'REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT BUNGOMA
CIVIL APPEAL NO. E139 OF 2023
SNO TRANS LOGISTICS LIMITED……………………APPLICANT
VERSUS
ROSE OLEMBO…………………………………..……RESPONDENT
RULING
1. By way of a Notice of Motion application dated 18th February 2025, the Applicant herein seeks orders of stay of execution of judgement and decree of Hon. P.Y. Kulecho dated 29th September 2023 in Webuye SPMC No. 88 of 2020 pending the hearing and determination of its appeal
2. The Application is premised on Order 22 Rule 10 & 11, Order 19 Rule 2, Order 1 Rule 15 of the Civil Procedure Rules and Sections 1A and 3A of the Civil Procedure Act.
3. The Motion application is supported by the grounds laid out on its face and the depositions in the Affidavit of, Job Odhiambo Ochieng, counsel on record for the Applicant duly authorized to swear the Affidavit on behalf of the Applicant.
4. The deponent to the supporting affidavit deposed that the judgement in favour of the Respondent herein was delivered on 29th September 2023, by the trial Court and that on 6th February 2025, the Respondent proceeded to proclaim the moveable items of the Applicant herein using warrants of attachments dated 20th January 2025. That the auctioneers have already proclaimed the Applicant’s goods and the physical removal of the goods is imminent anytime from now. That the Applicant stands to suffer substantial and irreparable loss and damage as there is a likelihood that the Applicant will be unable to recover the decretal sum awarded herein from the Respondent. That no injustice or prejudice shall be suffered by the Respondent that cannot be compensated by way of costs if the application is allowed.
5. Opposing the Motion application, the Respondent vide her counsel, Bruce O. Odeny, counsel on record duly authorized to swear the Affidavit on her behalf swore a Replying Affidavit on 26th February 2025, where he termed the Motion application as fatally defective, an afterthought and an abuse of Court process. He deposed that the jurisdiction of this Court to grant or decline an order for stay of execution is not only original but discretionary. That the Applicant is a foreign company and by chance and expensive networking, the auctioneer was able to trace it’s vehicles while on transit through Kenya for purposes of proclaiming the same and should stay of execution orders be granted then, the Applicant is capable of removing their vehicles from within the jurisdiction of this Court and never bring them back to defeat the ends of justice in the event their appeal fails.
6. Vide orders issued on 27th February 2025, this Court directed the parties to canvass the motion application by way of written submissions. Both parties complied with the Court’s directive.
7. In this instance application, the issue for determination is whether the stay of execution should be granted.
8. As to whether the Appellant has satisfied the conditions for the grant of stay of execution pending Appeal; the principles guiding the grant of a stay of execution pending appeal are well settled. These principles are provided for under Order 42 rule 6(2) of the Civil Procedure Rules which provides:
“No order for stay of execution shall be made under subrule (1) unless—
(a)the court is satisfied that substantial loss may result to the applicant unless the order is made and that the application has been made without unreasonable delay; and
(b)such security as the court orders for the due performance of such decree or order as may ultimately be binding on him has been given by the applicant.
9. Further to the grounds on substantial loss and security, I understand that stay may only be granted for sufficient cause and that the Court in deciding whether or not to grant the stay underscores the overriding objective stipulated in Sections 1A and 1B of the Civil Procedure Act. The Court is thus enjoined to give effect to the overriding objective in the exercise of its powers under the Civil Procedure Act or in the interpretation of any of its provisions.
10. Section 1A(2) of the Civil Procedure Act provides that “the Court shall, in the exercise of its powers under this Act or the interpretation of any of its provisions, seek to give effect to the overriding objective” while under section 1B some of the aims of the said objectives are; “the just determination of the proceedings; the efficient disposal of the business of the Court; the efficient use of the available judicial and administrative resources; and the timely disposal of the proceedings, and all other proceedings in the Court, at a cost affordable by the respective parties.”
11. Therefore, an Applicant seeking stay of execution of a decree or an order pending appeal is obliged to satisfy the conditions set out in Order 42 Rule 6(2), aforementioned: namely (a) that substantial loss may result to the applicant unless the order is made, (b) that the application has been made without unreasonable delay, and (c) that such security as the court orders for the due performance of such decree or order as may ultimately be binding on the applicant has been given. See Antoine Ndiaye v African Virtual University [2015] eKLR.
12. This application was filed timeously. However, I also have to consider whether security for the decretal sum should be furnished. In the instant application, the Applicant is willing to settle the security of costs as submitted if the application is allowed. I am inclined to find that security for the due performance of the decree herein is essential to protect the rights of the successful Respondent pending the determination of the appeal.
13. The Court, in RWW v EKW [2019] eKLR, considered the purpose of a stay of execution order pending appeal, in the following words:
“The purpose of an application for stay of execution pending an appeal is to preserve the subject matter in dispute so that the rights of the appellant who is exercising the undoubted right of appeal are safeguarded and the appeal if successful, is not rendered nugatory. However, in doing so, the court should weigh this right against the success of a litigant who should not be deprived of the fruits of his/her judgment. The court is also called upon to ensure that no party suffers prejudice that cannot be compensated by an award of costs.
9.Indeed to grant or refuse an application for stay of execution pending appeal is discretionary. The Court when granting the stay however, must balance the interests of the Appellant with those of the Respondent.”
14. The decree is a monetary decree and I also understand the Applicant is a foreign company and it was an expensive affair for the auctioneers to trace their vehicles while on transit through Kenya.
15. The upshot of the foregoing is that, I allow the Notice of Motion dated 18th February 2025, as follows:
a. There be stay of execution of the Judgment and Decree in SPMC No. 88 of 2020 pending the hearing and determination of the appeal.
b. The Applicant shall on deposit one half of the decretal sum of Ksh 495,943.50 with the Respondent within 30 days and deposit the other half of Ksh 495,943.50 in a joint interest earning account of parties advocates within 60 days from the date hereof.
c. The Appellant shall pay the auctioneers cost of Ksh 308,000 forthwith.
d. In the event of default in compliance with orders No b and c above the Respondent and the Auctioneer shall be at liberty to execute.
e. The Respondent is awarded cost of this application assessed at ksh 15,000.
Orders accordingly.
Delivered, Signed and Dated at Bungoma this 30th day of September 2025.
M.S.Shariff
Judge
In the presence of:
N/A By Ogolla Okello & Co LLP for the Appellant
Akinyi for the Respondent
Peter Machoni Court Assistant
'
IN THE HIGH COURT OF KENYA
AT BUNGOMA
CIVIL APPEAL NO. E139 OF 2023
SNO TRANS LOGISTICS LIMITED……………………APPLICANT
VERSUS
ROSE OLEMBO…………………………………..……RESPONDENT
RULING
1. By way of a Notice of Motion application dated 18th February 2025, the Applicant herein seeks orders of stay of execution of judgement and decree of Hon. P.Y. Kulecho dated 29th September 2023 in Webuye SPMC No. 88 of 2020 pending the hearing and determination of its appeal
2. The Application is premised on Order 22 Rule 10 & 11, Order 19 Rule 2, Order 1 Rule 15 of the Civil Procedure Rules and Sections 1A and 3A of the Civil Procedure Act.
3. The Motion application is supported by the grounds laid out on its face and the depositions in the Affidavit of, Job Odhiambo Ochieng, counsel on record for the Applicant duly authorized to swear the Affidavit on behalf of the Applicant.
4. The deponent to the supporting affidavit deposed that the judgement in favour of the Respondent herein was delivered on 29th September 2023, by the trial Court and that on 6th February 2025, the Respondent proceeded to proclaim the moveable items of the Applicant herein using warrants of attachments dated 20th January 2025. That the auctioneers have already proclaimed the Applicant’s goods and the physical removal of the goods is imminent anytime from now. That the Applicant stands to suffer substantial and irreparable loss and damage as there is a likelihood that the Applicant will be unable to recover the decretal sum awarded herein from the Respondent. That no injustice or prejudice shall be suffered by the Respondent that cannot be compensated by way of costs if the application is allowed.
5. Opposing the Motion application, the Respondent vide her counsel, Bruce O. Odeny, counsel on record duly authorized to swear the Affidavit on her behalf swore a Replying Affidavit on 26th February 2025, where he termed the Motion application as fatally defective, an afterthought and an abuse of Court process. He deposed that the jurisdiction of this Court to grant or decline an order for stay of execution is not only original but discretionary. That the Applicant is a foreign company and by chance and expensive networking, the auctioneer was able to trace it’s vehicles while on transit through Kenya for purposes of proclaiming the same and should stay of execution orders be granted then, the Applicant is capable of removing their vehicles from within the jurisdiction of this Court and never bring them back to defeat the ends of justice in the event their appeal fails.
6. Vide orders issued on 27th February 2025, this Court directed the parties to canvass the motion application by way of written submissions. Both parties complied with the Court’s directive.
7. In this instance application, the issue for determination is whether the stay of execution should be granted.
8. As to whether the Appellant has satisfied the conditions for the grant of stay of execution pending Appeal; the principles guiding the grant of a stay of execution pending appeal are well settled. These principles are provided for under Order 42 rule 6(2) of the Civil Procedure Rules which provides:
“No order for stay of execution shall be made under subrule (1) unless—
(a)the court is satisfied that substantial loss may result to the applicant unless the order is made and that the application has been made without unreasonable delay; and
(b)such security as the court orders for the due performance of such decree or order as may ultimately be binding on him has been given by the applicant.
9. Further to the grounds on substantial loss and security, I understand that stay may only be granted for sufficient cause and that the Court in deciding whether or not to grant the stay underscores the overriding objective stipulated in Sections 1A and 1B of the Civil Procedure Act. The Court is thus enjoined to give effect to the overriding objective in the exercise of its powers under the Civil Procedure Act or in the interpretation of any of its provisions.
10. Section 1A(2) of the Civil Procedure Act provides that “the Court shall, in the exercise of its powers under this Act or the interpretation of any of its provisions, seek to give effect to the overriding objective” while under section 1B some of the aims of the said objectives are; “the just determination of the proceedings; the efficient disposal of the business of the Court; the efficient use of the available judicial and administrative resources; and the timely disposal of the proceedings, and all other proceedings in the Court, at a cost affordable by the respective parties.”
11. Therefore, an Applicant seeking stay of execution of a decree or an order pending appeal is obliged to satisfy the conditions set out in Order 42 Rule 6(2), aforementioned: namely (a) that substantial loss may result to the applicant unless the order is made, (b) that the application has been made without unreasonable delay, and (c) that such security as the court orders for the due performance of such decree or order as may ultimately be binding on the applicant has been given. See Antoine Ndiaye v African Virtual University [2015] eKLR.
12. This application was filed timeously. However, I also have to consider whether security for the decretal sum should be furnished. In the instant application, the Applicant is willing to settle the security of costs as submitted if the application is allowed. I am inclined to find that security for the due performance of the decree herein is essential to protect the rights of the successful Respondent pending the determination of the appeal.
13. The Court, in RWW v EKW [2019] eKLR, considered the purpose of a stay of execution order pending appeal, in the following words:
“The purpose of an application for stay of execution pending an appeal is to preserve the subject matter in dispute so that the rights of the appellant who is exercising the undoubted right of appeal are safeguarded and the appeal if successful, is not rendered nugatory. However, in doing so, the court should weigh this right against the success of a litigant who should not be deprived of the fruits of his/her judgment. The court is also called upon to ensure that no party suffers prejudice that cannot be compensated by an award of costs.
9.Indeed to grant or refuse an application for stay of execution pending appeal is discretionary. The Court when granting the stay however, must balance the interests of the Appellant with those of the Respondent.”
14. The decree is a monetary decree and I also understand the Applicant is a foreign company and it was an expensive affair for the auctioneers to trace their vehicles while on transit through Kenya.
15. The upshot of the foregoing is that, I allow the Notice of Motion dated 18th February 2025, as follows:
a. There be stay of execution of the Judgment and Decree in SPMC No. 88 of 2020 pending the hearing and determination of the appeal.
b. The Applicant shall on deposit one half of the decretal sum of Ksh 495,943.50 with the Respondent within 30 days and deposit the other half of Ksh 495,943.50 in a joint interest earning account of parties advocates within 60 days from the date hereof.
c. The Appellant shall pay the auctioneers cost of Ksh 308,000 forthwith.
d. In the event of default in compliance with orders No b and c above the Respondent and the Auctioneer shall be at liberty to execute.
e. The Respondent is awarded cost of this application assessed at ksh 15,000.
Orders accordingly.
Delivered, Signed and Dated at Bungoma this 30th day of September 2025.
M.S.Shariff
Judge
In the presence of:
N/A By Ogolla Okello & Co LLP for the Appellant
Akinyi for the Respondent
Peter Machoni Court Assistant
'