1. Before this Court for determination is the Notice of Motion dated 30th April, 2025. The Applicants seek, inter alia, an order of stay of execution of the Judgment and Decree of the trial court delivered on 22nd April, 2025, pending the hearing and determination of the appeal.
Background
2. The Application is premised on the grounds set out on its face and supported by the affidavit of Mr. Akola John Otieno, the Principal and Secretary to the Governing Council of Kisii National Polytechnic.
3. The deponent states that on 28th April, 2025, M/s Betico Auctioneers served him with Warrants of Attachment of Movable Property dated 24th April, 2025, arising from a decree issued on 22nd April, 2025. Upon inquiry, he was shown an undated, unsigned and uncertified copy of the Judgment, which indicated that judgment had been entered in favour of the Respondent in the sum of Kshs. 14,980,002.20, together with costs and interest at court rates.
4. He further deponed that the Auctioneers proceeded to attach five (5) motor vehicles, including two school buses, and assorted office furniture belonging to Kisii National Polytechnic, pursuant to a Warrant of Sale dated 24th April, 2025. The attached properties, valued in excess of Kshs. 20 million, were listed in a Proclamation of Attachment accompanied by an Auctioneer’s Fee Note amounting to Kshs. 4,459,008.22.
5. It was his deposition that he later learnt from State Counsel that the matter before the trial court had been pending judgment, and that judgment had been deferred on 8th April, 2025 and 15th April, 2025, with directions that it would be delivered on notice. He contended that delivery of the judgment without notice denied the Applicants an opportunity to seek stay of execution before the trial court.
6. The Applicants further aver that the attached properties are wholly owned by the Government, and that the execution process violated Section 21 of the Government Proceedings Act and Order 29 Rule 2(2)(b) of the Civil Procedure Rules. They contend that unless stay is granted, the appeal will be rendered nugatory, and public assets will be irreparably lost through a scheduled public auction.
7. The Applicants state that they have filed an appeal against the entire decision and that the appeal is arguable with high chances of success.
Response
8. The Respondent filed a replying affidavit dated 22nd May, 2025, opposing the Application. He contends that the execution was lawfully carried out pursuant to a valid judgment, and that the Applicants were not absent during delivery of judgment, as the record shows that the 2nd Respondent was present.
9. The Respondent further argues that Kisii National Polytechnic is not Government, but a body corporate and a parastatal, capable of owning property and being sued, and that Section 21 of the Government Proceedings Act does not apply. He maintains that the Application does not meet the threshold under Order 42 Rule 6 of the Civil Procedure Rules, particularly on the requirement for security.
10. In the alternative, the Respondent urges that should stay be granted, the Applicants be ordered to deposit the entire decretal sum in a joint interest-earning account.
Issue for Determination
11. I have considered the Application, the replying affidavit, and the submissions on record. The sole issue for determination is:
Whether the Applicants have met the threshold for grant of stay of execution pending appeal.
Applicable Law
12. The principles governing stay of execution are set out under Order 42 Rule 6(2) of the Civil Procedure Rules, which requires an applicant to demonstrate:
a. That substantial loss may result unless stay is granted;
b. That the application has been made without unreasonable delay; and
c. That such security as the court orders has been provided.
13. These principles were reiterated in Butt v Rent Restriction Tribunal [1979], where the Court of Appeal emphasized that the discretion to grant stay should be exercised so as not to render an appeal nugatory.
Analysis
14. On the issue of delay, the impugned judgment was delivered on 22nd April, 2025, and the present Application was filed on 30th April, 2025. I find that the Application was filed timeously.
15. On substantial loss, the Applicants have demonstrated that execution has already commenced, with attachment of institutional assets including school buses and office equipment. Whether or not the property is ultimately deemed Government-owned, it is evident that disposal of such assets before the appeal is heard would occasion disruption of institutional operations and render the appeal nugatory should it succeed.
16. On security, while the Applicants did not propose security, this Court retains discretion to impose appropriate terms to balance the competing interests of the parties.
Determination
17. In the circumstances of this case, and bearing in mind the need to preserve the subject matter of the appeal while safeguarding the Respondent’s interests, I am satisfied that this is a proper case for grant of conditional stay.
Disposition
18. Accordingly, the Court makes the following orders:
a. There shall be a stay of execution of the Judgment and Decree of the trial court delivered on 22nd April, 2025 pending the hearing and determination of the appeal.
b. The stay is conditional upon the Applicants depositing half (½) of the decretal sum in a joint interest-earning account in the names of Kisii National Polytechnic and the Respondent’s counsel, within thirty (30) days from the date hereof.
d. Costs of the Application shall abide the outcome of the appeal .
T. A. ODERA
JUDGE
15.1.26
DELIVERED AT KISII THIS 15TH DAY OIF JANUARY 2026 IN THE PRESENCE OF MR NDIRITU FOR THE APPLICANT, MR MEROKA FOR THE RESPONDENT
DIRECTIONS ON THE APPEAL :
The record of appeal be filed and served within 30 days from today. Mention on
26.2.26.
T.A ODERA
JUDGE
15. 1.26
Background
2. The Application is premised on the grounds set out on its face and supported by the affidavit of Mr. Akola John Otieno, the Principal and Secretary to the Governing Council of Kisii National Polytechnic.
3. The deponent states that on 28th April, 2025, M/s Betico Auctioneers served him with Warrants of Attachment of Movable Property dated 24th April, 2025, arising from a decree issued on 22nd April, 2025. Upon inquiry, he was shown an undated, unsigned and uncertified copy of the Judgment, which indicated that judgment had been entered in favour of the Respondent in the sum of Kshs. 14,980,002.20, together with costs and interest at court rates.
4. He further deponed that the Auctioneers proceeded to attach five (5) motor vehicles, including two school buses, and assorted office furniture belonging to Kisii National Polytechnic, pursuant to a Warrant of Sale dated 24th April, 2025. The attached properties, valued in excess of Kshs. 20 million, were listed in a Proclamation of Attachment accompanied by an Auctioneer’s Fee Note amounting to Kshs. 4,459,008.22.
5. It was his deposition that he later learnt from State Counsel that the matter before the trial court had been pending judgment, and that judgment had been deferred on 8th April, 2025 and 15th April, 2025, with directions that it would be delivered on notice. He contended that delivery of the judgment without notice denied the Applicants an opportunity to seek stay of execution before the trial court.
6. The Applicants further aver that the attached properties are wholly owned by the Government, and that the execution process violated Section 21 of the Government Proceedings Act and Order 29 Rule 2(2)(b) of the Civil Procedure Rules. They contend that unless stay is granted, the appeal will be rendered nugatory, and public assets will be irreparably lost through a scheduled public auction.
7. The Applicants state that they have filed an appeal against the entire decision and that the appeal is arguable with high chances of success.
Response
8. The Respondent filed a replying affidavit dated 22nd May, 2025, opposing the Application. He contends that the execution was lawfully carried out pursuant to a valid judgment, and that the Applicants were not absent during delivery of judgment, as the record shows that the 2nd Respondent was present.
9. The Respondent further argues that Kisii National Polytechnic is not Government, but a body corporate and a parastatal, capable of owning property and being sued, and that Section 21 of the Government Proceedings Act does not apply. He maintains that the Application does not meet the threshold under Order 42 Rule 6 of the Civil Procedure Rules, particularly on the requirement for security.
10. In the alternative, the Respondent urges that should stay be granted, the Applicants be ordered to deposit the entire decretal sum in a joint interest-earning account.
Issue for Determination
11. I have considered the Application, the replying affidavit, and the submissions on record. The sole issue for determination is:
Whether the Applicants have met the threshold for grant of stay of execution pending appeal.
Applicable Law
12. The principles governing stay of execution are set out under Order 42 Rule 6(2) of the Civil Procedure Rules, which requires an applicant to demonstrate:
a. That substantial loss may result unless stay is granted;
b. That the application has been made without unreasonable delay; and
c. That such security as the court orders has been provided.
13. These principles were reiterated in Butt v Rent Restriction Tribunal [1979], where the Court of Appeal emphasized that the discretion to grant stay should be exercised so as not to render an appeal nugatory.
Analysis
14. On the issue of delay, the impugned judgment was delivered on 22nd April, 2025, and the present Application was filed on 30th April, 2025. I find that the Application was filed timeously.
15. On substantial loss, the Applicants have demonstrated that execution has already commenced, with attachment of institutional assets including school buses and office equipment. Whether or not the property is ultimately deemed Government-owned, it is evident that disposal of such assets before the appeal is heard would occasion disruption of institutional operations and render the appeal nugatory should it succeed.
16. On security, while the Applicants did not propose security, this Court retains discretion to impose appropriate terms to balance the competing interests of the parties.
Determination
17. In the circumstances of this case, and bearing in mind the need to preserve the subject matter of the appeal while safeguarding the Respondent’s interests, I am satisfied that this is a proper case for grant of conditional stay.
Disposition
18. Accordingly, the Court makes the following orders:
a. There shall be a stay of execution of the Judgment and Decree of the trial court delivered on 22nd April, 2025 pending the hearing and determination of the appeal.
b. The stay is conditional upon the Applicants depositing half (½) of the decretal sum in a joint interest-earning account in the names of Kisii National Polytechnic and the Respondent’s counsel, within thirty (30) days from the date hereof.
d. Costs of the Application shall abide the outcome of the appeal .
T. A. ODERA
JUDGE
15.1.26
DELIVERED AT KISII THIS 15TH DAY OIF JANUARY 2026 IN THE PRESENCE OF MR NDIRITU FOR THE APPLICANT, MR MEROKA FOR THE RESPONDENT
DIRECTIONS ON THE APPEAL :
The record of appeal be filed and served within 30 days from today. Mention on
26.2.26.
T.A ODERA
JUDGE
15. 1.26