1. By a Notice of Motion dated 31 st October 2025 brought under Section 1A, 1B and 3A of the Civil Procedure Act and Order 42 rule 6 and Order 51 of the Civil Procedure rules 2020 the appellant moved this court for ORDERS:
a) Spent
b) Spent
c) That the Honourable Court be pleased to grant a temporary stay of execution of the ruling delivered on 24 th October 2025 and warrants of arrest issued against the Appellant on the 15 th October 2025 pending the hearing and determination of the Appeal.
d) That costs be provided for.
2. The application is propped by the grounds on its face and the affidavit of Peter Mulei Sammy sworn on 31 st October 2025.
3. He states that on 24 th October 2025 the lower court dismissed his application. He is dissatisfied with the said ruling and has filed the instant appeal. He prays for stay of execution of the said ruling dated 24 th October 2025 otherwise the Respondent will proceed to arrest the appellant.
4. The applicant states that the execution process has commenced as evidenced by the Notice to show cause dated 15 th September 2025 and warrants of arrest were issued on 15 th October 2025 hence it is imperative that the same are stayed pending the hearing and determination of the instant appeal.
5. The respondent failed to file his response as at the time of making this determination. I have considered the application filed, the affidavit in support and the submissions on record. The issue for consideration is whether the application has merit and what orders this court should make.
6. The background of the application is that the Appellant herein filed a notice of motion application dated 14 th October 2025 under certificate of urgency seeking to settle the judgement sum of ksh. 450,000/- in installments of ksh. 50,000/- per month until payment in full. On 24 th October 2025 the court dismissed the said application with costs of ksh. 5,000/- to the claimant.
7. It is worth noting that the order that the applicant seeks to stay is the order of the trial court dismissing his application. This is a negative order. The Courts have held that negative orders cannot be stayed.
8. I am guided by the decision in the case of Western College of Arts and Applied Sciences vs Oranga & Others (1976-80) 1 KLR 63 , the Court of Appeal whilst considering whether an order of stay can be granted in respect of a negative order and which I fully adopt stated inter alia as follows: -
“…But what is there to be executed under the judgement, the subject of the intended appeal the High Court has merely dismissed the suit with costs. An execution can only be in respect of costs…….
The High court has not ordered any of the parties to do anything, or to refrain from doing anything, or to pay any sum. There is nothing arising out of the High Court judgement for this Court, in an application for stay to enforce or restrain by injunction.”
9. Further, in the more recent case of Kenya Commercial Bank Limited vs Tamarind Meadows Limited & 7 Others [2016] Eklr the Court of Appeal expounded on stay of execution stating:
“16. In Kanwal Sarjit Singh Dhiman vs Keshavji Juvraj Shah (2008) Eklr , the Court of Appeal, while dealing with a similar application for stay of a negative order, held as follows:
“the 2 nd prayer in the application is for stay (of execution) of the order of the superior court made on 18 th December 2006. The order of 18 th December 2006 merely dismissed the application for setting aside the judgement with costs. By the order, the superior court did not order any of the parties to do anything or refrain from doing anything or to pay any sum. It was thus, a negative order which is incapable of execution save in respect of costs only (see Western College of Arts & Applied Sciences vs Oranga 7 Others [1976] KLR 63 at page 66 paragraph C )”
10. The orders dismissing the applicant’s application seeking to defray the judgement in instalments cannot be stayed. It is clear that a negative order is incapable of being stayed because there is nothing to stay.
11. The applicant has also sought for stay of the warrants of arrest issued against him on the 15 th October 2025 pending the hearing and determination of the instant appeal. Execution is a lawful process. In law, the fact that the process of execution has been put in motion, or likely to be put in motion, by itself, does not amount to substantial loss. Even when execution has been levied and completed i.e the attached properties have been sold, does not in itself amount to substantial loss under Order 42 rule 6 of the Civil Procedure Rules.
12. The applicant must establish other factors which show that the execution will create a state of affairs that will irreparably affect or negate the very essential core of the applicant as the successful party in the appeal. This is what substantial loss would entail. In discussing the question of substantial loss the Court of Appeal in Mukuma vs Abuoga (1988) KLR 645 held: -
“The discretion under rule 5(2)(b) is at large, but as was pointed out in the Kenya Shell case substantial loss is the cornerstone of both jurisdictions. That is what has to be prevented, because such loss would render the appeal nugatory. Therefore, it is necessary to preserve the status quo.”
13. We bear in mind that an arguable appeal is not necessarily one that will succeed, but simply one that is deserving of the court’s consideration, (See Dennis Mogambi Mang’are vs Attorney General & 3 Others [2012] eKLR . I have considered the grounds of appeal and find out that they mainly question the trial court’s exercise of discretion in dismissing the Appellant’s application on the grounds that the application demonstrated abuse of the court process. In my view, this is an arguable issue to be considered at the hearing of the appeal.
14. Has the second the second limb on nugatory aspect been demonstrated? Regarding the nugatory test, I am not satisfied that the appeal will be rendered a mere paper victory if it succeeds. As the Court reiterated in Stanley Kangethe Kinyanjui vs. Tony Keter & 5 Others (supra) and which I fully adopt:
“Whether or not an appeal will be rendered nugatory depends on whether or not what is sought to be stayed if allowed to happen is reversible; or if it is not reversible whether damages will reasonably compensate the party aggrieved .” [emphasis added]”
15. The applicant has attached an mpesa message showing that he paid ksh. 30,000/- but the same was sent back by the respondent. That pending the appeal he is committed to paying the first instalment of ksh. 50,000/- as proposed in the application and that previously the ksh. 50,000/- sent via mpesa was refunded by the respondent.
16. The applicant did not demonstrate that the respondent would be unable to adequately pay him any damages as may be ordered should the intended appeal ultimately succeed. In light of the above assessment and reasoning, it is my finding that the applicant has not satisfied the court that the intended appeal shall be rendered nugatory if the stay order is not granted.
17. The application therefore fails, the same is hereby dismissed with costs being in the appeal.
DELIVERED, DATED and SIGNED at MOMBASA on this 17 TH day of DECEMBER 2025.
Ruling delivered through Microsoft Teams Online Platform.
WENDY KAGENDO MICHENI
JUDGE
In the presence of;-
a) Spent
b) Spent
c) That the Honourable Court be pleased to grant a temporary stay of execution of the ruling delivered on 24 th October 2025 and warrants of arrest issued against the Appellant on the 15 th October 2025 pending the hearing and determination of the Appeal.
d) That costs be provided for.
2. The application is propped by the grounds on its face and the affidavit of Peter Mulei Sammy sworn on 31 st October 2025.
3. He states that on 24 th October 2025 the lower court dismissed his application. He is dissatisfied with the said ruling and has filed the instant appeal. He prays for stay of execution of the said ruling dated 24 th October 2025 otherwise the Respondent will proceed to arrest the appellant.
4. The applicant states that the execution process has commenced as evidenced by the Notice to show cause dated 15 th September 2025 and warrants of arrest were issued on 15 th October 2025 hence it is imperative that the same are stayed pending the hearing and determination of the instant appeal.
5. The respondent failed to file his response as at the time of making this determination. I have considered the application filed, the affidavit in support and the submissions on record. The issue for consideration is whether the application has merit and what orders this court should make.
6. The background of the application is that the Appellant herein filed a notice of motion application dated 14 th October 2025 under certificate of urgency seeking to settle the judgement sum of ksh. 450,000/- in installments of ksh. 50,000/- per month until payment in full. On 24 th October 2025 the court dismissed the said application with costs of ksh. 5,000/- to the claimant.
7. It is worth noting that the order that the applicant seeks to stay is the order of the trial court dismissing his application. This is a negative order. The Courts have held that negative orders cannot be stayed.
8. I am guided by the decision in the case of Western College of Arts and Applied Sciences vs Oranga & Others (1976-80) 1 KLR 63 , the Court of Appeal whilst considering whether an order of stay can be granted in respect of a negative order and which I fully adopt stated inter alia as follows: -
“…But what is there to be executed under the judgement, the subject of the intended appeal the High Court has merely dismissed the suit with costs. An execution can only be in respect of costs…….
The High court has not ordered any of the parties to do anything, or to refrain from doing anything, or to pay any sum. There is nothing arising out of the High Court judgement for this Court, in an application for stay to enforce or restrain by injunction.”
9. Further, in the more recent case of Kenya Commercial Bank Limited vs Tamarind Meadows Limited & 7 Others [2016] Eklr the Court of Appeal expounded on stay of execution stating:
“16. In Kanwal Sarjit Singh Dhiman vs Keshavji Juvraj Shah (2008) Eklr , the Court of Appeal, while dealing with a similar application for stay of a negative order, held as follows:
“the 2 nd prayer in the application is for stay (of execution) of the order of the superior court made on 18 th December 2006. The order of 18 th December 2006 merely dismissed the application for setting aside the judgement with costs. By the order, the superior court did not order any of the parties to do anything or refrain from doing anything or to pay any sum. It was thus, a negative order which is incapable of execution save in respect of costs only (see Western College of Arts & Applied Sciences vs Oranga 7 Others [1976] KLR 63 at page 66 paragraph C )”
10. The orders dismissing the applicant’s application seeking to defray the judgement in instalments cannot be stayed. It is clear that a negative order is incapable of being stayed because there is nothing to stay.
11. The applicant has also sought for stay of the warrants of arrest issued against him on the 15 th October 2025 pending the hearing and determination of the instant appeal. Execution is a lawful process. In law, the fact that the process of execution has been put in motion, or likely to be put in motion, by itself, does not amount to substantial loss. Even when execution has been levied and completed i.e the attached properties have been sold, does not in itself amount to substantial loss under Order 42 rule 6 of the Civil Procedure Rules.
12. The applicant must establish other factors which show that the execution will create a state of affairs that will irreparably affect or negate the very essential core of the applicant as the successful party in the appeal. This is what substantial loss would entail. In discussing the question of substantial loss the Court of Appeal in Mukuma vs Abuoga (1988) KLR 645 held: -
“The discretion under rule 5(2)(b) is at large, but as was pointed out in the Kenya Shell case substantial loss is the cornerstone of both jurisdictions. That is what has to be prevented, because such loss would render the appeal nugatory. Therefore, it is necessary to preserve the status quo.”
13. We bear in mind that an arguable appeal is not necessarily one that will succeed, but simply one that is deserving of the court’s consideration, (See Dennis Mogambi Mang’are vs Attorney General & 3 Others [2012] eKLR . I have considered the grounds of appeal and find out that they mainly question the trial court’s exercise of discretion in dismissing the Appellant’s application on the grounds that the application demonstrated abuse of the court process. In my view, this is an arguable issue to be considered at the hearing of the appeal.
14. Has the second the second limb on nugatory aspect been demonstrated? Regarding the nugatory test, I am not satisfied that the appeal will be rendered a mere paper victory if it succeeds. As the Court reiterated in Stanley Kangethe Kinyanjui vs. Tony Keter & 5 Others (supra) and which I fully adopt:
“Whether or not an appeal will be rendered nugatory depends on whether or not what is sought to be stayed if allowed to happen is reversible; or if it is not reversible whether damages will reasonably compensate the party aggrieved .” [emphasis added]”
15. The applicant has attached an mpesa message showing that he paid ksh. 30,000/- but the same was sent back by the respondent. That pending the appeal he is committed to paying the first instalment of ksh. 50,000/- as proposed in the application and that previously the ksh. 50,000/- sent via mpesa was refunded by the respondent.
16. The applicant did not demonstrate that the respondent would be unable to adequately pay him any damages as may be ordered should the intended appeal ultimately succeed. In light of the above assessment and reasoning, it is my finding that the applicant has not satisfied the court that the intended appeal shall be rendered nugatory if the stay order is not granted.
17. The application therefore fails, the same is hereby dismissed with costs being in the appeal.
DELIVERED, DATED and SIGNED at MOMBASA on this 17 TH day of DECEMBER 2025.
Ruling delivered through Microsoft Teams Online Platform.
WENDY KAGENDO MICHENI
JUDGE
In the presence of;-