1. The application dated 12th November 2025 is for the following orders:
A. Spent.
B. That pending the hearing and determination of this application inter-partes the honourable court stay the execution of the ruling delivered on 23rd October 2025 in Mombasa E577 of 2024: Munyoki Syombua vs Mogo Auto Ltd. & Duncan Mutua Wambua and all orders and the proceedings therein.
C. That pending the hearing and determination of this application the honourable court stay the execution of the ruling delivered on 23rd October 2025 in Mombasa E577 of 2024: Munyoki Syombua vs Mogo Auto Ltd. & Duncan Mutua Wambua and all orders and the proceedings therein.
D. That pending the hearing and determination of this Appeal the honourable court stay the execution of the ruling delivered on 23rd October 2025 in Mombasa E577 of 2024: Munyoki Syombua vs Mogo Auto Ltd. & Duncan Mutua Wambua and all orders and the proceedings therein.
E. That the interlocutory judgment against the appellant in E577 of 2024 be set aside and the appellant be granted leave to defend the present suit conditionally or unconditionally and the hearing of the matter to commence de novo.
F. That the costs of this application be borne by the plaintiff.
2. The appellant supported the application by an affidavit dated 12th November 2025 sworn by David Irungu Kimani, the appellant’s legal officer. The affidavit explains the contractual and factual matrix, the appellant’s registration as co-owner to protect a loan facility for Kshs. 400,000 for motor vehicle KBM 429W, the accident of 30th October 2023, the appellant’s engagement of its insurer (Occidental Insurance Co. Ltd.) and counsel, and the appellant’s contention that it was unaware the trial court had proceeded ex parte, thereby risking breach of its right to a fair hearing.
3. The 1st respondent filed a replying affidavit on 9th December 2025 opposing the application on grounds that pleadings had been served, default judgment/ interlocutory judgment had been entered, the appellant delayed, and that the appellant had not met the threshold for a stay or come to court with clean hands.
4. The parties filed written submissions on 1st December 2025 (appellant) and 9th December 2025 (respondent). The issues for determination are:
a) Whether the appellant can be granted a stay of execution of the ruling dated 23rd October 2025 in Mombasa E577 of 2024; and
b) Whether stay of proceedings can be granted in the trial suit.
FINDINGS AND CONCLUSION
5. The court has considered the record, the affidavits, and the parties’ submissions. The governing provision for stay of execution pending appeal is Order 42, rule 6 of the Civil Procedure Rules. The court must be satisfied that:
a) Substantial loss may result to the applicant unless the order is made and the application was made without unreasonable delay; and
b) Appropriate security is given for due performance of any decree or order that may ultimately be binding.
6. On the facts:
a) The application was filed promptly after the impugned ruling and does not constitute unreasonable delay.
b) The appellant has demonstrated a serious arguable defence and real risk of substantial loss if judgment is executed before the matter is finally determined. The appellant was registered as co-owner to protect a financial interest, engaged its insurer and counsel, and asserts it was not in control of the vehicle and that the driver was not its agent or employee at the material time. These facts raise triable issues which, if established, could avert or reduce liability.
c) Although the ruling of 23rd October 2025 was framed as refusing certain prayers, in the circumstances, execution of any consequential orders or the enforcement of any resulting monetary relief would occasion the appellant substantive and irreparable prejudice pending resolution of its appeal and any application to set aside interlocutory judgment. I have in particular noted that the Applicant was a financier and had made provisions for insurance and therefore locking them out on technicalities may result in injustice and contravention of section 1A OF THE CIVIL PROCEDURE RULES AND ARTICLE 159 (2) (d) of the Constitution.
7. In the exercise of this court’s discretion and applying the principles in Order 42 r.6, fairness, and the need to prevent irreparable prejudice pending final determination, the court makes the following orders:
ORDERS
8. The application dated 12th November 2025 is GRANTED in part as follows:
a) Pending the hearing and determination of this application and the appeal, the execution of the ruling dated 23rd October 2025 in Mombasa E577 of 2024, along with any consequential orders or proceedings arising therefrom, is hereby STAYED. This order is supported by the principles established in Kenya Commercial Bank Ltd v. Tana & Athi Rivers Development Authority [2015] eKLR, which underscores the necessity of a stay in the interest of justice.
b) The deputy registrar is directed to avail the handwritten proceedings and /or upload them onto the Court's Case Management System (CTS) within the next 14 days so as to fast track the appeal.
c) The costs of this application shall be in the appeal.
It is so ordered.
Dated, signed, and delivered in Open Court/Online through MS TEAMS, this 25th day of February 2026.
HON. LADY JUSTICE W. K. MICHENI
JUDGE
A. Spent.
B. That pending the hearing and determination of this application inter-partes the honourable court stay the execution of the ruling delivered on 23rd October 2025 in Mombasa E577 of 2024: Munyoki Syombua vs Mogo Auto Ltd. & Duncan Mutua Wambua and all orders and the proceedings therein.
C. That pending the hearing and determination of this application the honourable court stay the execution of the ruling delivered on 23rd October 2025 in Mombasa E577 of 2024: Munyoki Syombua vs Mogo Auto Ltd. & Duncan Mutua Wambua and all orders and the proceedings therein.
D. That pending the hearing and determination of this Appeal the honourable court stay the execution of the ruling delivered on 23rd October 2025 in Mombasa E577 of 2024: Munyoki Syombua vs Mogo Auto Ltd. & Duncan Mutua Wambua and all orders and the proceedings therein.
E. That the interlocutory judgment against the appellant in E577 of 2024 be set aside and the appellant be granted leave to defend the present suit conditionally or unconditionally and the hearing of the matter to commence de novo.
F. That the costs of this application be borne by the plaintiff.
2. The appellant supported the application by an affidavit dated 12th November 2025 sworn by David Irungu Kimani, the appellant’s legal officer. The affidavit explains the contractual and factual matrix, the appellant’s registration as co-owner to protect a loan facility for Kshs. 400,000 for motor vehicle KBM 429W, the accident of 30th October 2023, the appellant’s engagement of its insurer (Occidental Insurance Co. Ltd.) and counsel, and the appellant’s contention that it was unaware the trial court had proceeded ex parte, thereby risking breach of its right to a fair hearing.
3. The 1st respondent filed a replying affidavit on 9th December 2025 opposing the application on grounds that pleadings had been served, default judgment/ interlocutory judgment had been entered, the appellant delayed, and that the appellant had not met the threshold for a stay or come to court with clean hands.
4. The parties filed written submissions on 1st December 2025 (appellant) and 9th December 2025 (respondent). The issues for determination are:
a) Whether the appellant can be granted a stay of execution of the ruling dated 23rd October 2025 in Mombasa E577 of 2024; and
b) Whether stay of proceedings can be granted in the trial suit.
FINDINGS AND CONCLUSION
5. The court has considered the record, the affidavits, and the parties’ submissions. The governing provision for stay of execution pending appeal is Order 42, rule 6 of the Civil Procedure Rules. The court must be satisfied that:
a) Substantial loss may result to the applicant unless the order is made and the application was made without unreasonable delay; and
b) Appropriate security is given for due performance of any decree or order that may ultimately be binding.
6. On the facts:
a) The application was filed promptly after the impugned ruling and does not constitute unreasonable delay.
b) The appellant has demonstrated a serious arguable defence and real risk of substantial loss if judgment is executed before the matter is finally determined. The appellant was registered as co-owner to protect a financial interest, engaged its insurer and counsel, and asserts it was not in control of the vehicle and that the driver was not its agent or employee at the material time. These facts raise triable issues which, if established, could avert or reduce liability.
c) Although the ruling of 23rd October 2025 was framed as refusing certain prayers, in the circumstances, execution of any consequential orders or the enforcement of any resulting monetary relief would occasion the appellant substantive and irreparable prejudice pending resolution of its appeal and any application to set aside interlocutory judgment. I have in particular noted that the Applicant was a financier and had made provisions for insurance and therefore locking them out on technicalities may result in injustice and contravention of section 1A OF THE CIVIL PROCEDURE RULES AND ARTICLE 159 (2) (d) of the Constitution.
7. In the exercise of this court’s discretion and applying the principles in Order 42 r.6, fairness, and the need to prevent irreparable prejudice pending final determination, the court makes the following orders:
ORDERS
8. The application dated 12th November 2025 is GRANTED in part as follows:
a) Pending the hearing and determination of this application and the appeal, the execution of the ruling dated 23rd October 2025 in Mombasa E577 of 2024, along with any consequential orders or proceedings arising therefrom, is hereby STAYED. This order is supported by the principles established in Kenya Commercial Bank Ltd v. Tana & Athi Rivers Development Authority [2015] eKLR, which underscores the necessity of a stay in the interest of justice.
b) The deputy registrar is directed to avail the handwritten proceedings and /or upload them onto the Court's Case Management System (CTS) within the next 14 days so as to fast track the appeal.
c) The costs of this application shall be in the appeal.
It is so ordered.
Dated, signed, and delivered in Open Court/Online through MS TEAMS, this 25th day of February 2026.
HON. LADY JUSTICE W. K. MICHENI
JUDGE