' [1] The Notice of Motion dated 28 th February 2024 was filed by the Judgment Debtor (hereinafter, “the applicant”) against the Decree Holder, George Miyare T/A Miyare & Company Advocates (the respondent). It was filed under Sections 1A, 1B, 3A and 63 of the Civil Procedure Act, Chapter 21 of the Laws of Kenya as well as Order 22 Rule 22 and Order 42 Rule 6 of the Civil Procedure Rules, 2010. The applicant seeks for the following orders:
[a] Spent
[b] Spent
[c] That there be stay of execution of the ruling/order delivered on 9 th February 2024 pending the hearing and determination of the appeal
[d] That costs of the application be provided for.
[2] The application was premised on the grounds that the applicant had filed an appeal against the ruling delivered herein on 9 th February 2024; and that it is in the interest of justice that there be stay of execution. The applicant further contended that the respondent will not suffer any prejudice if stay is granted.
[3] The application was supported by the applicant’s own affidavit sworn on 28 th February 2024 in which he deposed that, on the 9 th February 2024 the Deputy Registrar delivered a ruling in respect of the Preliminary Objection dated 8 th August 2023. The applicant averred that he has already filed a Notice of Appeal and that he intends to prosecute the appeal to its logical conclusion.
[4] The applicant contended that the appeal will serve no purpose if the respondent is allowed to proceed with execution as intended. He annexed to his affidavit a copy of the Notice of Appeal as Annexure “OEE 1” and posited that the respondent will not be prejudiced in any way by the issuance of an order of stay of execution.
[5] The application was opposed by the respondent. He filed a Replying Affidavit sworn on 5 th February 2024. He reiterated that on the 9 th February 2024, the Deputy Registrar delivered a ruling on the applicant’s Preliminary Objection dated 8 th August 2023 in opposition to his application for Notice to Show Cause dated 26 th July 2023. According to the respondent, no positive obligations were created or placed upon either party by the said ruling or order of dismissal; and therefore that it is incapable of execution.
[6] The respondent further averred that, since the impugned decision is that of the subordinate court, any appeal therefrom should be to the High Court by way of a Memorandum of Appeal and not in the manner purported. Therefore, according to the respondent, the appeal is not only misconceived but is also incompetent and liable to dismissal and/or striking out in limine .
[7] The respondent also mentioned that the applicant has failed to deposit the decretal sum as a sign of good faith. He averred therefore that the applicant does not merit favourable exercise of the Court’s discretion. He consequently prayed for the dismissal of the application with costs.
[8] The application was urged by way of written submissions. Accordingly, the applicant relied on the written submissions dated 20 th June 2024. He justified the filing of the Notice of Appeal contending that the Preliminary Objection and the ensuing ruling ought to have been handled by a judge and not any other judicial officer; and that since it was handled in a High Court matter by the Deputy Registrar, an appeal therefrom can only be filed before the Court of Appeal.
[9] The applicant then proceeded to make submissions that for an application under Rule 5(2)(b) of the Court of Appeal Rules to succeed the applicant need only prove that:
[a] The appeal or intended appeal is an arguable one; and
[b] That if an order is not granted the appeal would be rendered nugatory.
[10] The applicant relied on Kenya Shell Ltd v Kibiru [1986] KLR 410 and Butt v Rent Restriction Tribunal [1979] eKLR in urging the Court to find that the applicant has made out a good case for stay of execution. He pointed out that he has already filed a Notice of Appeal and contended that the appeal is not frivolous. According to the applicant, the appeal will be rendered nugatory as the respondent will proceed to execute for the decretal sum based on an irregular execution proceeding.
[11] The respondent filed written submissions dated 16 th October 2024. He contended that since the impugned ruling was in the nature of a negative order, namely, a dismissal, it is incapable of being stayed. To underscore his argument, the respondent relied on Jennifer Akinyi Osodo v Boniface Okumu Osodo & others [2021] KECA 465 (KLR) in which the Court of Appeal quoted from Kisii HCCA No. 15 of 2010: Raymond Omboga v Austine Pyan Maranga .
[12] The second limb of the respondent’s submissions was that the intended appeal is incompetent ab initio , on account of being filed before the wrong forum. He relied on Order 49 Rule 5 of the Civil Procedure Rules to buttress his argument that an appeal from or objection to the decision of a deputy registrar ought to be filed before a judge of the High Court. Accordingly, the respondent urged for the dismissal of the application dated 28 th February 2024.
[13] I have given due consideration to the application as well as the submissions made by the parties. I have no hesitation in disregarding the submissions made by the respondent on the viability or competence of the applicant’s appeal. That is an issue that falls within the purview of the Court of Appeal and therefore the applicant’s submissions touching on Rule 5(2)(b) of the Court of Appeal Rules were off-mark in my view. Accordingly, the only issue for determination is whether the applicant has made out a good case for stay of execution from the standpoint of Order 42 Rule 6 of the Civil Procedure Rules.
[14] Order 42 of the Civil Procedure Rules provides:
“(1) 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.
[15] Rule 6 above presupposes that the application for stay be in respect of either a decree or order from which an appeal has been filed. In this case the ruling in respect of the dismissal order made by the Deputy Registrar on 9 th February 2024. There is no dispute that the outcome was a negative order in that the applicant’s Preliminary Objection was dismissed with costs.
[16] It is now trite that a negative order is incapable of execution and therefore not amenable to stay for purposes of Order 42 Rule 6 of the Civil Procedure Rules . Thus, in Raymond M. Omboga v Austine Pyan Maranga , Kisii HCCA No. 15 of 2010, Hon. Makhandia, J. (as he then was) held:
“…The order dismissing the application is in the nature of a negative order and is incapable of execution save, perhaps, for costs and such order is incapable of stay. Where there is no positive order made in favour of the respondent which is capable of execution, there can be no stay of execution of such an order...The applicant seeks to appeal against the order dismissing his application. This is not an order capable of being stayed because there is nothing that the applicant has lost. The refusal simply means that the applicant stays in the situation he was in before coming to court and therefore the issues of substantial loss that he is likely to suffer and or the appeal being rendered nugatory do not arise...”
[17] Whereas in this instance there is a decree pending execution, that is not the decree the subject of appeal. In Raymond M Omboga v Austine Pyan Maranga (supra), it was held:
“The court cannot see how it can order stay of the decree that is not the subject of an appeal. Had the aforesaid order been the subject of this appeal then different considerations would have applied. The court would have looked at it alongside the settled principles aforesaid for granting stay of decree...It is trite law that stay of execution pending appeal can only be granted against the order being appealed against. Put differently, an order for stay of execution pending appeal cannot be granted if the intended appeal is not against the order sought to be stayed; yet this is what obtains in this application where the applicant’s appeal is against the order of dismissal of his application, yet the stay sought is against the subordinate court’s judgement or decree.”
[18] Similarly, in Co-operative Bank of Kenya Ltd v Banking Insurance & Finance Union (Kenya) [2015] eKLR, the Court of Appeal (per Hon. Kantai, J.A.) had occasion to restate that:
‘An order for stay of execution [pending appeal] is ordinarily an interim order which seeks to delay the performance of positive obligations that are set out in a decree as a result of a Judgment. The delay of performance 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. See, for this general proposition, the holding of the Court of Appeal of Uganda in Mugenyi & Co. Advocates v National Insurance Corporation (Civil Appeal No. 13 of 1984) where it was stated:
‘…an order for stay of execution must be intended to serve a purpose …’” (emphasis supplied).
[19] In the premises, it is my finding that the instant application is incompetent; and that no useful purpose would be served by engaging in a merit consideration thereof from the standpoint of Order 42 Rule 6 of the Civil Procedure Rules . Accordingly, the applicant’s Notice of Motion dated 28 th February 2024 is hereby dismissed with costs.
It is so ordered.
DATED, SIGNED AND DELIVERED VIRTUALLY THIS 19 TH DAY OF SEPTEMBER 2025
'
[a] Spent
[b] Spent
[c] That there be stay of execution of the ruling/order delivered on 9 th February 2024 pending the hearing and determination of the appeal
[d] That costs of the application be provided for.
[2] The application was premised on the grounds that the applicant had filed an appeal against the ruling delivered herein on 9 th February 2024; and that it is in the interest of justice that there be stay of execution. The applicant further contended that the respondent will not suffer any prejudice if stay is granted.
[3] The application was supported by the applicant’s own affidavit sworn on 28 th February 2024 in which he deposed that, on the 9 th February 2024 the Deputy Registrar delivered a ruling in respect of the Preliminary Objection dated 8 th August 2023. The applicant averred that he has already filed a Notice of Appeal and that he intends to prosecute the appeal to its logical conclusion.
[4] The applicant contended that the appeal will serve no purpose if the respondent is allowed to proceed with execution as intended. He annexed to his affidavit a copy of the Notice of Appeal as Annexure “OEE 1” and posited that the respondent will not be prejudiced in any way by the issuance of an order of stay of execution.
[5] The application was opposed by the respondent. He filed a Replying Affidavit sworn on 5 th February 2024. He reiterated that on the 9 th February 2024, the Deputy Registrar delivered a ruling on the applicant’s Preliminary Objection dated 8 th August 2023 in opposition to his application for Notice to Show Cause dated 26 th July 2023. According to the respondent, no positive obligations were created or placed upon either party by the said ruling or order of dismissal; and therefore that it is incapable of execution.
[6] The respondent further averred that, since the impugned decision is that of the subordinate court, any appeal therefrom should be to the High Court by way of a Memorandum of Appeal and not in the manner purported. Therefore, according to the respondent, the appeal is not only misconceived but is also incompetent and liable to dismissal and/or striking out in limine .
[7] The respondent also mentioned that the applicant has failed to deposit the decretal sum as a sign of good faith. He averred therefore that the applicant does not merit favourable exercise of the Court’s discretion. He consequently prayed for the dismissal of the application with costs.
[8] The application was urged by way of written submissions. Accordingly, the applicant relied on the written submissions dated 20 th June 2024. He justified the filing of the Notice of Appeal contending that the Preliminary Objection and the ensuing ruling ought to have been handled by a judge and not any other judicial officer; and that since it was handled in a High Court matter by the Deputy Registrar, an appeal therefrom can only be filed before the Court of Appeal.
[9] The applicant then proceeded to make submissions that for an application under Rule 5(2)(b) of the Court of Appeal Rules to succeed the applicant need only prove that:
[a] The appeal or intended appeal is an arguable one; and
[b] That if an order is not granted the appeal would be rendered nugatory.
[10] The applicant relied on Kenya Shell Ltd v Kibiru [1986] KLR 410 and Butt v Rent Restriction Tribunal [1979] eKLR in urging the Court to find that the applicant has made out a good case for stay of execution. He pointed out that he has already filed a Notice of Appeal and contended that the appeal is not frivolous. According to the applicant, the appeal will be rendered nugatory as the respondent will proceed to execute for the decretal sum based on an irregular execution proceeding.
[11] The respondent filed written submissions dated 16 th October 2024. He contended that since the impugned ruling was in the nature of a negative order, namely, a dismissal, it is incapable of being stayed. To underscore his argument, the respondent relied on Jennifer Akinyi Osodo v Boniface Okumu Osodo & others [2021] KECA 465 (KLR) in which the Court of Appeal quoted from Kisii HCCA No. 15 of 2010: Raymond Omboga v Austine Pyan Maranga .
[12] The second limb of the respondent’s submissions was that the intended appeal is incompetent ab initio , on account of being filed before the wrong forum. He relied on Order 49 Rule 5 of the Civil Procedure Rules to buttress his argument that an appeal from or objection to the decision of a deputy registrar ought to be filed before a judge of the High Court. Accordingly, the respondent urged for the dismissal of the application dated 28 th February 2024.
[13] I have given due consideration to the application as well as the submissions made by the parties. I have no hesitation in disregarding the submissions made by the respondent on the viability or competence of the applicant’s appeal. That is an issue that falls within the purview of the Court of Appeal and therefore the applicant’s submissions touching on Rule 5(2)(b) of the Court of Appeal Rules were off-mark in my view. Accordingly, the only issue for determination is whether the applicant has made out a good case for stay of execution from the standpoint of Order 42 Rule 6 of the Civil Procedure Rules.
[14] Order 42 of the Civil Procedure Rules provides:
“(1) 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.
[15] Rule 6 above presupposes that the application for stay be in respect of either a decree or order from which an appeal has been filed. In this case the ruling in respect of the dismissal order made by the Deputy Registrar on 9 th February 2024. There is no dispute that the outcome was a negative order in that the applicant’s Preliminary Objection was dismissed with costs.
[16] It is now trite that a negative order is incapable of execution and therefore not amenable to stay for purposes of Order 42 Rule 6 of the Civil Procedure Rules . Thus, in Raymond M. Omboga v Austine Pyan Maranga , Kisii HCCA No. 15 of 2010, Hon. Makhandia, J. (as he then was) held:
“…The order dismissing the application is in the nature of a negative order and is incapable of execution save, perhaps, for costs and such order is incapable of stay. Where there is no positive order made in favour of the respondent which is capable of execution, there can be no stay of execution of such an order...The applicant seeks to appeal against the order dismissing his application. This is not an order capable of being stayed because there is nothing that the applicant has lost. The refusal simply means that the applicant stays in the situation he was in before coming to court and therefore the issues of substantial loss that he is likely to suffer and or the appeal being rendered nugatory do not arise...”
[17] Whereas in this instance there is a decree pending execution, that is not the decree the subject of appeal. In Raymond M Omboga v Austine Pyan Maranga (supra), it was held:
“The court cannot see how it can order stay of the decree that is not the subject of an appeal. Had the aforesaid order been the subject of this appeal then different considerations would have applied. The court would have looked at it alongside the settled principles aforesaid for granting stay of decree...It is trite law that stay of execution pending appeal can only be granted against the order being appealed against. Put differently, an order for stay of execution pending appeal cannot be granted if the intended appeal is not against the order sought to be stayed; yet this is what obtains in this application where the applicant’s appeal is against the order of dismissal of his application, yet the stay sought is against the subordinate court’s judgement or decree.”
[18] Similarly, in Co-operative Bank of Kenya Ltd v Banking Insurance & Finance Union (Kenya) [2015] eKLR, the Court of Appeal (per Hon. Kantai, J.A.) had occasion to restate that:
‘An order for stay of execution [pending appeal] is ordinarily an interim order which seeks to delay the performance of positive obligations that are set out in a decree as a result of a Judgment. The delay of performance 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. See, for this general proposition, the holding of the Court of Appeal of Uganda in Mugenyi & Co. Advocates v National Insurance Corporation (Civil Appeal No. 13 of 1984) where it was stated:
‘…an order for stay of execution must be intended to serve a purpose …’” (emphasis supplied).
[19] In the premises, it is my finding that the instant application is incompetent; and that no useful purpose would be served by engaging in a merit consideration thereof from the standpoint of Order 42 Rule 6 of the Civil Procedure Rules . Accordingly, the applicant’s Notice of Motion dated 28 th February 2024 is hereby dismissed with costs.
It is so ordered.
DATED, SIGNED AND DELIVERED VIRTUALLY THIS 19 TH DAY OF SEPTEMBER 2025
'