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1. Introduction
The Appellant/Applicant filed a Notice of Motion dated 15th October 2025 under Sections 3A and 63(e) of the Civil Procedure Act and Order 42 Rule 6 and Order 51 Rule 1 of the Civil Procedure Rules seeking, principally, a stay of execution of the Judgment and Decree issued on 16th September 2025 in Mombasa SCCCOMM No. E833 of 2025, pending the determination of this application and of the appeal.
The Application is supported by the Affidavit of David Irungu Kimani sworn on the same date.
The Respondent filed a comprehensive response stating that he had fully paid for the motorcycle and indeed overpaid and that this is why the trial court ordered both the return of the motorcycle and a refund of Kshs. 75,595 . He should be allowed to enjoy the fruits of the judgment.
2. Background
In the impugned Judgment, the trial court directed the Applicant to:
a. Refund the Respondent Kshs. 75,595 being excess repayment; and
b. Release motorcycle registration number KMGA 932K to the Respondent.
The Applicant contends, inter alia, that: the arrangement between the parties was a loan agreement and not a hire-purchase transaction;
the trial court in effect rewrote the contract between the parties;
the subject motorcycle had been sold before the suit was filed, rendering the release order incapable of implementation;
execution commenced without notice, culminating in a Proclamation dated 13th October 2025 by Murphy Auctioneers; and
the Respondent has no known assets, posing a risk of non-refund should the appeal succeed.
The Applicant expresses willingness to furnish security by way of a bank guarantee for the entire decretal sum.
3. Issue for Determination
The single issue for determination is:
Whether the Applicant has met the threshold for grant of stay of execution under Order 42 Rule 6 of the Civil Procedure Rules.
4. The Law
Order 42 Rule 6(2) provides that an order of stay may only be granted where:
a. substantial loss may result unless the order is made;
b. the application is made without unreasonable delay; and
c. security is provided for the due performance of the decree.
The principles in Butt v Rent Restriction Tribunal (1979) further emphasise that the court must ensure that an appeal is not rendered nugatory, while balancing the rights of the successful litigant.
5. Analysis
The Application was filed timeously, and the requirement of promptness is satisfied.
On substantial loss, the Court notes that athe appellant has raised a technical issue on the interpretation of the contact and the respondent says he has fully complied.
I am is persuaded that this is an appropriate case for intervention to preserve the rights of both parties while ensuring that the pending appeal is not rendered academic. The motorcycle was the Respondent’s source of livelihood, and the Applicant acknowledges that significant payments had been made toward its acquisition.
The Court is grateful to Kituo Cha Sheria for offering legal assistance to the Respondent in this matter.
Further the Court is is of the opinion that the remaining issues being namely the refund balance and costs are capable of amicable settlement. Counsel for both parties are encouraged to engage with both parties constructively toward a consensual resolution.
6. Orders
Accordingly, the Court makes the following integrated orders:
The Applicant shall release to the Respondent an alternative motorcycle of similar engine capacity, value, and in good working condition in place of the impounded motorcycle that is the subject of this appeal.
This shall be done within twenty (20) days from the date of this ruling.
No bank guarantee shall be required as a condition for the release of the alternative motorcycle or for the balance of the decretal sum.
The parties are hereby directed to jointly negotiate and agree on the remaining issues, namely the refund balance and costs within the next forty five (45) days from the date of this ruling.
Mention on 29th January 2026 at 8.30 AM to confirm compliance and/ or to give further directions.
Costs of the application shall be in the appeal.
Dated and delivered this 4 th day of December 2025
W ENDY KAGENDO
JUDGE
IN THE PRESENCE OF
MS FOR THE APPLICANT MAING I
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1. Introduction
The Appellant/Applicant filed a Notice of Motion dated 15th October 2025 under Sections 3A and 63(e) of the Civil Procedure Act and Order 42 Rule 6 and Order 51 Rule 1 of the Civil Procedure Rules seeking, principally, a stay of execution of the Judgment and Decree issued on 16th September 2025 in Mombasa SCCCOMM No. E833 of 2025, pending the determination of this application and of the appeal.
The Application is supported by the Affidavit of David Irungu Kimani sworn on the same date.
The Respondent filed a comprehensive response stating that he had fully paid for the motorcycle and indeed overpaid and that this is why the trial court ordered both the return of the motorcycle and a refund of Kshs. 75,595 . He should be allowed to enjoy the fruits of the judgment.
2. Background
In the impugned Judgment, the trial court directed the Applicant to:
a. Refund the Respondent Kshs. 75,595 being excess repayment; and
b. Release motorcycle registration number KMGA 932K to the Respondent.
The Applicant contends, inter alia, that: the arrangement between the parties was a loan agreement and not a hire-purchase transaction;
the trial court in effect rewrote the contract between the parties;
the subject motorcycle had been sold before the suit was filed, rendering the release order incapable of implementation;
execution commenced without notice, culminating in a Proclamation dated 13th October 2025 by Murphy Auctioneers; and
the Respondent has no known assets, posing a risk of non-refund should the appeal succeed.
The Applicant expresses willingness to furnish security by way of a bank guarantee for the entire decretal sum.
3. Issue for Determination
The single issue for determination is:
Whether the Applicant has met the threshold for grant of stay of execution under Order 42 Rule 6 of the Civil Procedure Rules.
4. The Law
Order 42 Rule 6(2) provides that an order of stay may only be granted where:
a. substantial loss may result unless the order is made;
b. the application is made without unreasonable delay; and
c. security is provided for the due performance of the decree.
The principles in Butt v Rent Restriction Tribunal (1979) further emphasise that the court must ensure that an appeal is not rendered nugatory, while balancing the rights of the successful litigant.
5. Analysis
The Application was filed timeously, and the requirement of promptness is satisfied.
On substantial loss, the Court notes that athe appellant has raised a technical issue on the interpretation of the contact and the respondent says he has fully complied.
I am is persuaded that this is an appropriate case for intervention to preserve the rights of both parties while ensuring that the pending appeal is not rendered academic. The motorcycle was the Respondent’s source of livelihood, and the Applicant acknowledges that significant payments had been made toward its acquisition.
The Court is grateful to Kituo Cha Sheria for offering legal assistance to the Respondent in this matter.
Further the Court is is of the opinion that the remaining issues being namely the refund balance and costs are capable of amicable settlement. Counsel for both parties are encouraged to engage with both parties constructively toward a consensual resolution.
6. Orders
Accordingly, the Court makes the following integrated orders:
The Applicant shall release to the Respondent an alternative motorcycle of similar engine capacity, value, and in good working condition in place of the impounded motorcycle that is the subject of this appeal.
This shall be done within twenty (20) days from the date of this ruling.
No bank guarantee shall be required as a condition for the release of the alternative motorcycle or for the balance of the decretal sum.
The parties are hereby directed to jointly negotiate and agree on the remaining issues, namely the refund balance and costs within the next forty five (45) days from the date of this ruling.
Mention on 29th January 2026 at 8.30 AM to confirm compliance and/ or to give further directions.
Costs of the application shall be in the appeal.
Dated and delivered this 4 th day of December 2025
W ENDY KAGENDO
JUDGE
IN THE PRESENCE OF
MS FOR THE APPLICANT MAING I
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