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JudgmentSIBED TRANSPORTERS CO. LTD VS HAMPHREY LUKAMIKA KIKUMBA11 min read

SIBED TRANSPORTERS CO. LTD VS HAMPHREY LUKAMIKA KIKUMBA

High Court at Eldoret High Court · · Martha Wanzila Mutuku

Introduction

1. Before the Court is the Appellant/Applicant’s Notice of Motion dated 15th June 2026 and filed on 18th June 2026. The application is principally brought under Order 42 Rule 6 of the Civil Procedure Rules and seeks, inter alia, an order staying execution of the judgment and decree delivered on 28th May 2026 in Eldoret CMCC No. E024 of 2026 pending the hearing and determination of the appeal.

2. The Applicant also seeks an order restraining the Respondent from extracting warrants of attachment or otherwise executing the decree pending determination of the appeal.

3. The application is supported by the affidavit sworn by Said Ismail Mohamed. It is opposed through the Respondent’s replying affidavit sworn on 30th June 2026. The parties canvassed the application through written submissions.

The Applicant’s case

4. The Applicant states that it is aggrieved by the trial court’s judgment, particularly the award made under the head of loss of user, and has lodged an appeal challenging that portion of the judgment.

5. The Applicant contends that unless execution is stayed, its property is liable to attachment and sale, thereby occasioning it substantial loss and rendering the appeal nugatory.

6. It further avers that the appeal raises arguable questions concerning the evidential basis and assessment of damages for loss of user. The Applicant expresses its willingness to comply with any conditions regarding security that the Court may impose.

7. In its submissions, the Applicant maintains that the application was filed promptly and that the Court should preserve the subject matter of the appeal. It urges the Court to balance the parties’ competing rights by granting stay on appropriate terms.

The Respondent’s case

8. The Respondent opposes the application on the ground that the Applicant has not satisfied the conditions prescribed by Order 42 Rule 6(2) of the Civil Procedure Rules.

9. The Respondent concedes that the application was filed without unreasonable delay. He nevertheless argues that the Applicant has neither demonstrated substantial loss nor offered security for due performance of the decree.

10. The Respondent points out that the memorandum of appeal challenges only the award for loss of user and does not contest the awards for material damage, towing charges, assessor’s fees and search fees. He consequently argues that there is no justification for staying execution of the entire decree or withholding its undisputed portion.

11. The Respondent further states that he is a person of means and is capable of refunding any amount that may ultimately be found not to have been payable should the appeal succeed.

12. It is also contended that the instructions to institute the appeal emanated from the Applicant’s insurer and not from the Applicant itself. On that basis, the Respondent challenges the competence of the supporting affidavit under Order 19 Rule 3 of the Civil Procedure Rules.

13. The Respondent relies upon, among other authorities, Peter Ndung’u Ngae & 2 Others v John Mugane Karomo [2015] KEHC 1418 (KLR), Machira t/a Machira & Company Advocates v East African Standard (No. 2) [2002] KEHC 1167 (KLR) and Shem David Mukumbi v Alice Nzula Kilonzo [2021] KEHC 13430 (KLR).

14. The Respondent accordingly asks the Court to dismiss the application with costs and permit him to enjoy the fruits of the judgment.

Issues for determination

15. Having considered the application, the affidavits, the written submissions and the applicable law, the following issues arise for determination:

a) Whether the application is competent in view of the challenge to the authority and competence of the supporting deponent;

b) Whether the Applicant has satisfied the requirements for stay of execution pending appeal; and

c) What orders should issue regarding the disputed and undisputed portions of the decree.

Analysis and determination

Competence of the application

16. The Respondent contends that the instructions to appeal emanated from an insurer and that the supporting affidavit was therefore sworn by a stranger to the proceedings.

17. Order 19 Rule 3(1) of the Civil Procedure Rules requires affidavits to be confined to facts which the deponent is able, from his own knowledge, to prove. In interlocutory proceedings, however, statements based upon information and belief may be admitted provided the sources and grounds thereof are disclosed.

18. The fact that an insurer may have communicated instructions concerning the conduct of litigation does not, by itself, establish that the appeal or application was instituted without the authority of the insured judgment debtor. Insurers routinely participate in the defence and management of claims falling within the scope of their policies.

19. The proceedings remain instituted in the name of SIBED Transport Company Limited, which was the defendant before the trial court and is the party directly bound by the resulting decree. In the absence of cogent evidence that the appeal was filed without its knowledge or authority, the Court is not persuaded that correspondence emanating from the insurer renders the proceedings incompetent.

20. Moreover, the present application is interlocutory. Information derived from the Applicant’s advocates, insurer or records may properly be placed before the Court provided its source is sufficiently disclosed. Any matters that are not within the deponent’s personal knowledge may be assigned the appropriate evidential weight without necessarily striking out the entire affidavit or application.

21. The objection to the competence of the application is therefore rejected.

Requirements for stay of execution

22. Order 42 Rule 6(1) of the Civil Procedure Rules makes it clear that an appeal does not, by itself, operate as a stay of execution. Under subrule (2), an applicant must demonstrate that substantial loss may result unless stay is granted, that the application was made without unreasonable delay and that security for due performance of the decree has been provided.

23. In Vishram Ravji Halai v Thornton & Turpin (1963) Ltd [1990] KLR 365 , the Court of Appeal explained that although the power to grant stay is discretionary, the High Court’s discretion is circumscribed by the conditions prescribed under Order 42 Rule 6. The Applicant must therefore satisfy those statutory conditions before the discretion can be exercised in its favour.

24. At the same time, the discretion must be exercised in a manner that preserves the integrity of the appellate process without unjustifiably depriving the successful litigant of the fruits of the judgment.

25. In Butt v Rent Restriction Tribunal [1979] KECA 22 (KLR), also reported as [1982] KLR 417 , the Court of Appeal stated that the discretion should be exercised so that an appeal is not rendered nugatory, while taking account of the particular circumstances of each case.

26. In RWW v EKW [2019] KEHC 6523 (KLR), the Court explained that the purpose of stay pending appeal is to preserve the subject matter so that the rights of the appellant are safeguarded, while simultaneously ensuring that the successful party is not unfairly deprived of the fruits of the judgment.

27. This balance was similarly emphasized in Absalom Dova v Tarbo Transporters [2013] eKLR, where the Court observed that stay pending appeal is intended to ensure that no party is rendered worse off by reason of an order of the Court. The Court must reconcile the appellant’s right to pursue the appeal with the decree-holder’s corresponding right to the benefit of the decree.

28. Conversely, in Machira t/a Machira & Company Advocates v East African Standard (No. 2) [2002] KEHC 1167 (KLR), the Court cautioned against concentrating exclusively upon the appellant’s interests while disregarding the rights of the successful litigant. The discretion must therefore be exercised even-handedly.

Whether the application was filed without unreasonable delay

29. The judgment sought to be appealed from was delivered on 28th May 2026. The present application was filed on 18th June 2026, approximately three weeks later and within the period during which the trial court had granted temporary stay.

30. The Respondent concedes, correctly in the Court’s view, that the application was brought without unreasonable delay. The requirement concerning promptitude has therefore been satisfied.

Whether the Applicant has demonstrated substantial loss

31. Substantial loss is the cornerstone of the jurisdiction to grant stay. In Kenya Shell Limited v Benjamin Karuga Kibiru & Another [1986] KLR 410, the Court of Appeal held that substantial loss must be established because, without evidence of such loss, it would be difficult to justify depriving a successful litigant of the fruits of the judgment.

32. The mere fact that execution has commenced, or is likely to commence, is not sufficient. In James Wangalwa & Another v Agnes Naliaka Cheseto [2012] KEHC 1094 (KLR), the Court held that execution is a lawful process and does not, by itself, amount to substantial loss. The applicant must establish additional circumstances demonstrating that execution would create a state of affairs that would substantially prejudice or negate the essential purpose of the appeal.

33. The decree presently before the Court is monetary. Ordinarily, satisfaction of a money decree does not render an appeal nugatory where the respondent is capable of refunding the amount should the appeal succeed. The Court must nevertheless examine the amount involved, the evidence concerning repayment and the circumstances of the individual case.

34. In National Industrial Credit Bank Ltd v Aquinas Francis Wasike & Another [2006] KECA 333 (KLR), the Court of Appeal recognized that an applicant cannot ordinarily be expected to have detailed knowledge of the respondent’s financial resources. Once a reasonable apprehension that the decretal amount may not be recovered is raised, the evidential burden shifts to the respondent because the respondent’s financial position is a matter peculiarly within his knowledge.

35. In the present case, the Respondent has stated on oath that he is a person of means and is capable of refunding the decretal sum. The Applicant has not placed before the Court cogent material contradicting that assertion or demonstrating that the Respondent would be unable to make restitution.

36. That omission weakens the Applicant’s case for an unconditional stay of the entire decree. It does not, however, conclude the inquiry. The Court must consider the precise scope of the appeal and determine whether execution can be structured in a manner that preserves the appeal while protecting the Respondent’s accrued rights.

37. The memorandum of appeal and the parties’ submissions demonstrate that the Applicant’s principal grievance concerns the award for loss of user. The awards for material damage, towing charges, assessor’s fees and search fees are not challenged.

38. There is consequently no proper basis for staying payment of the undisputed portion of the decree. An appeal limited to one component of an award should not ordinarily be employed to withhold the components against which no challenge has been mounted.

39. The Respondent is entitled to receive the undisputed portion of the decree. The contested award for loss of user can, however, be preserved through appropriate security pending determination of the appeal. This would prevent the appeal from being exposed to unnecessary prejudice without denying the Respondent the uncontested fruits of the judgment.

Security for due performance

40. The Respondent argues that the Applicant failed to propose any specific security. The Applicant, however, expressed its willingness to comply with such conditions as the Court may impose.

41. The purpose of security is not to punish an appellant but to guarantee due performance of the decree that may ultimately be binding upon it.

42. In Arun C. Sharma v Ashana Raikundalia t/a Rairundalia & Company Advocates & 2 Others [2014] eKLR, the Court held that security should secure the decree while remaining reasonable and non-punitive.

43. In Focin Motorcycle Company Ltd v Ann Wambui Wangui & Another [2018] KEHC 8358 (KLR), the Court held that an applicant’s willingness to provide security is an indication of good faith and that the nature and amount of security ultimately remain matters for the Court’s discretion.

44. The Court is therefore not persuaded that the Applicant’s failure to specify the precise form of security is fatal. Its willingness to comply with conditions imposed by the Court permits the Court to fashion an order that adequately protects both parties.

45. In the circumstances, payment of the undisputed components of the decree to the Respondent, coupled with the deposit of the disputed loss-of-user award in a joint interest-earning account, constitutes proportionate and sufficient security.

46. That arrangement allows the Respondent immediate access to the sums that are not under challenge, preserves the disputed amount and ensures that the successful party in the appeal will ultimately receive the contested sum together with the interest earned.

47. The Court therefore finds that the interests of justice favour a limited and conditional stay rather than either an unconditional stay of the entire decree or outright dismissal of the application.

Disposition

48. In the result, the Notice of Motion dated 15th June 2026 succeeds only to the extent necessary to preserve the disputed award for loss of user.

49. Accordingly, the Court makes the following orders:

a) There shall be a stay of execution pending the hearing and determination of the appeal, limited exclusively to the amount awarded by the trial court under the head of loss of user.

b) Within thirty (30) days from the date of this ruling, the Applicant shall settle the entire undisputed portion of the decree, comprising the awards for material damage, towing charges, assessor’s fees and search fees.

c) Within the same period of thirty (30) days, the Applicant shall deposit the entire amount awarded for loss of user in a joint interest-earning account opened in the names of the advocates for the parties in a reputable commercial bank.

d) If the parties are unable to open the joint interest-earning account within the stipulated period, the Applicant shall, before the expiry of that period, deposit the disputed amount in Court.

e) The stay granted under order (a) shall lapse automatically and without further reference to the Court if the Applicant fails to comply fully with orders (b), (c) or (d) within the stipulated period.

f) For the avoidance of doubt, the Respondent shall be at liberty to execute for the undisputed portion of the decree if the Applicant fails to pay it within thirty (30) days.

g) The Applicant shall file and serve the record of appeal within sixty (60) days from the date of this ruling.

h) The Deputy Registrar shall call for the original trial court record and take the necessary steps towards the expeditious admission and disposal of the appeal.

i) The costs of the application shall abide the outcome of the appeal.

50. Orders accordingly.

DELIVERED, DATED, AND SIGNED ON THIS 17 TH DAY OF SEPTEMBER, 2026.

JUDGMENT DELIVERED THROUGH MICROSOFT TEAMS ONLINE PLATFORM.

MARTHA MUTUKU-JUDGE.

In the presence of: -

Mr. Kasina h/b for Mr. Muema for the Applicant.

Mr. Kinyua for Respondent.

Court Assistant- Mr. Kibet

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    SIBED TRANSPORTERS CO. LTD VS HAMPHREY LUKAMIKA KIKUMBA SIBED TRANSPORTERS CO. LTD VS HAMPHREY LUKAMIKA KIKUMBA