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The Court is called upon to determine the Notice of Motion dated 13 th August 2025 filed by the Appellant/Applicant, Nyamira Luxury Express , brought under Sections 1A, 1B, 3A, 94 and 95 of the Civil Procedure Act and Orders 22 Rule 22, 42 Rules 6 and 21, 45 Rule 1, 49, 50, 51 Rule 1, and 50 Rule 6 of the Civil Procedure Rules, 2010 , and all enabling provisions of the law.
The application seeks, among other reliefs:
A stay of execution of the judgment and/or decree issued on 18 th May 2022 in Nyamira CMCC No. 8 of 2019
A stay of sale of motor vehicle registration number KCR 178A scheduled for 16 th August 2025
Setting aside of the warrants of attachment dated 07 th August 2025
Leave to pay the balance of the decretal sum by monthly instalments pending full payment.
The application is supported by an affidavit sworn on 13 th August 2025 by Lawrence Njuguna , counsel for the Applicant, who depones that the Respondent has unlawfully commenced execution despite the decretal amount having been deposited in a joint interest-earning account as ordered by the court pending appeal.
The Respondent, Florence Achieng Abuoro, opposes the application through a Replying Affidavit sworn on 02 nd October 2025 , terming the motion incompetent, irregular, and an abuse of process.
The Applicant filed written submissions dated 15 th October 2025 , while the Respondent relied on her affidavit evidence.
Background
The judgment giving rise to the present application was delivered in Nyamira CMCC No. 8 of 2019 by Hon. C. Ombija on 18 th January 2022 , in favour of the Respondent. The Applicant lodged Nyamira HCCA No. E031 of 2022 challenging that decision. However, the appeal was dismissed for want of prosecution on 23 rd September 2024.
During the pendency of the appeal, the Applicant deposited Kshs. 806,413.00 i n a joint interest-earning account as security.
Following the dismissal of the appeal, the Respondent caused warrants of attachment dated 29 th July 2025 to issue and proceeded to attach motor vehicle registration number KCR 178A, which was scheduled for auction on 16 th August 2025.
The Applicant contends that the execution was premature , irregular, and unnecessary since the decretal sum was secured. The Respondent insists that execution was regular and justified , and that no appeal is pending to support a prayer for stay.
The Applicant’s case
In his supporting affidavit, Lawrence Njuguna avers that the Respondent’s execution proceedings were illegal and exaggerated, contrary to Order 21 Rule 7 of the Civil Procedure Rules, which requires that a decree conform to the judgment and disclose all material particulars.
It is deponed that the auctioneer acted in breach of Section 2 of the Auctioneers Act and Rule 12 of the Auctioneers Rules by attaching the vehicle before expiry of the seven-day grace period provided after proclamation.
The Applicant further contends that since KES. 806,413.00 had been deposited in a joint interest-earning account as ordered, the Respondent’s execution was malicious and unnecessary, aimed at recovering an exaggerated sum and at circumventing the security already held.
In support, counsel cites Mayenga & 2 Others v Khamis & Another (Environment and Land Appeal E024 of 2024) [2024] KEELC 7407 (KLR) where the Court held that once a decretal sum is deposited as security pending appeal, execution should not issue until the appellate process is concluded and the court orders release of the funds to the successful party.
Further reliance is placed on Centre for Mathematics, Science and Technology Education in Africa (CEMESTEA) v Apex Security Services Ltd [2021] eKLR , where the Court of Appeal observed that once a decretal sum is deposited in a joint account, the judgment debtor ceases to be liable for further interest, as the purpose of security has been fulfilled.
The Applicant therefore prays that the warrants of attachment be set aside , the sale of the vehicle stayed , and leave be granted to settle the balance of KES. 309,928.00 by monthly instalments.
The Respondent’s response
The Respondent in her Replying Affidavit sworn on 02 nd October 2025 deposes that the appeal having been dismissed, there is no pending or intended appeal, and therefore the jurisdiction of this Court to entertain an application for stay under Order 42 Rule 6 is not available.
She avers that after the dismissal of the appeal, and there being no proof that the decretal sum had been deposited as earlier ordered, she lawfully proceeded to execution to recover her judgment debt.
The Respondent adds that it was only after proclamation that the Applicant’s advocates disclosed the existence of a joint account. Respondent insists that the entire decretal amount and interest are due to her as the successful party and that execution was regular , having been effected nine days after proclamation. Respondent therefore urges the Court to dismiss the application with costs.
Issues for determination
From the pleadings and submissions, the following issues arise for determination:
Whether the Court has jurisdiction to entertain the present application;
Whether the execution and attachment of motor vehicle KCR 178A were irregular or unlawful;
Whether the Applicant has satisfied the conditions for stay of execution under Order 42 Rule 6 of the Civil Procedure Rules;
Whether the Applicant should be allowed to pay the balance of the decretal sum by instalments; and
What orders should issue as to costs.
Analysis and Determination
Jurisdiction
The Respondent’s preliminary objection is that there is no pending appeal, since Nyamira HCCA No. E031 of 2022 was dismissed for want of prosecution on 23 rd September 2024.
It is settled law that the power of the High Court to grant stay of execution is anchored in Order 42 Rule 6(1) of the Civil Procedure Rules, which presupposes the existence of a pending or intended appeal.
There being no pending appeal nor any notice of appeal filed, this Court finds that it lacks jurisdiction to entertain the present application for stay. The Court cannot invoke its inherent powers under Section 3A of the Civil Procedure Act to circumvent express procedural provisions.
Whether execution was irregular
The Applicant argues that attachment of the vehicle was premature, while the Respondent asserts that attachment occurred nine (9) days after proclamation.
The chronology of events shows that proclamation was made on 29 th July 2025 and attachment effected on 07 th August 2025, a period exceeding seven days.
The Applicant has not tendered evidence showing otherwise. Accordingly, I find that the execution was regular and compliant with the Auctioneers Rules.
Effect of deposit of the decretal sum
The Applicant relies on the fact that KES. 806,413.00 was deposited in a joint account and argues that execution should therefore not issue.
The Respondent disputes the timing of the deposit but concedes that the funds exist in the account.
The principle governing such deposits was restated in Mayenga & 2 Others v Khamis & Another (supra) , where the Court held that funds deposited as security may be released to the decree-holder once the appeal fails.
Similarly, in CEMESTEA v Apex Security Services Ltd (supra) , the Court of Appeal held that deposit of the decretal sum serves as security but does not extinguish the obligation to pay once the judgment is confirmed.
In this case, the appeal was dismissed, and consequently the decretal sum and accrued interest became payable to the Respondent . The Respondent was therefore within her rights to initiate execution for recovery of the same.
Whether the Applicant is entitled to stay
Under Order 42 Rule 6(2), stay may be granted where an applicant demonstrates:
1) That substantial loss may result unless the order is made
2) That the application has been brought without unreasonable delay
3) That security has been provided.
The Applicant has not demonstrated any substantial loss likely to result. The decretal amount is already held in a joint account, negating any risk of injustice. Moreover, without a pending appeal, the prayer for stay serves no practical purpose.
Whether the Applicant is entitled to payment by instalments
Order 21 Rule 12(1) vests discretion in the Court to allow such payment for sufficient cause. The principles governing that discretion were laid down in Keshvaji Jethabhai & Bros Limited v Saleh Abdulla [1959] EA 260 , where the Court held that in considering whether to grant instalment payment, the court must evaluate: The circumstances under which the debt was contracted
The conduct of the debtor
The debtor’s financial position
The bona fides of the debtor in offering to pay a fair proportion of the debt
Applying those principles to the present case, the Applicant has not placed before this Court any evidence of its financial position to demonstrate inability to pay the decretal sum at once. It has also failed to propose the amount and frequency of the instalments it intends to pay. There is similarly no material showing bona fides or good faith on the part of the Applicant in making the offer to settle by instalments.
Further, the Applicant’s conduct does not commend itself to the Court’s discretion. The Respondent’s decree has remained unsatisfied since the appeal was dismissed in September 2024, and no explanation has been offered for that delay. The request for payment by instalments therefore appears to be an afterthought aimed at further delaying satisfaction of the decree rather than a genuine proposal for settlement.
Guided by the reasoning in Keshvaji Jethabhai & Bros Limited v Saleh Abdulla (supra) , I find that the Applicant has not satisfied any of the guiding considerations warranting the exercise of the Court’s discretion in its favour. The prayer for payment by instalments therefore fails.
Costs
Costs follow the event under Section 27 of the Civil Procedure Act . The Respondent, having successfully opposed the application, is entitled to costs.
Conclusion and Orders
In view of the foregoing analysis, the Court makes the following orders: The prayer for stay of execution and stay of sale of motor vehicle KCR 178A is declined
The warrants of attachment dated 07 th August 2025 are confirmed as regular and lawful
The prayer for payment by instalments is dismissed
Costs of this application shall be borne by the Applicant.
This being a miscellaneous file, it is hereby closed
Appearances
Court Assistant - Hilda
For Appellant - Mr. Njuguna for Kairu & Mc Court Advocates
For Respondent - Mr. Orayo for Khan & Associates Advocates
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The Court is called upon to determine the Notice of Motion dated 13 th August 2025 filed by the Appellant/Applicant, Nyamira Luxury Express , brought under Sections 1A, 1B, 3A, 94 and 95 of the Civil Procedure Act and Orders 22 Rule 22, 42 Rules 6 and 21, 45 Rule 1, 49, 50, 51 Rule 1, and 50 Rule 6 of the Civil Procedure Rules, 2010 , and all enabling provisions of the law.
The application seeks, among other reliefs:
A stay of execution of the judgment and/or decree issued on 18 th May 2022 in Nyamira CMCC No. 8 of 2019
A stay of sale of motor vehicle registration number KCR 178A scheduled for 16 th August 2025
Setting aside of the warrants of attachment dated 07 th August 2025
Leave to pay the balance of the decretal sum by monthly instalments pending full payment.
The application is supported by an affidavit sworn on 13 th August 2025 by Lawrence Njuguna , counsel for the Applicant, who depones that the Respondent has unlawfully commenced execution despite the decretal amount having been deposited in a joint interest-earning account as ordered by the court pending appeal.
The Respondent, Florence Achieng Abuoro, opposes the application through a Replying Affidavit sworn on 02 nd October 2025 , terming the motion incompetent, irregular, and an abuse of process.
The Applicant filed written submissions dated 15 th October 2025 , while the Respondent relied on her affidavit evidence.
Background
The judgment giving rise to the present application was delivered in Nyamira CMCC No. 8 of 2019 by Hon. C. Ombija on 18 th January 2022 , in favour of the Respondent. The Applicant lodged Nyamira HCCA No. E031 of 2022 challenging that decision. However, the appeal was dismissed for want of prosecution on 23 rd September 2024.
During the pendency of the appeal, the Applicant deposited Kshs. 806,413.00 i n a joint interest-earning account as security.
Following the dismissal of the appeal, the Respondent caused warrants of attachment dated 29 th July 2025 to issue and proceeded to attach motor vehicle registration number KCR 178A, which was scheduled for auction on 16 th August 2025.
The Applicant contends that the execution was premature , irregular, and unnecessary since the decretal sum was secured. The Respondent insists that execution was regular and justified , and that no appeal is pending to support a prayer for stay.
The Applicant’s case
In his supporting affidavit, Lawrence Njuguna avers that the Respondent’s execution proceedings were illegal and exaggerated, contrary to Order 21 Rule 7 of the Civil Procedure Rules, which requires that a decree conform to the judgment and disclose all material particulars.
It is deponed that the auctioneer acted in breach of Section 2 of the Auctioneers Act and Rule 12 of the Auctioneers Rules by attaching the vehicle before expiry of the seven-day grace period provided after proclamation.
The Applicant further contends that since KES. 806,413.00 had been deposited in a joint interest-earning account as ordered, the Respondent’s execution was malicious and unnecessary, aimed at recovering an exaggerated sum and at circumventing the security already held.
In support, counsel cites Mayenga & 2 Others v Khamis & Another (Environment and Land Appeal E024 of 2024) [2024] KEELC 7407 (KLR) where the Court held that once a decretal sum is deposited as security pending appeal, execution should not issue until the appellate process is concluded and the court orders release of the funds to the successful party.
Further reliance is placed on Centre for Mathematics, Science and Technology Education in Africa (CEMESTEA) v Apex Security Services Ltd [2021] eKLR , where the Court of Appeal observed that once a decretal sum is deposited in a joint account, the judgment debtor ceases to be liable for further interest, as the purpose of security has been fulfilled.
The Applicant therefore prays that the warrants of attachment be set aside , the sale of the vehicle stayed , and leave be granted to settle the balance of KES. 309,928.00 by monthly instalments.
The Respondent’s response
The Respondent in her Replying Affidavit sworn on 02 nd October 2025 deposes that the appeal having been dismissed, there is no pending or intended appeal, and therefore the jurisdiction of this Court to entertain an application for stay under Order 42 Rule 6 is not available.
She avers that after the dismissal of the appeal, and there being no proof that the decretal sum had been deposited as earlier ordered, she lawfully proceeded to execution to recover her judgment debt.
The Respondent adds that it was only after proclamation that the Applicant’s advocates disclosed the existence of a joint account. Respondent insists that the entire decretal amount and interest are due to her as the successful party and that execution was regular , having been effected nine days after proclamation. Respondent therefore urges the Court to dismiss the application with costs.
Issues for determination
From the pleadings and submissions, the following issues arise for determination:
Whether the Court has jurisdiction to entertain the present application;
Whether the execution and attachment of motor vehicle KCR 178A were irregular or unlawful;
Whether the Applicant has satisfied the conditions for stay of execution under Order 42 Rule 6 of the Civil Procedure Rules;
Whether the Applicant should be allowed to pay the balance of the decretal sum by instalments; and
What orders should issue as to costs.
Analysis and Determination
Jurisdiction
The Respondent’s preliminary objection is that there is no pending appeal, since Nyamira HCCA No. E031 of 2022 was dismissed for want of prosecution on 23 rd September 2024.
It is settled law that the power of the High Court to grant stay of execution is anchored in Order 42 Rule 6(1) of the Civil Procedure Rules, which presupposes the existence of a pending or intended appeal.
There being no pending appeal nor any notice of appeal filed, this Court finds that it lacks jurisdiction to entertain the present application for stay. The Court cannot invoke its inherent powers under Section 3A of the Civil Procedure Act to circumvent express procedural provisions.
Whether execution was irregular
The Applicant argues that attachment of the vehicle was premature, while the Respondent asserts that attachment occurred nine (9) days after proclamation.
The chronology of events shows that proclamation was made on 29 th July 2025 and attachment effected on 07 th August 2025, a period exceeding seven days.
The Applicant has not tendered evidence showing otherwise. Accordingly, I find that the execution was regular and compliant with the Auctioneers Rules.
Effect of deposit of the decretal sum
The Applicant relies on the fact that KES. 806,413.00 was deposited in a joint account and argues that execution should therefore not issue.
The Respondent disputes the timing of the deposit but concedes that the funds exist in the account.
The principle governing such deposits was restated in Mayenga & 2 Others v Khamis & Another (supra) , where the Court held that funds deposited as security may be released to the decree-holder once the appeal fails.
Similarly, in CEMESTEA v Apex Security Services Ltd (supra) , the Court of Appeal held that deposit of the decretal sum serves as security but does not extinguish the obligation to pay once the judgment is confirmed.
In this case, the appeal was dismissed, and consequently the decretal sum and accrued interest became payable to the Respondent . The Respondent was therefore within her rights to initiate execution for recovery of the same.
Whether the Applicant is entitled to stay
Under Order 42 Rule 6(2), stay may be granted where an applicant demonstrates:
1) That substantial loss may result unless the order is made
2) That the application has been brought without unreasonable delay
3) That security has been provided.
The Applicant has not demonstrated any substantial loss likely to result. The decretal amount is already held in a joint account, negating any risk of injustice. Moreover, without a pending appeal, the prayer for stay serves no practical purpose.
Whether the Applicant is entitled to payment by instalments
Order 21 Rule 12(1) vests discretion in the Court to allow such payment for sufficient cause. The principles governing that discretion were laid down in Keshvaji Jethabhai & Bros Limited v Saleh Abdulla [1959] EA 260 , where the Court held that in considering whether to grant instalment payment, the court must evaluate: The circumstances under which the debt was contracted
The conduct of the debtor
The debtor’s financial position
The bona fides of the debtor in offering to pay a fair proportion of the debt
Applying those principles to the present case, the Applicant has not placed before this Court any evidence of its financial position to demonstrate inability to pay the decretal sum at once. It has also failed to propose the amount and frequency of the instalments it intends to pay. There is similarly no material showing bona fides or good faith on the part of the Applicant in making the offer to settle by instalments.
Further, the Applicant’s conduct does not commend itself to the Court’s discretion. The Respondent’s decree has remained unsatisfied since the appeal was dismissed in September 2024, and no explanation has been offered for that delay. The request for payment by instalments therefore appears to be an afterthought aimed at further delaying satisfaction of the decree rather than a genuine proposal for settlement.
Guided by the reasoning in Keshvaji Jethabhai & Bros Limited v Saleh Abdulla (supra) , I find that the Applicant has not satisfied any of the guiding considerations warranting the exercise of the Court’s discretion in its favour. The prayer for payment by instalments therefore fails.
Costs
Costs follow the event under Section 27 of the Civil Procedure Act . The Respondent, having successfully opposed the application, is entitled to costs.
Conclusion and Orders
In view of the foregoing analysis, the Court makes the following orders: The prayer for stay of execution and stay of sale of motor vehicle KCR 178A is declined
The warrants of attachment dated 07 th August 2025 are confirmed as regular and lawful
The prayer for payment by instalments is dismissed
Costs of this application shall be borne by the Applicant.
This being a miscellaneous file, it is hereby closed
Appearances
Court Assistant - Hilda
For Appellant - Mr. Njuguna for Kairu & Mc Court Advocates
For Respondent - Mr. Orayo for Khan & Associates Advocates
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