Procedure Act enjoins the court to ensure that there is just determination of the dispute and that court should always opt for lower rather than the higher risk of injustice.
24. With regard to costs, reliance was placed on Section 27 of the Civil
Procedure Act for the submission that costs follow event.
The Respondent’s Submissions
25. For the first Respondent two issues are set out for determination;
a) Whether the Appellant stands to suffer substantial loss if the orders sought are not granted.
b) Whether the Appellant has furnished security as required by law.
26. They responded sights TARBO transporters limited versus ABSALOM DOVA LUMBASI [2013] eKLR for the proposition that an order of stay is granted at the discretion of court For sufficient cause upon the tripartite grounds of substantial loss no unreasonable delay in failing of the application and furnishing of security the respondent reinforces the argument by citing Elena D. Korir versus Kenyatta University [2012] eKLR.
27. As to whether the Appellant stands to suffer substantial loss, reliance the respondent cites Mukuma -vs- Abuoga (1988) KLR 645 where the Court of Appeal stated that; “Substantial loss is what has to be prevented by preserving the status quo because such loss would render the appeal nugatory.”
28. In Kenya Shell Ltd -vs- Kibiru (1986) KLR 410 the court expressed the view that where there is no substantial loss the appeal cannot be rendered nugatory. Further that;
Substantial loss in its various forms is the cornerstone of both jurisdictions for granting a stay. That is what has to be prevented. Therefore, without this evidence, it is difficult to see why the respondents should be kept out of their money. ”
29. Daniel Chebutui Rotich & 2 Others -vs- Emirates Airlines: Civil Case No 368 of 2001 where the court Defined substantial loss stating ;
“Substantial loss is a relative term and more often than not can be assessed by the totality of the consequences which an applicant is likely to suffer if stay of execution is not granted and that applicant is therefore forced to pay the decretal sum.”
30. It was Submitted that the applicant has not demonstrated that he will suffer substantial loss if the orders are not granted.
31. It was submitted that one of the orders granted by the trial court was a temporary injunction restraining the Appellant from transferring, altering, disposing off and or interfering in any way with the subject motor vehicle. That, the 1st Respondent was the plaintiff in the trial court and had sought protection as the ownership of the subject motor vehicle had been illegally changed without his involvement yet he was the registered owner. It was submitted that if this court grants the stay orders, there will be an open avenue for further disposal and/or change of ownership which will be detrimental to the 1st Respondent and will beat the very essence of the lower court matter which is pending determination.
32. On security the respondent relied on Kenya Commercial Bank -vs- Suncity Properties Ltd & 5 Others (2012) eKLR which speaks to the balancing of the competing interests of the appellant and the successful litigant that there ought to be security for the performance of the decree to await the outcome of their appeal
“In an application for stay, there are always competing interests that must be considered. There are that of a successful litigant who should not be denied the fruits of his judgment and that of an unsuccessful litigant exercising his undoubted right of appeal should be safeguarded from his appeal being rendered nugatory. In a bid to balance the two competing interests, the court usually makes an order for suitable security for the due performance of the decree as parties await the outcome of the appeal.”
33. On the importance of security the respondent refers to Equity Bank Ltd -vs- Taiga Adams Company Ltd [2006] eKLR where the court stated;
“ …of even greater impact is the fact that an applicant has not offered security at all and this is one of the mandatory tenets under which the application is brought…let me conclude by stressing that of all the four, not one or some, must be met before this court can grant an order of stay.”
34. And also MACHIRA trading as MACHIRA & Company Advocates vs East African Standard [2000] KLR 63
35. This court was urged to impose an order of security for due performance of the trial court ruling pending determination of the appeal.
36. With regard to the prayer for injunction, it was submitted that an applicant must prove that he has a prima facie case with probability of success, that he stands to suffer irreparable loss which cannot be compensated by damages and that the balance of convenience tilts in his favor.
37. Having looked at the application, response and submissions, the only issue for determination is whether the application is merited.
Whether the application is merited
38. According to Order 42 Rule 6 of the Civil Procedure Rules, the conditions which should guide the Court in determining whether to grant stay pending appeal are; whether substantial loss will occur if stay is not granted, whether the application has been filed without unreasonable delay and furnishing security for the due performance of the decree.
39. The ruling by the trial court was delivered on 26/09/2023 and this application was filed on 10/11/2023. Evidently, there was no unreasonable delay.
40. As for substantial loss, the 1st Respondent is apprehensive that if stay orders are granted, there will be an open avenue for further disposal of the vehicle or change of ownership. The orders arising from the ruling of the trial court were inter alia ;
a) That a temporary injunction be and is hereby issued restraining the respondents herein, their employees, agents and representatives acting on their behalf from altering, offering for sale, selling, disposing off, transferring and/or interfering in any way with motor vehicles registration No. KCM 715U and KCK 288G pending hearing and determination of the suit herein.
b) That an order is hereby issued directing the 4th Respondent to register caveat against the records of these motor vehicles registration No. KCM 715U and KCK 288G.
c) That an order is hereby issued directing the OCS Makueni Police Station to impound these suit motor vehicles pending hearing and determination of this suit .
41. Having looked at all the material placed before this court; it is evident that determination of ownership of the subject vehicle is still pending before the trial court hence issuing a stay against the trial court’s orders (a) and (b) above will lift the safeguard intended to preserve the subject matter of the suit.
42. As for the trial court’s order (c) above, the same buttresses the Applicant’s assertion that he has been in possession of the suit motor vehicle since the inception of the suit. The exhibited plaint was filed on 27/01/2023 and the impugned trial court orders were issued on 03/10/2023. Evidently the Applicant could have dealt adversely with the vehicle, but never did. Taking the vehicle from his possession through impounding would disturb the status quo causing substantial inconvenience to the Applicant, yet the matter is still pending determination of the issue of the ownership of the Motor Vehicle Registration Number KCK 288 G which the applicant avers he purchased from one Simon M.MURUTHI. The1st respondent’s position is that he had left this m/v motor vehicle together with another one registration number KCM 715 U with his wife. In an interlocutory application in the subordinate court the first respondent sought the release of the motor vehicle to him it turned out that there was a dispute between him the 1st respondent in MCCC 126 of 2022 who he claimed was his wife and in whose custody he had left the said motor vehicles . The applicant dissatisfied with the ruling of the magistrate lodged a memorandum of appeal together with this application
43. In the prevailing circumstances it is in interest of justice therefore, the trial courts order (c) above is stayed but again to balance the competing interests the applicant should not be able to dispose of the m/vehicle.
44. As for security, the Applicant has undertaken to comply with any orders issued by this court.
45. There is need to maintain the status quo, pending appeal /trial hence the injunction sought is merited to bar the Respondents from interfering with the Applicant’s peaceful utilization of motor vehicle KCK 288G.
46. What orders should issue?
47. In my view this is an appeal from interlocutory orders that were made ostensibly to preserve the subject matter of the suit. However, it is evident to me that the orders granted went beyond that and would have been final orders vis a vis the applicant yet the dispute on ownership of the m/v had not been determined. The crux of the matter is to determine the ownership of the m/vehicle.
48. I find that there is expediency in dealing with the suit without going any further than this and since I am persuaded that the applicant merits the order of stay, it will serve the interests of justice for the parties to return to the subordinate court and expedite the substantive suit.
49. The powers of this court on appeal are set out at s. 80 of the CPA;
78. Powers of appellate court (1) Subject to such conditions and limitations as may be prescribed, an appellate court shall have power—
(a) to determine a case finally;
(b) to remand a case;
(c) to frame issues and refer them for trial;
(d) to take additional evidence or to require the evidence to be taken;
(e) to order a new trial.
50. The CPR at order 42 rule 24 provides for Remand of cases
[Order 42, rule 24.] Where the court from whose decree an appeal is preferred has disposed of the suit upon a preliminary point, and the decree is reversed on appeal, the court to which the appeal is \ preferred may, if it deems fit, by order remand the case, and may further direct what issue or issues shall be tried in the case so remanded, and shall send a copy of its judgment and order to the court from whose decree the appeal is preferred, with directions to re-admit the suit under its original number in the register of civil suits, and proceed to determine the suit; and the evidence, if any, recorded during the original trial shall, subject to all just exceptions, be evidence during the trial after remand.
51. Further Article 159 of the Constitution provides inter alia
(1)Judicial authority is derived from the people and vests in, and shall be exercised by, the courts and tribunals established by or under this Constitution.
(2) In exercising judicial authority, the courts and tribunals shall be guided by the following principles —
(a) justice shall be done to all, irrespective of status;
(b) justice shall not be delayed;
(c) alternative forms of dispute resolution including reconciliation, mediation, arbitration and traditional dispute resolution mechanisms shall be promoted, subject to clause (3);
(d) justice shall be administered without undue regard to procedural technicalities; and (e) the purpose and principles of this Constitution shall be protected and promoted.
In the circumstances ;
52. The application has merit: The following orders issue.
i. This matter is remanded to the trial court to hear and determine the suit Makueni MCCC E126 of 2022 on its merits. The matter be mentioned before the trial magistrate within 7 days hereof for directions.
ii. There be a stay of orders issued arising from the ruling delivered on 26/09/2023 in Makueni MCCC E126 of 2022 pending the hearing and determination of the suit.
iii. There be a stay of the orders issued directing the OCS Makueni Police station to impound the Appellant’s motor vehicle KCK 288G pending the hearing and determination of the suit.
i) That an injunction do issue barring the Respondents either by themselves jointly and severally or their agents, servants, employees, assigns and or any persons acting under the control, direction and or command from interfering with the Appellant’s quiet and peaceful usage and or utilization of the motor vehicle KCK 288G pending the hearing and determination of the suit.
j) That order is hereby issued directing the 4th Respondent to register caveat against the records of motor vehicles registration KCK 288G
The applicant is to deposit the sum of Ksh 250,000 in court within 45 days hereof as security. In default all the stay orders will lapse .
k) The costs of this application to abide the suit.
l) The parties are also encouraged to attempt ADR as provided by Article 159(2) ( c) of the Constitution.
Orders accordingly.
Dated, signed and delivered this 3rd October 2025
Mumbua T Matheka
Judge
CA Chrispol
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