'1. Before me for determination is a notice of motion brought pursuant to sections 1A, 1B ,3A and 63 [e] of the civil procedure act cap 21 laws of kenya order 40 and 51 of the civil procedure rules 2010.
2. The applicant herein prays that;
a. spent
b. spent
c. Pending the hearing and determination of the instant appeal herin , the honourable court be pleased to issue an interlocutory injuction against the respondent by himself , his agent and in particular Patrick omare Barongo T/A bama auctioneers through his agent MOCO auctioneers and or any other agents , servants , representatives and or any other person acting undr the respondents authority from proceeding with the sale /auction or private treaty alienating , disposing or in any other way dealing with motor vehicles registration number KCP 665F TOYOTA HIACE and KDD 811 A TOYOTA SHARK by public auction.
d. Cost of this application be provided for
e. Such further and /or other orders as the court may deem fit just and expedient in circumstance.
3. Which application was brought on the grounds that;
a.the respondents agent one Patrick Omare Barongo has advertised for sale throough public auction the appellant/applicant two motor vehicles to wit ; KCP 665 F TOYOTA HIACE and KDD 811 A TOYOTA SHARK
b.the sale by public auction was scheduled for Friday 13th June , 2025 to recover kshs 94,745/= being Bama auctioneers cost assessed in kisii miscellaneous E102 OF 2023 which costs were awarded through the ruling of hon W KUGWA RM delivered and dated 22nd day of November 2023 , in kisii magistrates civil case no 329 0f 2020 and which ruling is the subject of the instant appeal before this honourable court.
c. in the pendency of the instant Appeal the Respondent’s Agent one Patrick Omare Barongo T/A Bama Auctioneers filed a Miscellaneous Application to wit: Kisii Miscellaneous E102 of 2023 seeking to have his Auctioneer’s costs awarded in the Ruling of the Honourable W. KUGWA (RM) delivered and Dated on 22nd day of November, 2023 in Kisii Chief Magistrates Civil Case Number 329 of 2020 (the subject of this Appeal) assessed.
d. Subsequently on the 30th January, 2025 the Honourable C. C. RONO (RM) delivered a Ruling in the absence of the parties assessing Bama Auctioneer’s costs at Kshs. 94,745/=.
e. The instant Appeal is scheduled for Hearing by way of written submissions on the 22nd September, 2025.
f. The instant Appeal is challenging the Ruling of the Honourable W. KUGWA (RM) delivered and Dated on 22nd day of November, 2023 awarding Bama Auctioneer’s, Auctioneer’s costs on several grounds inter alia:
g. The learned trial Magistrate erred in law and fact by delivering a contradictory Ruling wherein the court acknowledged in its Ruling that wrong procedure was used by the Respondent’s claims on the decretal sums plus costs but in a strange turn of events the final orders the trial court slaps the Appellant the victim of the “wrong procedure” with an order to pay the perpetrator of the “wrong procedure”, Auctioneer’s costs.
h.Counsel for the Appellant/Applicant engaged the Respondent’s Agent one Patrick Omare Barongo T/A Bama Auctioneers and a gentleman’s agreement was reached that the payment of the Auctioneer’s costs of Kshs. 94,745/= awaits the outcome of the instant Appeal. counsel for the Appellant/Applicant was taken a back on the 10th day of June, 2025 when the instructing client forwarded Warrants of Attachment of Moveable Property issued on the 7th May, 2025 issued to MOCO AUCTIONEERS in execution of the Auctioneers’ costs of Kshs. 94,745/=
i. The sale by public auction is scheduled tomorrow Friday 13th June, 2025 at 10.00 am and unless the Honourable Court is pleased to intervene, Appellant/Applicant will certainly lose his motor vehicles despite the fact that he exercised his right of Appeal through filing the instant Appeal which will most definitely be rendered nugatory should the sale by public auction proceed.j. the Appellant/Applicant’s craves the Honourable Court’s intervention to protect his constitutionally guaranteed right of Appeal which is now threated by the impending sale by public auction.
k.the Appellant/Applicants stand to suffer substantial losses and irreparable losses unless this Honourable court intervenes. there exist special circumstances that necessitate the instant Application being heard on priority. The appicants appeal herein raised triable issues in the memorandum with high chances of success, it has been made timeously in good faith and due promptitude and that it is in the interest of justice that the application herein be allowed.
Issues for determination.
4. I have considered the application herein , the annexed documents , the application is unopposed therefore the issue for determination is
Whether the application herein meets the threshold for grant of orders sought.
Analysis
5. Order 42 rule 6 states that ; No appeal or second appeal shall operate as a stay of execution or proceedings under a decree or order appealed from except in so far as the court appealed from may order but, the court appealed from may for sufficient cause order stay of execution of such decree or order, and whether the application for such stay shall have been granted or refused by the court appealed from, the court to which such appeal is preferred shall be at liberty, on application being made, to consider such application and to make such order thereon as may to it seem just, and any person aggrieved by an order of stay made by the court from whose decision the appeal is preferred may apply to the appellate court to have such order set aside.
(2) No order for stay of execution shall be made under subrule (1) unless—
(a) the court is satisfied that substantial loss may result to the applicant unless the order is made and that the application has been made without unreasonable delay; and
(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.
(3) Notwithstanding anything contained in subrule (2), the court shall have power, without formal application made, to order upon such terms as it may deem fit a stay of execution pending the hearing of a formal application.
(4) For the purposes of this rule an appeal to the Court of Appeal shall be deemed to have been filed when under the Rules of that Court notice of appeal has been given.
(5) An application for stay of execution may be made informally immediately following the delivery of judgment or ruling.
(6) Notwithstanding anything contained in subrule (1) of this rule the High Court shall have power in the exercise of its appellate jurisdiction to grant a temporary injunction on such terms as it thinks just provided the procedure for instituting an appeal from a subordinate court or tribunal has been complied with.
6. An applicant for stay of execution of a decree or order pending appeal is obliged to satisfy the conditions set out in Order 42 Rule 6(2), aforementioned: namely (a) that substantial loss may result to the applicant unless the order is made, (b) that the application has been made without unreasonable delay, and (c) that such security as the court orders for the due performance of such decree or order as may ultimately be binding on the applicant has been given.
7. The law of temporary injunction pending hearing and determination of suits was laid down in the celebrated case of Giella vs Casman brown to with the applicant must establish a prima facie case with high chances of a success , irreparable loss , balance of convenience or balance of convenience . on prima facie case, the applicant has annexed a memorandum of appeal which raised the issue of the impugned ruling being per Incuriam among other grounds the same was not challenged . The memorandum raises arguable issues with high chances of success. . on irreparable loss . the appeal is on cost as which is a money decree and so the damage cannot be said to be irreparable . on balance of convenience , the applicant will be inconvenienced by execution by sale of his vehicles if the appeal succeeds as he will have lost his vehicles and we are not told whether the resident can refund the value of the vehicles . The balance of convenience tilts in favour of the applicant
8. In Butt v Rent Restriction Tribunal [1982] KLR 417 at page 419 Madan JA (as he was then) held as follows:
“ It is in the discretion of the court to grant or refuse a stay but what has to be judged in every
Case is whether there are or not particular circumstances in the case to make an order staying execution. It has been said that the court as a general rule ought to exercise its best discretion in a way so as not to prevent the appeal, if successful from being nugatory, per Brett, LJ in Wilson v Church (No 2) 12 Ch D (1879) 454 at p 459. In the same case, Cotton LJ said at p 459:
“I will state my opinion that when a party is appealing, exercising his undoubted
right of appeal, this court ought to see that the appeal, if successful, is not
nugatory.”
8.As to what substantial loss is, it was observed in James Wangalwa &Another vs. Agnes Naliaka Cheseto [2012] eKLR, that:
“No doubt, in law, the fact that the process of execution has been put in motion, or is likely
to be put in motion, by itself, does not amount to substantial loss. Even when execution has been levied and completed, that is to say, the attached properties have been sold, as is the case here, does not in itself amount to substantial loss under Order 42 Rule 6 of the CPR. This is so because execution is a lawful process. 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 th estatus quo because such loss would render the appeal nugatory.”
9.With regard to security for costs, the court in Absalom Dova vs. Tarbo Transporters [2013] eKLR, stated:
“The discretionary relief of stay of execution pending appeal is designed on the basis that no one would be worse off by virtue of an order of the court ;as such order does not introduce any disadvantage, but administers the justice that the case deserves. This is in recognition that both parties have rights; the Appellant to his appeal which includes the prospects that the appeal will not be rendered nugatory; and the decree holder to the decree which includes full benefits under the decree. The court in balancing the two competing rights focuses on their reconciliation…”
10. This court has the discretion to allow the application herein . The applicant has already filed and appeal which I can say is arguable at this stage . He has a right to be heard on the appeal and it will be rendered nugatory unless the stay sought is granted and the loss will be substantial . Though the application was filed over two years after the impugned ruling the appeal has been admitted and is ready for hearing as directions for service of record of appeal and submissions were issued on 5.5.22 and it was to be mentioned for compliance on 22.9.25.
9. 10. The applicant did not offer security as required by order 42 Rule 6 (2)(c ) CPC. In the upshot ,the application is merited .I allow the application dated 12.6.25 in terms of prayer 3 on condition that half of the taxed costs be deposited in court within 30 days from today . directions on 4.3.26 . mention notice to issue .
DELIVERED ON THIS 2ND DAY OF OCTOBER 2025 IN THE PRESENCE OF CA : KIPCHRCHIR PARATIES ABSENT
'
2. The applicant herein prays that;
a. spent
b. spent
c. Pending the hearing and determination of the instant appeal herin , the honourable court be pleased to issue an interlocutory injuction against the respondent by himself , his agent and in particular Patrick omare Barongo T/A bama auctioneers through his agent MOCO auctioneers and or any other agents , servants , representatives and or any other person acting undr the respondents authority from proceeding with the sale /auction or private treaty alienating , disposing or in any other way dealing with motor vehicles registration number KCP 665F TOYOTA HIACE and KDD 811 A TOYOTA SHARK by public auction.
d. Cost of this application be provided for
e. Such further and /or other orders as the court may deem fit just and expedient in circumstance.
3. Which application was brought on the grounds that;
a.the respondents agent one Patrick Omare Barongo has advertised for sale throough public auction the appellant/applicant two motor vehicles to wit ; KCP 665 F TOYOTA HIACE and KDD 811 A TOYOTA SHARK
b.the sale by public auction was scheduled for Friday 13th June , 2025 to recover kshs 94,745/= being Bama auctioneers cost assessed in kisii miscellaneous E102 OF 2023 which costs were awarded through the ruling of hon W KUGWA RM delivered and dated 22nd day of November 2023 , in kisii magistrates civil case no 329 0f 2020 and which ruling is the subject of the instant appeal before this honourable court.
c. in the pendency of the instant Appeal the Respondent’s Agent one Patrick Omare Barongo T/A Bama Auctioneers filed a Miscellaneous Application to wit: Kisii Miscellaneous E102 of 2023 seeking to have his Auctioneer’s costs awarded in the Ruling of the Honourable W. KUGWA (RM) delivered and Dated on 22nd day of November, 2023 in Kisii Chief Magistrates Civil Case Number 329 of 2020 (the subject of this Appeal) assessed.
d. Subsequently on the 30th January, 2025 the Honourable C. C. RONO (RM) delivered a Ruling in the absence of the parties assessing Bama Auctioneer’s costs at Kshs. 94,745/=.
e. The instant Appeal is scheduled for Hearing by way of written submissions on the 22nd September, 2025.
f. The instant Appeal is challenging the Ruling of the Honourable W. KUGWA (RM) delivered and Dated on 22nd day of November, 2023 awarding Bama Auctioneer’s, Auctioneer’s costs on several grounds inter alia:
g. The learned trial Magistrate erred in law and fact by delivering a contradictory Ruling wherein the court acknowledged in its Ruling that wrong procedure was used by the Respondent’s claims on the decretal sums plus costs but in a strange turn of events the final orders the trial court slaps the Appellant the victim of the “wrong procedure” with an order to pay the perpetrator of the “wrong procedure”, Auctioneer’s costs.
h.Counsel for the Appellant/Applicant engaged the Respondent’s Agent one Patrick Omare Barongo T/A Bama Auctioneers and a gentleman’s agreement was reached that the payment of the Auctioneer’s costs of Kshs. 94,745/= awaits the outcome of the instant Appeal. counsel for the Appellant/Applicant was taken a back on the 10th day of June, 2025 when the instructing client forwarded Warrants of Attachment of Moveable Property issued on the 7th May, 2025 issued to MOCO AUCTIONEERS in execution of the Auctioneers’ costs of Kshs. 94,745/=
i. The sale by public auction is scheduled tomorrow Friday 13th June, 2025 at 10.00 am and unless the Honourable Court is pleased to intervene, Appellant/Applicant will certainly lose his motor vehicles despite the fact that he exercised his right of Appeal through filing the instant Appeal which will most definitely be rendered nugatory should the sale by public auction proceed.j. the Appellant/Applicant’s craves the Honourable Court’s intervention to protect his constitutionally guaranteed right of Appeal which is now threated by the impending sale by public auction.
k.the Appellant/Applicants stand to suffer substantial losses and irreparable losses unless this Honourable court intervenes. there exist special circumstances that necessitate the instant Application being heard on priority. The appicants appeal herein raised triable issues in the memorandum with high chances of success, it has been made timeously in good faith and due promptitude and that it is in the interest of justice that the application herein be allowed.
Issues for determination.
4. I have considered the application herein , the annexed documents , the application is unopposed therefore the issue for determination is
Whether the application herein meets the threshold for grant of orders sought.
Analysis
5. Order 42 rule 6 states that ; No appeal or second appeal shall operate as a stay of execution or proceedings under a decree or order appealed from except in so far as the court appealed from may order but, the court appealed from may for sufficient cause order stay of execution of such decree or order, and whether the application for such stay shall have been granted or refused by the court appealed from, the court to which such appeal is preferred shall be at liberty, on application being made, to consider such application and to make such order thereon as may to it seem just, and any person aggrieved by an order of stay made by the court from whose decision the appeal is preferred may apply to the appellate court to have such order set aside.
(2) No order for stay of execution shall be made under subrule (1) unless—
(a) the court is satisfied that substantial loss may result to the applicant unless the order is made and that the application has been made without unreasonable delay; and
(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.
(3) Notwithstanding anything contained in subrule (2), the court shall have power, without formal application made, to order upon such terms as it may deem fit a stay of execution pending the hearing of a formal application.
(4) For the purposes of this rule an appeal to the Court of Appeal shall be deemed to have been filed when under the Rules of that Court notice of appeal has been given.
(5) An application for stay of execution may be made informally immediately following the delivery of judgment or ruling.
(6) Notwithstanding anything contained in subrule (1) of this rule the High Court shall have power in the exercise of its appellate jurisdiction to grant a temporary injunction on such terms as it thinks just provided the procedure for instituting an appeal from a subordinate court or tribunal has been complied with.
6. An applicant for stay of execution of a decree or order pending appeal is obliged to satisfy the conditions set out in Order 42 Rule 6(2), aforementioned: namely (a) that substantial loss may result to the applicant unless the order is made, (b) that the application has been made without unreasonable delay, and (c) that such security as the court orders for the due performance of such decree or order as may ultimately be binding on the applicant has been given.
7. The law of temporary injunction pending hearing and determination of suits was laid down in the celebrated case of Giella vs Casman brown to with the applicant must establish a prima facie case with high chances of a success , irreparable loss , balance of convenience or balance of convenience . on prima facie case, the applicant has annexed a memorandum of appeal which raised the issue of the impugned ruling being per Incuriam among other grounds the same was not challenged . The memorandum raises arguable issues with high chances of success. . on irreparable loss . the appeal is on cost as which is a money decree and so the damage cannot be said to be irreparable . on balance of convenience , the applicant will be inconvenienced by execution by sale of his vehicles if the appeal succeeds as he will have lost his vehicles and we are not told whether the resident can refund the value of the vehicles . The balance of convenience tilts in favour of the applicant
8. In Butt v Rent Restriction Tribunal [1982] KLR 417 at page 419 Madan JA (as he was then) held as follows:
“ It is in the discretion of the court to grant or refuse a stay but what has to be judged in every
Case is whether there are or not particular circumstances in the case to make an order staying execution. It has been said that the court as a general rule ought to exercise its best discretion in a way so as not to prevent the appeal, if successful from being nugatory, per Brett, LJ in Wilson v Church (No 2) 12 Ch D (1879) 454 at p 459. In the same case, Cotton LJ said at p 459:
“I will state my opinion that when a party is appealing, exercising his undoubted
right of appeal, this court ought to see that the appeal, if successful, is not
nugatory.”
8.As to what substantial loss is, it was observed in James Wangalwa &Another vs. Agnes Naliaka Cheseto [2012] eKLR, that:
“No doubt, in law, the fact that the process of execution has been put in motion, or is likely
to be put in motion, by itself, does not amount to substantial loss. Even when execution has been levied and completed, that is to say, the attached properties have been sold, as is the case here, does not in itself amount to substantial loss under Order 42 Rule 6 of the CPR. This is so because execution is a lawful process. 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 th estatus quo because such loss would render the appeal nugatory.”
9.With regard to security for costs, the court in Absalom Dova vs. Tarbo Transporters [2013] eKLR, stated:
“The discretionary relief of stay of execution pending appeal is designed on the basis that no one would be worse off by virtue of an order of the court ;as such order does not introduce any disadvantage, but administers the justice that the case deserves. This is in recognition that both parties have rights; the Appellant to his appeal which includes the prospects that the appeal will not be rendered nugatory; and the decree holder to the decree which includes full benefits under the decree. The court in balancing the two competing rights focuses on their reconciliation…”
10. This court has the discretion to allow the application herein . The applicant has already filed and appeal which I can say is arguable at this stage . He has a right to be heard on the appeal and it will be rendered nugatory unless the stay sought is granted and the loss will be substantial . Though the application was filed over two years after the impugned ruling the appeal has been admitted and is ready for hearing as directions for service of record of appeal and submissions were issued on 5.5.22 and it was to be mentioned for compliance on 22.9.25.
9. 10. The applicant did not offer security as required by order 42 Rule 6 (2)(c ) CPC. In the upshot ,the application is merited .I allow the application dated 12.6.25 in terms of prayer 3 on condition that half of the taxed costs be deposited in court within 30 days from today . directions on 4.3.26 . mention notice to issue .
DELIVERED ON THIS 2ND DAY OF OCTOBER 2025 IN THE PRESENCE OF CA : KIPCHRCHIR PARATIES ABSENT
'