What is before me is the Notice of Motion dated 10th April 2025. It is brought under “order 42 rule 6,32,22, rule 22, 51 rule 1 of the Civil Procedure rules 2010 , 1A, 1 B and 3 A of the civil procedure act”.
The applicant seeks orders of stay of execution of the ruling and orders of the trial court delivered on 10th March 2025 and all consequential orders emanating there from pending the full hearing and determination of the intended appeal.
The grounds for the application are set on the face of the application and in the supporting affidavit sworn by Pauline Mwikali Kilonzo.
That she was the plaintiff in Makindu MCCOMMSU number E 007 of 2024 which forms the subject matter of the appeal. That on the 10th of March 2025 the court rendered a ruling against her stating that she should return to the respondent certain items listed as; Gas Cylinder, 3 plastic chairs, two plastic containers full of utensils, 2 bags, tractor registration number KHL 306 trailer and boozer, tractor plough.
That these items were collected after the court had given orders allowing her to pick her personal items from the respondent and that the OCS Makindu to assist in enforcing their order. Being a matrimonial cause she would suffer irreparable loss and damage if the items are returned to the respondent, considering that the matter has not been heard and determined fully.
That dissatisfied by the ruling she brought an appeal as evidenced by the memorandum of appeal she has filed.
The application is opposed through the replying Affidavit of Samuel Kilonzo Mutunga where he states that he was ordered by the court to hand over the applicant’s personal effects in his custody or possession. He has annexed the order dated 22nd August 2024. That on the 9th of September, 2024 the trial court issued further orders to the effect that if any personal effects were contested, the issue of concerning the said items to be held in abeyance for further directions of the court. That on the 19th September 2024 the applicant and an advocate from the from the firm representing her and 9 police officers stormed his home and seized some of his belongings purporting to be executing the orders issued on 22nd August and 9th September 2024. He annexes the police inventory dated 20 September 2024.
That the trial court summoned the officer commanding station to avail the inventory and order allegedly issued for enforcement. The Officer commanding station Makindu produced the inventory of the items collected and detained at Makindu police station.. A tractor registration number KHL, 363 Massey Ferguson, a trailer, a bowser, 1 plowing Jembe, 1 battery, one Jack, 3 metals and one plastic container.
What is agreed to proceed by way of written submissions, but as at the time of writing this ruling, the applicant had not filed any submissions.
Mr. Onyancha for the respondents gave a brief background of the matter. He sent out the following issues for determination,
Whether the applicant appellant has met the threshold for grant of stay of execution
Whether the application is brought in good faith and with clean hands.
Whether the court’s intervention is warranted in light of the foregoing facts and applicable legal principles.
Relying on order 42 rule 6(2) of the Civil procedure rules counsel submits that the applicant must demonstrate that substantial loss may result, unless stay is granted, that the application has been made without reasonable delay and security for due performance of the decree has been provided.
It is submitted that the applicant took advantage of the initial order and took from the respondent’s home items which exceeded the definition of personal effects. It is submitted that the items held at Makindu police station are matrimonial property and not personal effects. That the trial court’s ruling merely corrected the initial order and granting a stay would reward her blatant disregard for court orders and undermine the judicial process. It is further submitted that the applicant has not proposed any security for the respondent’s potential losses contrary to order 42 rule 62 of the civil procedure rules.
Counsel further submitted that the applicant has not come with clean hands because she misled and manipulated the police and enforcement process to seize items which clearly are not personal effects within the contemplation of the orders issued by the trial court.
On what constitutes personal effects counsel relies on S.N.T v R.W.K [2014] KEHC 7576 (KLR) where the court stated;
The respondent had moved the court by the application dated 21st April 2010 asking to be allowed to access the matrimonial homes for the purpose of collecting her personal effects and belongings. The order was granted and certain items of property were collected by the respondent from the Mamlaka home. This prompted the appellant to move the court in the application dated 27th May 2010 complaining that some of the items collected were not personal but family property. I have seen the list of the items allegedly removed from the Mamlaka home. Most of the items in that list do not qualify to be personal effects or belongings. Personal effects and belongings refer to personal items such as clothing, ornaments, cosmetics, perfumes, shoes and like items. It does not refer to furniture, kitchenware, carpets, carvings, weighing machines, beds and curtains. An order to collect personal items is not authority to remove what is clearly family property.
The issue for determination is whether the application has any merit.
Th ruling of the trial court was made on 10th March 2025. The Application for stay is dated 11th March 2025. Hence it was brought in good time.
The applicant has not demonstrated what substantial loss she will suffer when it is her who failed to comply with the law ful orders of the court. She approached the court for orders to collect her personal effects. She was given the order. However, she acted beyond the confines of the order. It is my considered view that the definition of personal effects given in SNT above sets the proper definition: clothing, ornaments, cosmetics, perfumes, shoes etc. A tractor and its accessories cannot fall into the category of personal effects. The applicant in her application is clear that she was to collect personal effects from the Respondent’s home. The items listed in the inventory provided by the OCS Makindu are not personal effects and should not have been removed on the order of the learned trial magistrate.
In addition, the applicant having moved the court under order 42 rule 6 , she ought to have proposed security for the performance of the decree should the appeal fail. That has not been done.
In the circumstances, I find that the application for stay of execution fails and is dismissed with costs to the respondent.
Dated signed and delivered via CTS on 15th August 2025
Mumbua T Matheka
Judge
CA Chrispol
The applicant seeks orders of stay of execution of the ruling and orders of the trial court delivered on 10th March 2025 and all consequential orders emanating there from pending the full hearing and determination of the intended appeal.
The grounds for the application are set on the face of the application and in the supporting affidavit sworn by Pauline Mwikali Kilonzo.
That she was the plaintiff in Makindu MCCOMMSU number E 007 of 2024 which forms the subject matter of the appeal. That on the 10th of March 2025 the court rendered a ruling against her stating that she should return to the respondent certain items listed as; Gas Cylinder, 3 plastic chairs, two plastic containers full of utensils, 2 bags, tractor registration number KHL 306 trailer and boozer, tractor plough.
That these items were collected after the court had given orders allowing her to pick her personal items from the respondent and that the OCS Makindu to assist in enforcing their order. Being a matrimonial cause she would suffer irreparable loss and damage if the items are returned to the respondent, considering that the matter has not been heard and determined fully.
That dissatisfied by the ruling she brought an appeal as evidenced by the memorandum of appeal she has filed.
The application is opposed through the replying Affidavit of Samuel Kilonzo Mutunga where he states that he was ordered by the court to hand over the applicant’s personal effects in his custody or possession. He has annexed the order dated 22nd August 2024. That on the 9th of September, 2024 the trial court issued further orders to the effect that if any personal effects were contested, the issue of concerning the said items to be held in abeyance for further directions of the court. That on the 19th September 2024 the applicant and an advocate from the from the firm representing her and 9 police officers stormed his home and seized some of his belongings purporting to be executing the orders issued on 22nd August and 9th September 2024. He annexes the police inventory dated 20 September 2024.
That the trial court summoned the officer commanding station to avail the inventory and order allegedly issued for enforcement. The Officer commanding station Makindu produced the inventory of the items collected and detained at Makindu police station.. A tractor registration number KHL, 363 Massey Ferguson, a trailer, a bowser, 1 plowing Jembe, 1 battery, one Jack, 3 metals and one plastic container.
What is agreed to proceed by way of written submissions, but as at the time of writing this ruling, the applicant had not filed any submissions.
Mr. Onyancha for the respondents gave a brief background of the matter. He sent out the following issues for determination,
Whether the applicant appellant has met the threshold for grant of stay of execution
Whether the application is brought in good faith and with clean hands.
Whether the court’s intervention is warranted in light of the foregoing facts and applicable legal principles.
Relying on order 42 rule 6(2) of the Civil procedure rules counsel submits that the applicant must demonstrate that substantial loss may result, unless stay is granted, that the application has been made without reasonable delay and security for due performance of the decree has been provided.
It is submitted that the applicant took advantage of the initial order and took from the respondent’s home items which exceeded the definition of personal effects. It is submitted that the items held at Makindu police station are matrimonial property and not personal effects. That the trial court’s ruling merely corrected the initial order and granting a stay would reward her blatant disregard for court orders and undermine the judicial process. It is further submitted that the applicant has not proposed any security for the respondent’s potential losses contrary to order 42 rule 62 of the civil procedure rules.
Counsel further submitted that the applicant has not come with clean hands because she misled and manipulated the police and enforcement process to seize items which clearly are not personal effects within the contemplation of the orders issued by the trial court.
On what constitutes personal effects counsel relies on S.N.T v R.W.K [2014] KEHC 7576 (KLR) where the court stated;
The respondent had moved the court by the application dated 21st April 2010 asking to be allowed to access the matrimonial homes for the purpose of collecting her personal effects and belongings. The order was granted and certain items of property were collected by the respondent from the Mamlaka home. This prompted the appellant to move the court in the application dated 27th May 2010 complaining that some of the items collected were not personal but family property. I have seen the list of the items allegedly removed from the Mamlaka home. Most of the items in that list do not qualify to be personal effects or belongings. Personal effects and belongings refer to personal items such as clothing, ornaments, cosmetics, perfumes, shoes and like items. It does not refer to furniture, kitchenware, carpets, carvings, weighing machines, beds and curtains. An order to collect personal items is not authority to remove what is clearly family property.
The issue for determination is whether the application has any merit.
Th ruling of the trial court was made on 10th March 2025. The Application for stay is dated 11th March 2025. Hence it was brought in good time.
The applicant has not demonstrated what substantial loss she will suffer when it is her who failed to comply with the law ful orders of the court. She approached the court for orders to collect her personal effects. She was given the order. However, she acted beyond the confines of the order. It is my considered view that the definition of personal effects given in SNT above sets the proper definition: clothing, ornaments, cosmetics, perfumes, shoes etc. A tractor and its accessories cannot fall into the category of personal effects. The applicant in her application is clear that she was to collect personal effects from the Respondent’s home. The items listed in the inventory provided by the OCS Makindu are not personal effects and should not have been removed on the order of the learned trial magistrate.
In addition, the applicant having moved the court under order 42 rule 6 , she ought to have proposed security for the performance of the decree should the appeal fail. That has not been done.
In the circumstances, I find that the application for stay of execution fails and is dismissed with costs to the respondent.
Dated signed and delivered via CTS on 15th August 2025
Mumbua T Matheka
Judge
CA Chrispol