1. In a ruling delivered on 30th January 2026, the court below dismissed the application dated 18th September 2025, through which the appellant sought a prohibitory injunction. The respondents were awarded the costs of the application. The court held that the application lacked merit because the conditions for granting an injunction, as established in Giella v Cassman Brown & Co Ltd (1973) EA 358, had not been satisfied.
2. The setback did not deter the appellant. He filed a memorandum of appeal dated 4th February 2026, elaborately setting out his misgivings. Simultaneously, he filed the application now before me, vide which he sought a stay of execution pending appeal.
3. The application dated 4th February 2026 is opposed. The 1st respondent filed a replying affidavit sworn by Ms Angela Njeri, its Manager of the Recoveries Department, in which it was contended that the court below dismissed an application seeking injunctive relief. She further argued that there was no positive order capable of being stayed. Regarding the merit of the application, Ms Njeri stated that the intended appeal had no prospects of success and could therefore not be rendered nugatory.
4. An injunction is an equitable relief that is granted by courts in the exercise of discretionary powers. The discretion, in the hackneyed phrase so beloved of the bench, is a remedy exercised judiciously, and not on whimsy or caprice. The court below considered the application on its merits and, in a reasoned decision, dismissed the application. The dismissal by the court of first instance cannot be taken lightly by this court.
5. In the case of Mbogo & another v Shah (1968) EA 93, the Court of Appeal for East Africa expressed itself thus:
“…. That this court will not interfere with the exercise of judicial discretion by an inferior court unless it is satisfied that its decision is clearly wrong, because it has misdirected itself or because it has acted on matters which it should not have acted, or because it failed to take into consideration matters which should have taken into consideration, and in doing so arrived at a wrong conclusion.”
6. The above finding, though made upon consideration of an appeal on the merits, not an application seeking a stay of execution, should have a salutary effect. It calls on this court to give due regard to the decision of the inferior court.
7. That said, and as rightly contended by the respondent, Hon Sogomo merely dismissed an application for an injunction. He issued no positive order capable of being stayed. There are numerous decisions of the courts of record holding that negative orders may not be stayed.
8. In the case of Cooperative Bank of Kenya Ltd v Banking Insurance & Finance Union (Kenya) [2015] eKLR, it was held that:
“An order or stay of execution pending appeal is ordinarily an interim order which seeks to delay the performance of a positive obligation that is set out in a decree as a result of a judgment. The delay presupposes the existence of a situation to stay called a positive order, either an order that has not been complied with or has partly been complied with.”
9. Although the rules permit the granting of an injunction pending appeal, under Order 42 rule 6(6) of the Civil Procedure Rules, the applicant didn’t invoke the said provision. In my view, this Court cannot grant him what he didn’t ask for.
10. The upshot of the foregoing is that the application dated 4th February 2026 is dismissed for want of merit.
11. The 1st respondent shall have the costs of the application.
12. It is so ordered.
Dated and signed at Mombasa, this 16th day of March 2026. Delivered virtually through Microsoft TEAMS.
2. The setback did not deter the appellant. He filed a memorandum of appeal dated 4th February 2026, elaborately setting out his misgivings. Simultaneously, he filed the application now before me, vide which he sought a stay of execution pending appeal.
3. The application dated 4th February 2026 is opposed. The 1st respondent filed a replying affidavit sworn by Ms Angela Njeri, its Manager of the Recoveries Department, in which it was contended that the court below dismissed an application seeking injunctive relief. She further argued that there was no positive order capable of being stayed. Regarding the merit of the application, Ms Njeri stated that the intended appeal had no prospects of success and could therefore not be rendered nugatory.
4. An injunction is an equitable relief that is granted by courts in the exercise of discretionary powers. The discretion, in the hackneyed phrase so beloved of the bench, is a remedy exercised judiciously, and not on whimsy or caprice. The court below considered the application on its merits and, in a reasoned decision, dismissed the application. The dismissal by the court of first instance cannot be taken lightly by this court.
5. In the case of Mbogo & another v Shah (1968) EA 93, the Court of Appeal for East Africa expressed itself thus:
“…. That this court will not interfere with the exercise of judicial discretion by an inferior court unless it is satisfied that its decision is clearly wrong, because it has misdirected itself or because it has acted on matters which it should not have acted, or because it failed to take into consideration matters which should have taken into consideration, and in doing so arrived at a wrong conclusion.”
6. The above finding, though made upon consideration of an appeal on the merits, not an application seeking a stay of execution, should have a salutary effect. It calls on this court to give due regard to the decision of the inferior court.
7. That said, and as rightly contended by the respondent, Hon Sogomo merely dismissed an application for an injunction. He issued no positive order capable of being stayed. There are numerous decisions of the courts of record holding that negative orders may not be stayed.
8. In the case of Cooperative Bank of Kenya Ltd v Banking Insurance & Finance Union (Kenya) [2015] eKLR, it was held that:
“An order or stay of execution pending appeal is ordinarily an interim order which seeks to delay the performance of a positive obligation that is set out in a decree as a result of a judgment. The delay presupposes the existence of a situation to stay called a positive order, either an order that has not been complied with or has partly been complied with.”
9. Although the rules permit the granting of an injunction pending appeal, under Order 42 rule 6(6) of the Civil Procedure Rules, the applicant didn’t invoke the said provision. In my view, this Court cannot grant him what he didn’t ask for.
10. The upshot of the foregoing is that the application dated 4th February 2026 is dismissed for want of merit.
11. The 1st respondent shall have the costs of the application.
12. It is so ordered.
Dated and signed at Mombasa, this 16th day of March 2026. Delivered virtually through Microsoft TEAMS.