REPUBLIC OF KENYA
IN THE HIGH COURT AT MAKUENI
CIVIL APPEAL NO. E019 OF 2025
TAHIR SHEIKH SAID
GRAIN MILLERS LTD…………….……………. APPELLANT/APPLICANT
-VERSUS-
JOSHUA MILO
SUSAN MILO (Suing as the legal representatives of the estate of)
PATRICK MILO ………………………………………….….... RESPONDENTS
RULING
Introduction
1. The Application for determination is dated 10/07/2025. It is brought under Article 50(1) & 159 of the Constitution of Kenya, Sections1A, 1B,3 & 3A of the Civil Procedure Act, Order 42 Rule 6(2) & 6(3), Order 43 (1)(b) & Order 51 Rules 1 & 3 of the Civil Procedure Rules 2010 and all other enabling provisions of the law. It seeks the following orders;
a) Spent.
b) Spent
c) THAT this honorable Court be pleased to grant a stay of execution of the judgment/decree delivered on 18/03/2025 in Joshua Milo & Susan Milo (Suing as the legal representatives of the estate of Patrick Milo) -vs- Tahir Sheikh Said Grain Millers Ltd, Makindu CMCC No. 536 of 2015 pending the hearing and determination of this appeal.
d) THAT the warrants of attachment issued are nullity and void ab initio as costs have not been assessed.
e) THAT the execution against the Appellant who is under administration is a nullity for failure to seek leave of the court and/or consent of the Administrator.
f) THAT the costs of this Application abide the outcome of the appeal.
The Application
2. The Application is supported by the grounds on its face and the Affidavit of Ponangipalli Venkata Ramana Rao sworn on the same day. He deponed that he is a duly licensed insolvency practitioner and Administrator wrongly sued as Tahir Sheikh Said Grain Millers Company working under the name of Tact Consultancy Services hence competent and authorized to swear this affidavit.
3. That the Applicant, Tahir Sheikh Said Grain Millers Ltd, was placed under administration by Kenya Commercial Bank Ltd (KCB) in exercise of its rights as a holder of a floating charge pursuant to the provisions of section 534 of the Insolvency Act on 30/05/2016. The Appointment letter from KCB and notice in the daily press are exhibited as PVRR 1 & 2 respectively.
4. That, on 06/06/2016, he accepted appointment as Administrator of the Applicant and notified the Registrar of companies of the appointment. The letter and notice of appointment are exhibited as PVRR 3 & 4 respectively. That, under the Insolvency Act, he is mandated to sue and be sued on behalf of the Applicant and legal proceedings are unsustainable against it.
5. That, on 18/03/2025, the trial court delivered judgment against the Appellant for kshs 1,816,690/= plus costs and interest and having been dissatisfied, the Appellant appealed. The judgment and Memorandum of Appeal are exhibited as PVRR 5 & 6 respectively. That, the interim 30 days stay of execution given at delivery of the judgment lapsed on 18/04/2025.
6. That, the Respondent obtained warrants on 10/06/2025 and proclaimed the Appellant’s goods on 11/06/2025 and the same were due for sale on 10/07/2025. The warrants, proclamation and copy of advertisement are exhibited as PVRR 7(a), 7(b) & 7(c) respectively. That, the warrants are illegal and a nullity as demand for payment has not been issued and costs have not been assessed.
7. That the Respondent needs leave of court and/or consent from Administrator before proceeding with execution since the Appellant is under administration. That the Appellant stands to suffer substantial and irreparable loss and damage as there is a real likelihood that the Administrator will be unable to recover the decretal sum which is quite enormous if paid to the Respondent whose financial standing is unknown to the Appellant.
8. That, the appeal is arguable and has high chances of success and they have offered to provide a bank guarantee as security. That the Application was made without unnecessary delay.
The Response
9. The Application was opposed through the Replying Affidavit of Joshua Milo Mathuku sworn on 17/07/2025 where he deponed that the Application is frivolous, vexatious and an abuse of the due process of the law. That, leave to prosecute and proceed with the matter was granted by this court as seen in annexure JMM1 . That, execution is part of concluding proceedings and enforcing the final court order.
10. That, filing an appeal is never a stay of execution as has been held by courts of higher ranking in many instances. That, judgment was delivered over 6 years ago and the parents of the deceased child have never had closure and as such, a bank guarantee is just a paper. That, half of the decretal sum should be given to the parents and the other half be deposited in a joint bank account.
11. That, it is for the Applicant to prove that they are people of straw as they are both working and have survived for all those years without depending on alms. That, they feel demeaned by the Applicant saying that they cannot refund the money if the appeal succeeds.
12. That, the warrants of attachment and sale were issued procedurally and the Applicant’s advocates were served with a draft decree before issuance of the final decree. An email extract and receipt for further court fees are exhibited as JMM2 & 3 respectively.
13. That, the auctioneers who have proclaimed the goods also need to be paid for work done. That, according to advice from his counsel, the law is not meant to aid the indolent but the vigilant.
14. The Application was canvassed through written submissions.
The Applicant’s Submissions
15. It was submitted that upon obtaining judgment in the lower court, the Respondent never sought approval to proceed with execution against the Appellant whom is under administration. It was contended that the court order dated 06/08/2019 was issued for the Respondent to continue court proceedings he had instituted in the lower court against the Appellant. That, the said order did not cover execution against the Appellant. Reliance was placed inter alia on Bake ‘n’ Bite Mombasa Ltd (under Administration) -vs- Janendra Raichand Shah & 3 Others (2018) KEHC 3108 (KLR) where it was held;
“13. From the above-mentioned section, it is clear while a company is under administration, for one to take steps to enforce a security over the company’s property, one has to obtain a consent of the administrator or act with the approval of court. this includes even attachments and executions.
14…….it is clear from the reading of section 560(1) of the Insolvency Act attachment or execution is not totally barred but it is unlawful to proceed to do so without the consent of the administrator or approval of the court so long as a moratorium is imposed on the assets of a company under administration… The Insolvency Act comes immediately into force once notice is given by the operation of the law and there is no need of serving a notice to the Respondents in person once the notice is either gazetted or advertised. There is no excuse for anyone therefore to proceed on with attachment or execution to recover debts by attaching company’s property once it is placed under administration.”
16. It was submitted that according to the grounds in the memorandum of appeal, the question of whether hearsay or indirect evidence on blameworthiness can prove liability is arguable and viable hence the appeal on liability is bonafide. That, the question as to; whether the award of kshs 1,500,000/= as loss of dependency for a 16-year-old deceased is excessive/deserving, is arguable. It was therefore submitted that the appeal is arguable and has high chances of success.
17. With regard to substantial loss, it was submitted that one of the objectives of administration is to maintain the company as a going concern and or to achieve a better outcome for the company’s creditors as a whole than would be likely to be the case if the company were liquidated. Referring to section 560A of the Insolvency Act, it was submitted that there is a reason why court approval is necessary before execution and that the Applicant will be prejudiced if execution is allowed to proceed without approval. Reliance was placed inter alia on Nakumatt Holdings Ltd & Anor -vs- Ideal Locations Ltd (2019) eKLR where the court stated;
“There is a good reason in our view why section 2 of that Act specifies the court to grant approval should the court be seized of the insolvency matter, namely the High Court. The administration of an insolvent company is for the benefit of all creditors of such company and a situation where creditors separately attach or take assets of a company would defeat the overall objective of the administration.”
18. Further reliance was placed on Midland Energy Ltd -vs- George Muiruri t/a Leakeys Auctioneers & Anor (2019) eKLR where the court stated;
“12. The design of our current insolvency laws is to give a second chance to financially distressed companies. A break from the past where the fate of an ailing company would invariably be a winding up or liquidation order. Administration is one of the alternatives to liquidation and is provided for in part VIII of the Act.
13. So as to achieve that objective, the company must be insulated from aggressive creditors who could cause a run for the company assets. The statute contemplates that upon such protection, a company will not be distracted from precipitate action and so the administrator will be able to perform his function in the interests of all the company’s creditors. The insulation of the company is provided by way of moratorium from other legal processes.”
19. Additionally, it was submitted that if money is paid to the Respondents, there is no likelihood that they will be able to refund if the appeal succeeds. It was contended that the burden of proving whether the deceased’s estate could satisfy the decretal sum shifted to the Respondents once the Applicant stated that it would not be able to recover the substantial amount from them. Reliance was placed on Kenya Orient Insurance Co. Ltd -vs- Paul Mathenge Gichuki & Anor (2014) eKLR where the court stated;
“Burden of proof that the Respondent can refund the decretal sum if the appeal succeeds shifts to the Respondent the moment Appellant states that it is unaware of Respondent’s resources. Appellant shifted the burden on the Respondents and the only response given by the Respondents was that they were both employees of the government and would be able to refund the amount if need be. The Respondent failed to shift the burden because they did not prove that indeed they were employed by the government and they did not show any other property that they own that could satisfy the decretal sum…”
20. With regard to security, it was submitted that there would be no need for the same if the court finds that the execution is unlawful. That, the execution should be set aside as a matter of right and the Respondent should comply with the relevant procedures before commencing execution.
21. On the other hand, it was submitted on a without prejudice basis that if the execution to be regular, the Applicant is willing to offer security in form of a bank guarantee.
The Respondent’s Submissions
22. With regard to the legality of the execution, it was submitted that the leave granted by this court encompassed all phases from trial, judgment to enforcement. Reliance was placed on Chief Officer, Ministry of Social Services, Youth, Sport and Culture & Anor -vs- Ndahugah Holdings Ltd (2025) KEHC 8459 (KLR) where the court stated; “Execution proceedings are a continuation of the suit and are necessary to realize the fruits of a valid judgment.” Consequently, it was submitted that execution in the present case was lawful and properly sanctioned.
23. It was submitted that the Applicant had failed to demonstrate that the Respondents were incapable of refunding the decretal sum and that the mere filing of an appeal could not stop lawful execution.
24. With regard to security, it was submitted that the proposal to give a bank guarantee was manifestly unfair as it denied the decree holder the fruits of judgment. That, a guarantee is not specific to this case and may have been used in several other cases thus being a guarantee just on paper and incapable of actualization. Reliance was placed on Butt -vs- Rent Restriction Tribunal (1982) KLR 417 where Madan J held;
“It is the discretion of the court to grant or refuse a stay, but what has to be judged in every case is whether there are or not particular circumstances in the case to make an order staying execution. It has been said that the court as a general rule ought to exercise its best discretion in a way so as to prevent the appeal if successful being nugatory.”
25. Consequently, it was submitted that the court should adopt a balanced approach. That, 50% of the decretal sum should be released to the Respondents and the balance be deposited in a joint interest earning account.
26. I have carefully considered the Application, Response and rival submissions, the issues for determination, in my view, are;
a) Whether the execution against the Applicant is lawful.
b) Whether the prayer for stay of execution should be granted.
Whether the execution against the Applicant is lawful.
27. The order from this court (Ong’udi J) issued on 06/08/2019 states: “That an order is hereby issued to give approval to the plaintiffs/applicants to continue the proceedings against the defendant in Makindu PMCC 536 of 2015 under the Insolvency Act.”
28. Section 560 (1) (d) of the Insolvency Act provides; “a person may begin or continue legal proceedings (including execution and distress) against the company or the company's property only with the consent of the administrator or with the approval of the Court.”
a. Consequently, a reading of the above provision is plain and clear that continuation of legal proceedings includes execution and distress. The leave granted by this court in 2019 was therefore sufficient. There was no need to seek additional leave for purposes of execution as the requisite leave had already been granted by court. This is in line with Ndahugah Holdings Ltd (supra) where the court stated that; “Execution proceedings are a continuation of the suit and are necessary to realize the fruits of a valid judgment.”
29. The execution against the Applicant is therefore lawful.
Whether stay of execution should be granted
30. According to Order 42 Rule 6 of the Civil Procedure Rules, the conditions which should guide the Court in determining whether to grant stay pending appeal are; whether substantial loss will occur if stay is not granted, whether the Application has been filed without unreasonable delay and furnishing security for the due performance of the decree.
31. Judgment by the trial court was delivered on 18/03/2025 and this Application was filed on 14/07/2025. Considering that the appeal was filed within the prescribed period, there was delay in filing the Application and it appears that the Applicant was jolted from slumber by the warrants of attachment and proclamation of goods in June 2025.
32. As for substantial loss, the Applicant is apprehensive that if the decretal amount is released to the Respondents, it may be hard to get a refund if the appeal succeeds. The decretal award at the time of attachment was kshs 2,159,997/= which, is substantial. On their part, the Respondents deponed that they are able to refund the amount as they are government employees. The information about the Respondents’ means is exclusive and peculiar to them hence without an affidavit of means, this court can only speculate about their ability to refund.
33. As for security, the grounds on the face of the Application indicate that the Applicant is willing to offer a cheque deposit while in the Supporting Affidavit, the Applicant proposes to provide a bank guarantee. It is common knowledge that bank guarantees are usually for a specific period and in this case, there is no information on whether the bank guarantee has lapsed or not. There is also no information on whether enforcing it would be problematic due to issues of privity of contract. In my view, the bank guarantee is not appropriate.
34. Be that as it may, the Court has a duty to balance the competing interests between the parties. While it is the Appellant’s right to pursue an appeal, the Respondents should also enjoy the fruits of winning the first round. However, from the Memorandum of Appeal it is evident that the applicant is contesting the awards on liability and quantum of damages
35. In the circumstances the interests of each need to be secured pending the hearing and determination of the appeal.
36. Hence , the application is allowed as follows; an order of stay of execution pending the hearing and determination of the appeal is granted on condition that the entire decretal sum is deposited in a joint interest earning account in the names of both Advocates on record within 45 days hereof, in default, the stay will lapse.
37. Costs to abide the appeal
Dated signed and delivered virtually (CTS) on 27 th March 2027
Mumbua T Matheka
Judge
Ruling HCCA E019 of 2025 Page 2 of 2
IN THE HIGH COURT AT MAKUENI
CIVIL APPEAL NO. E019 OF 2025
TAHIR SHEIKH SAID
GRAIN MILLERS LTD…………….……………. APPELLANT/APPLICANT
-VERSUS-
JOSHUA MILO
SUSAN MILO (Suing as the legal representatives of the estate of)
PATRICK MILO ………………………………………….….... RESPONDENTS
RULING
Introduction
1. The Application for determination is dated 10/07/2025. It is brought under Article 50(1) & 159 of the Constitution of Kenya, Sections1A, 1B,3 & 3A of the Civil Procedure Act, Order 42 Rule 6(2) & 6(3), Order 43 (1)(b) & Order 51 Rules 1 & 3 of the Civil Procedure Rules 2010 and all other enabling provisions of the law. It seeks the following orders;
a) Spent.
b) Spent
c) THAT this honorable Court be pleased to grant a stay of execution of the judgment/decree delivered on 18/03/2025 in Joshua Milo & Susan Milo (Suing as the legal representatives of the estate of Patrick Milo) -vs- Tahir Sheikh Said Grain Millers Ltd, Makindu CMCC No. 536 of 2015 pending the hearing and determination of this appeal.
d) THAT the warrants of attachment issued are nullity and void ab initio as costs have not been assessed.
e) THAT the execution against the Appellant who is under administration is a nullity for failure to seek leave of the court and/or consent of the Administrator.
f) THAT the costs of this Application abide the outcome of the appeal.
The Application
2. The Application is supported by the grounds on its face and the Affidavit of Ponangipalli Venkata Ramana Rao sworn on the same day. He deponed that he is a duly licensed insolvency practitioner and Administrator wrongly sued as Tahir Sheikh Said Grain Millers Company working under the name of Tact Consultancy Services hence competent and authorized to swear this affidavit.
3. That the Applicant, Tahir Sheikh Said Grain Millers Ltd, was placed under administration by Kenya Commercial Bank Ltd (KCB) in exercise of its rights as a holder of a floating charge pursuant to the provisions of section 534 of the Insolvency Act on 30/05/2016. The Appointment letter from KCB and notice in the daily press are exhibited as PVRR 1 & 2 respectively.
4. That, on 06/06/2016, he accepted appointment as Administrator of the Applicant and notified the Registrar of companies of the appointment. The letter and notice of appointment are exhibited as PVRR 3 & 4 respectively. That, under the Insolvency Act, he is mandated to sue and be sued on behalf of the Applicant and legal proceedings are unsustainable against it.
5. That, on 18/03/2025, the trial court delivered judgment against the Appellant for kshs 1,816,690/= plus costs and interest and having been dissatisfied, the Appellant appealed. The judgment and Memorandum of Appeal are exhibited as PVRR 5 & 6 respectively. That, the interim 30 days stay of execution given at delivery of the judgment lapsed on 18/04/2025.
6. That, the Respondent obtained warrants on 10/06/2025 and proclaimed the Appellant’s goods on 11/06/2025 and the same were due for sale on 10/07/2025. The warrants, proclamation and copy of advertisement are exhibited as PVRR 7(a), 7(b) & 7(c) respectively. That, the warrants are illegal and a nullity as demand for payment has not been issued and costs have not been assessed.
7. That the Respondent needs leave of court and/or consent from Administrator before proceeding with execution since the Appellant is under administration. That the Appellant stands to suffer substantial and irreparable loss and damage as there is a real likelihood that the Administrator will be unable to recover the decretal sum which is quite enormous if paid to the Respondent whose financial standing is unknown to the Appellant.
8. That, the appeal is arguable and has high chances of success and they have offered to provide a bank guarantee as security. That the Application was made without unnecessary delay.
The Response
9. The Application was opposed through the Replying Affidavit of Joshua Milo Mathuku sworn on 17/07/2025 where he deponed that the Application is frivolous, vexatious and an abuse of the due process of the law. That, leave to prosecute and proceed with the matter was granted by this court as seen in annexure JMM1 . That, execution is part of concluding proceedings and enforcing the final court order.
10. That, filing an appeal is never a stay of execution as has been held by courts of higher ranking in many instances. That, judgment was delivered over 6 years ago and the parents of the deceased child have never had closure and as such, a bank guarantee is just a paper. That, half of the decretal sum should be given to the parents and the other half be deposited in a joint bank account.
11. That, it is for the Applicant to prove that they are people of straw as they are both working and have survived for all those years without depending on alms. That, they feel demeaned by the Applicant saying that they cannot refund the money if the appeal succeeds.
12. That, the warrants of attachment and sale were issued procedurally and the Applicant’s advocates were served with a draft decree before issuance of the final decree. An email extract and receipt for further court fees are exhibited as JMM2 & 3 respectively.
13. That, the auctioneers who have proclaimed the goods also need to be paid for work done. That, according to advice from his counsel, the law is not meant to aid the indolent but the vigilant.
14. The Application was canvassed through written submissions.
The Applicant’s Submissions
15. It was submitted that upon obtaining judgment in the lower court, the Respondent never sought approval to proceed with execution against the Appellant whom is under administration. It was contended that the court order dated 06/08/2019 was issued for the Respondent to continue court proceedings he had instituted in the lower court against the Appellant. That, the said order did not cover execution against the Appellant. Reliance was placed inter alia on Bake ‘n’ Bite Mombasa Ltd (under Administration) -vs- Janendra Raichand Shah & 3 Others (2018) KEHC 3108 (KLR) where it was held;
“13. From the above-mentioned section, it is clear while a company is under administration, for one to take steps to enforce a security over the company’s property, one has to obtain a consent of the administrator or act with the approval of court. this includes even attachments and executions.
14…….it is clear from the reading of section 560(1) of the Insolvency Act attachment or execution is not totally barred but it is unlawful to proceed to do so without the consent of the administrator or approval of the court so long as a moratorium is imposed on the assets of a company under administration… The Insolvency Act comes immediately into force once notice is given by the operation of the law and there is no need of serving a notice to the Respondents in person once the notice is either gazetted or advertised. There is no excuse for anyone therefore to proceed on with attachment or execution to recover debts by attaching company’s property once it is placed under administration.”
16. It was submitted that according to the grounds in the memorandum of appeal, the question of whether hearsay or indirect evidence on blameworthiness can prove liability is arguable and viable hence the appeal on liability is bonafide. That, the question as to; whether the award of kshs 1,500,000/= as loss of dependency for a 16-year-old deceased is excessive/deserving, is arguable. It was therefore submitted that the appeal is arguable and has high chances of success.
17. With regard to substantial loss, it was submitted that one of the objectives of administration is to maintain the company as a going concern and or to achieve a better outcome for the company’s creditors as a whole than would be likely to be the case if the company were liquidated. Referring to section 560A of the Insolvency Act, it was submitted that there is a reason why court approval is necessary before execution and that the Applicant will be prejudiced if execution is allowed to proceed without approval. Reliance was placed inter alia on Nakumatt Holdings Ltd & Anor -vs- Ideal Locations Ltd (2019) eKLR where the court stated;
“There is a good reason in our view why section 2 of that Act specifies the court to grant approval should the court be seized of the insolvency matter, namely the High Court. The administration of an insolvent company is for the benefit of all creditors of such company and a situation where creditors separately attach or take assets of a company would defeat the overall objective of the administration.”
18. Further reliance was placed on Midland Energy Ltd -vs- George Muiruri t/a Leakeys Auctioneers & Anor (2019) eKLR where the court stated;
“12. The design of our current insolvency laws is to give a second chance to financially distressed companies. A break from the past where the fate of an ailing company would invariably be a winding up or liquidation order. Administration is one of the alternatives to liquidation and is provided for in part VIII of the Act.
13. So as to achieve that objective, the company must be insulated from aggressive creditors who could cause a run for the company assets. The statute contemplates that upon such protection, a company will not be distracted from precipitate action and so the administrator will be able to perform his function in the interests of all the company’s creditors. The insulation of the company is provided by way of moratorium from other legal processes.”
19. Additionally, it was submitted that if money is paid to the Respondents, there is no likelihood that they will be able to refund if the appeal succeeds. It was contended that the burden of proving whether the deceased’s estate could satisfy the decretal sum shifted to the Respondents once the Applicant stated that it would not be able to recover the substantial amount from them. Reliance was placed on Kenya Orient Insurance Co. Ltd -vs- Paul Mathenge Gichuki & Anor (2014) eKLR where the court stated;
“Burden of proof that the Respondent can refund the decretal sum if the appeal succeeds shifts to the Respondent the moment Appellant states that it is unaware of Respondent’s resources. Appellant shifted the burden on the Respondents and the only response given by the Respondents was that they were both employees of the government and would be able to refund the amount if need be. The Respondent failed to shift the burden because they did not prove that indeed they were employed by the government and they did not show any other property that they own that could satisfy the decretal sum…”
20. With regard to security, it was submitted that there would be no need for the same if the court finds that the execution is unlawful. That, the execution should be set aside as a matter of right and the Respondent should comply with the relevant procedures before commencing execution.
21. On the other hand, it was submitted on a without prejudice basis that if the execution to be regular, the Applicant is willing to offer security in form of a bank guarantee.
The Respondent’s Submissions
22. With regard to the legality of the execution, it was submitted that the leave granted by this court encompassed all phases from trial, judgment to enforcement. Reliance was placed on Chief Officer, Ministry of Social Services, Youth, Sport and Culture & Anor -vs- Ndahugah Holdings Ltd (2025) KEHC 8459 (KLR) where the court stated; “Execution proceedings are a continuation of the suit and are necessary to realize the fruits of a valid judgment.” Consequently, it was submitted that execution in the present case was lawful and properly sanctioned.
23. It was submitted that the Applicant had failed to demonstrate that the Respondents were incapable of refunding the decretal sum and that the mere filing of an appeal could not stop lawful execution.
24. With regard to security, it was submitted that the proposal to give a bank guarantee was manifestly unfair as it denied the decree holder the fruits of judgment. That, a guarantee is not specific to this case and may have been used in several other cases thus being a guarantee just on paper and incapable of actualization. Reliance was placed on Butt -vs- Rent Restriction Tribunal (1982) KLR 417 where Madan J held;
“It is the discretion of the court to grant or refuse a stay, but what has to be judged in every case is whether there are or not particular circumstances in the case to make an order staying execution. It has been said that the court as a general rule ought to exercise its best discretion in a way so as to prevent the appeal if successful being nugatory.”
25. Consequently, it was submitted that the court should adopt a balanced approach. That, 50% of the decretal sum should be released to the Respondents and the balance be deposited in a joint interest earning account.
26. I have carefully considered the Application, Response and rival submissions, the issues for determination, in my view, are;
a) Whether the execution against the Applicant is lawful.
b) Whether the prayer for stay of execution should be granted.
Whether the execution against the Applicant is lawful.
27. The order from this court (Ong’udi J) issued on 06/08/2019 states: “That an order is hereby issued to give approval to the plaintiffs/applicants to continue the proceedings against the defendant in Makindu PMCC 536 of 2015 under the Insolvency Act.”
28. Section 560 (1) (d) of the Insolvency Act provides; “a person may begin or continue legal proceedings (including execution and distress) against the company or the company's property only with the consent of the administrator or with the approval of the Court.”
a. Consequently, a reading of the above provision is plain and clear that continuation of legal proceedings includes execution and distress. The leave granted by this court in 2019 was therefore sufficient. There was no need to seek additional leave for purposes of execution as the requisite leave had already been granted by court. This is in line with Ndahugah Holdings Ltd (supra) where the court stated that; “Execution proceedings are a continuation of the suit and are necessary to realize the fruits of a valid judgment.”
29. The execution against the Applicant is therefore lawful.
Whether stay of execution should be granted
30. According to Order 42 Rule 6 of the Civil Procedure Rules, the conditions which should guide the Court in determining whether to grant stay pending appeal are; whether substantial loss will occur if stay is not granted, whether the Application has been filed without unreasonable delay and furnishing security for the due performance of the decree.
31. Judgment by the trial court was delivered on 18/03/2025 and this Application was filed on 14/07/2025. Considering that the appeal was filed within the prescribed period, there was delay in filing the Application and it appears that the Applicant was jolted from slumber by the warrants of attachment and proclamation of goods in June 2025.
32. As for substantial loss, the Applicant is apprehensive that if the decretal amount is released to the Respondents, it may be hard to get a refund if the appeal succeeds. The decretal award at the time of attachment was kshs 2,159,997/= which, is substantial. On their part, the Respondents deponed that they are able to refund the amount as they are government employees. The information about the Respondents’ means is exclusive and peculiar to them hence without an affidavit of means, this court can only speculate about their ability to refund.
33. As for security, the grounds on the face of the Application indicate that the Applicant is willing to offer a cheque deposit while in the Supporting Affidavit, the Applicant proposes to provide a bank guarantee. It is common knowledge that bank guarantees are usually for a specific period and in this case, there is no information on whether the bank guarantee has lapsed or not. There is also no information on whether enforcing it would be problematic due to issues of privity of contract. In my view, the bank guarantee is not appropriate.
34. Be that as it may, the Court has a duty to balance the competing interests between the parties. While it is the Appellant’s right to pursue an appeal, the Respondents should also enjoy the fruits of winning the first round. However, from the Memorandum of Appeal it is evident that the applicant is contesting the awards on liability and quantum of damages
35. In the circumstances the interests of each need to be secured pending the hearing and determination of the appeal.
36. Hence , the application is allowed as follows; an order of stay of execution pending the hearing and determination of the appeal is granted on condition that the entire decretal sum is deposited in a joint interest earning account in the names of both Advocates on record within 45 days hereof, in default, the stay will lapse.
37. Costs to abide the appeal
Dated signed and delivered virtually (CTS) on 27 th March 2027
Mumbua T Matheka
Judge
Ruling HCCA E019 of 2025 Page 2 of 2