RULING
1. Before this Court is the Notice of Motion dated 9th July 2025, brought principally under sections 1A, 1B, 3A, 63(e), 79G, 89 and 95 of the Civil Procedure Act, Order 42 rule 6 and Order 51 rule 1 of the Civil Procedure Rules. The application seeks, among other orders, stay of further execution of the judgment and decree in Ogembo MCCC No. E057 of 2020 – Erick Omwenga Osinde v Timothy Ombati Mokua & Another, including the intended sale of motor vehicle registration number KDR 633N, and release of the said motor vehicle to the Applicant on running attachment pending hearing and determination of the application dated 26th May 2025.
2. The application is supported by the affidavit sworn by Timothy Ombati Mokua on 9th July 2025. The Applicant’s case is that on 10th June 2025, this Court granted interim stay of execution of the judgment and decree of the subordinate court pending hearing and determination of the application dated 26th May 2025. He states that although the order was granted on 10th June 2025, the extracted order was not signed and sealed until 8th July 2025, and that the delay in extraction and sealing of the order prevented timely service upon the Respondent.
3. The Applicant further deposes that while his advocates were still pursuing the signed and sealed order, the Respondent commenced execution proceedings in the subordinate court. He states that on or about 1st July 2025, motor vehicles registration numbers KBE 761H and KDR 633N were proclaimed, and that on 8th July 2025, motor vehicle registration number KDR 633N was attached by the auctioneer in execution of the decree. It is his position that the intended sale of the said motor vehicle, if allowed to proceed, would defeat the purpose of the interim stay order and render both the application dated 26th May 2025 and the intended appeal nugatory.
4. The Applicant contends that the execution was not occasioned by his own default, but by the delay in signing and sealing the orders of this Court. He further states that he is willing to provide security as the Court may direct.
5. The Respondent opposes the application through Grounds of Opposition dated 20th July 2025. The Respondent’s position is that the application is an abuse of the court process; that the Applicants have not provided security; that the interim orders of 10th June 2025 did not specify any security; and that release of the attached motor vehicle on running attachment is unsafe because the vehicle may be disposed of, moved outside the Court’s jurisdiction, or depreciate in value while in the Applicants’ possession.
6. The Respondent further argues that there are no substantive appellate proceedings currently active against the judgment and decree of the trial court; that execution lies as a matter of right; that the intended appeal is only on quantum, liability having been settled; and that even if the intended appeal succeeds, it is unlikely to result in a complete waiver of the decretal sum. The Respondent urges that if the Court is inclined to grant any relief, the Applicants should at least pay half of the warrants sum together with costs and auctioneer’s charges, and deposit the other half in a joint interest-earning account.
7. I have considered the application, the supporting affidavit, the annexures, the Grounds of Opposition, and the parties’ rival positions. In my view, the issue for determination at this stage is narrow: whether the Court should preserve the subject matter of the application dated 26th May 2025 by staying further execution and releasing motor vehicle registration number KDR 633N on running attachment, and if so, on what terms.
8. The applicable principles are settled. Under Order 42 rule 6 of the Civil Procedure Rules, an applicant seeking stay must demonstrate that substantial loss may result unless stay is granted, that the application has been made without unreasonable delay, and that such security as the Court may order has been given. The power to grant stay is discretionary, but the discretion must be exercised judicially and in a manner that balances the Applicant’s right to pursue an appeal or intended appeal against the Respondent’s right to enjoy the fruits of judgment.
9. On delay, I am satisfied that the present application was brought promptly. The Applicant’s evidence is that the vehicle was attached on 8th July 2025 and the present application was dated 9th July 2025 and filed shortly thereafter. In the circumstances, I do not find unreasonable delay in bringing the application.
10. On substantial loss, this is a monetary decree. Ordinarily, the fact of execution alone is not sufficient reason to grant stay. A successful litigant is entitled to enjoy the fruits of judgment. However, the facts of this matter are peculiar. The documents placed before the Court show that interim stay had been granted on 10th June 2025 pending the hearing and determination of the application dated 26th May 2025. The extracted order was signed and sealed on 8th July 2025. Before the order could be served in that form, execution had proceeded and motor vehicle registration number KDR 633N had been attached.
11. The respondent cannot be faulted for commencing execution before service of the signed and sealed order. There is no sufficient basis to find contempt or bad faith at this interlocutory stage. At the same time, the Court cannot ignore the existence of its earlier interim orders and the explanation given for the delay in extraction and service. The justice of the case requires that the subject matter be preserved pending determination of the application dated 26th May 2025.
12. I am also persuaded that if the motor vehicle is sold before the pending application is heard, the application dated 26th May 2025 may be rendered substantially academic, particularly because the intended appeal is said to challenge the quantum of damages. The proper order is therefore one that prevents the sale for the time being while securing the Respondent’s decree.
13. On security, the Respondent’s objection has merit. Provision of security is not a mere technicality under Order 42 Rule 6 of the Civil Procedure Rules . It is a substantive condition intended to protect the decree-holder. A running attachment without more is not adequate in this case, because the vehicle may depreciate, be moved, be damaged, or be disposed of.
14. The Court must also bear in mind that the intended appeal, according to the material placed before the Court, is on quantum and not liability. It would therefore be unjust to grant an unconditional stay that wholly shuts out the Respondent from the benefit of the decree without security.
15. In the result, I find that the Notice of Motion dated 9th July 2025 is merited only to the extent of preserving the subject matter pending determination of the application dated 26th May 2025. The relief shall be conditional. It is thus imperative that the applicant deposits security under order 42 Rule 6 of CPR . pending hearing of the application dated 26.5.25.
16. On 28.7.25 both counsel informed this court that the vehicle herein had been released on a running attachment .
ORDERS
17. The Notice of Motion dated 9th July 2025 is hereby allowed on the following terms:
a. Pending the hearing and determination of the Applicants’ application dated 26th May 2025, there shall be a stay of further execution of the judgment and decree in Ogembo MCCC No. E049 of 2020 – Agnes Nyaboke Omweno v Timothy Ombati Mokua & Another including the sale by public auction, private treaty, or any other mode, of motor vehicle registration number KDR 633N.
b. Prayer a. is allowed on condition that the Applicant shall, deposit the decretal sum Ogembo MCCC No. E057 of 2020 in court within thirty (30) days from today.
c. The lawful auctioneer’s charges, if any, arising from the attachment shall be agreed upon by the parties, within 14 days failure to which the same shall be assessed by the Deputy Registrar.
d. Incase of default execution to issue .
e. For avoidance of doubt, this ruling does not determine the merits of the application dated 26th May 2025.
f. Costs of the Notice of Motion dated 9th July 2025 to the respondent .
g. Mention on 29.6.26 before Hon . Justice Rotich for directions on hearing of the application dated 26.5.25
T.A ODERA
JUDGE
9.6.26
SIGNED & DELIVERED VIRTUALLY VIA TEAMS PLATFORM ON THIS 9TH DAY OF JUNE 2026 IN THE PRESENCE OF CA -KIPCHIRCHIR NO APPEARANCE FOR THE APPLICANT AND FOR THE RESPONDENT
1. Before this Court is the Notice of Motion dated 9th July 2025, brought principally under sections 1A, 1B, 3A, 63(e), 79G, 89 and 95 of the Civil Procedure Act, Order 42 rule 6 and Order 51 rule 1 of the Civil Procedure Rules. The application seeks, among other orders, stay of further execution of the judgment and decree in Ogembo MCCC No. E057 of 2020 – Erick Omwenga Osinde v Timothy Ombati Mokua & Another, including the intended sale of motor vehicle registration number KDR 633N, and release of the said motor vehicle to the Applicant on running attachment pending hearing and determination of the application dated 26th May 2025.
2. The application is supported by the affidavit sworn by Timothy Ombati Mokua on 9th July 2025. The Applicant’s case is that on 10th June 2025, this Court granted interim stay of execution of the judgment and decree of the subordinate court pending hearing and determination of the application dated 26th May 2025. He states that although the order was granted on 10th June 2025, the extracted order was not signed and sealed until 8th July 2025, and that the delay in extraction and sealing of the order prevented timely service upon the Respondent.
3. The Applicant further deposes that while his advocates were still pursuing the signed and sealed order, the Respondent commenced execution proceedings in the subordinate court. He states that on or about 1st July 2025, motor vehicles registration numbers KBE 761H and KDR 633N were proclaimed, and that on 8th July 2025, motor vehicle registration number KDR 633N was attached by the auctioneer in execution of the decree. It is his position that the intended sale of the said motor vehicle, if allowed to proceed, would defeat the purpose of the interim stay order and render both the application dated 26th May 2025 and the intended appeal nugatory.
4. The Applicant contends that the execution was not occasioned by his own default, but by the delay in signing and sealing the orders of this Court. He further states that he is willing to provide security as the Court may direct.
5. The Respondent opposes the application through Grounds of Opposition dated 20th July 2025. The Respondent’s position is that the application is an abuse of the court process; that the Applicants have not provided security; that the interim orders of 10th June 2025 did not specify any security; and that release of the attached motor vehicle on running attachment is unsafe because the vehicle may be disposed of, moved outside the Court’s jurisdiction, or depreciate in value while in the Applicants’ possession.
6. The Respondent further argues that there are no substantive appellate proceedings currently active against the judgment and decree of the trial court; that execution lies as a matter of right; that the intended appeal is only on quantum, liability having been settled; and that even if the intended appeal succeeds, it is unlikely to result in a complete waiver of the decretal sum. The Respondent urges that if the Court is inclined to grant any relief, the Applicants should at least pay half of the warrants sum together with costs and auctioneer’s charges, and deposit the other half in a joint interest-earning account.
7. I have considered the application, the supporting affidavit, the annexures, the Grounds of Opposition, and the parties’ rival positions. In my view, the issue for determination at this stage is narrow: whether the Court should preserve the subject matter of the application dated 26th May 2025 by staying further execution and releasing motor vehicle registration number KDR 633N on running attachment, and if so, on what terms.
8. The applicable principles are settled. Under Order 42 rule 6 of the Civil Procedure Rules, an applicant seeking stay must demonstrate that substantial loss may result unless stay is granted, that the application has been made without unreasonable delay, and that such security as the Court may order has been given. The power to grant stay is discretionary, but the discretion must be exercised judicially and in a manner that balances the Applicant’s right to pursue an appeal or intended appeal against the Respondent’s right to enjoy the fruits of judgment.
9. On delay, I am satisfied that the present application was brought promptly. The Applicant’s evidence is that the vehicle was attached on 8th July 2025 and the present application was dated 9th July 2025 and filed shortly thereafter. In the circumstances, I do not find unreasonable delay in bringing the application.
10. On substantial loss, this is a monetary decree. Ordinarily, the fact of execution alone is not sufficient reason to grant stay. A successful litigant is entitled to enjoy the fruits of judgment. However, the facts of this matter are peculiar. The documents placed before the Court show that interim stay had been granted on 10th June 2025 pending the hearing and determination of the application dated 26th May 2025. The extracted order was signed and sealed on 8th July 2025. Before the order could be served in that form, execution had proceeded and motor vehicle registration number KDR 633N had been attached.
11. The respondent cannot be faulted for commencing execution before service of the signed and sealed order. There is no sufficient basis to find contempt or bad faith at this interlocutory stage. At the same time, the Court cannot ignore the existence of its earlier interim orders and the explanation given for the delay in extraction and service. The justice of the case requires that the subject matter be preserved pending determination of the application dated 26th May 2025.
12. I am also persuaded that if the motor vehicle is sold before the pending application is heard, the application dated 26th May 2025 may be rendered substantially academic, particularly because the intended appeal is said to challenge the quantum of damages. The proper order is therefore one that prevents the sale for the time being while securing the Respondent’s decree.
13. On security, the Respondent’s objection has merit. Provision of security is not a mere technicality under Order 42 Rule 6 of the Civil Procedure Rules . It is a substantive condition intended to protect the decree-holder. A running attachment without more is not adequate in this case, because the vehicle may depreciate, be moved, be damaged, or be disposed of.
14. The Court must also bear in mind that the intended appeal, according to the material placed before the Court, is on quantum and not liability. It would therefore be unjust to grant an unconditional stay that wholly shuts out the Respondent from the benefit of the decree without security.
15. In the result, I find that the Notice of Motion dated 9th July 2025 is merited only to the extent of preserving the subject matter pending determination of the application dated 26th May 2025. The relief shall be conditional. It is thus imperative that the applicant deposits security under order 42 Rule 6 of CPR . pending hearing of the application dated 26.5.25.
16. On 28.7.25 both counsel informed this court that the vehicle herein had been released on a running attachment .
ORDERS
17. The Notice of Motion dated 9th July 2025 is hereby allowed on the following terms:
a. Pending the hearing and determination of the Applicants’ application dated 26th May 2025, there shall be a stay of further execution of the judgment and decree in Ogembo MCCC No. E049 of 2020 – Agnes Nyaboke Omweno v Timothy Ombati Mokua & Another including the sale by public auction, private treaty, or any other mode, of motor vehicle registration number KDR 633N.
b. Prayer a. is allowed on condition that the Applicant shall, deposit the decretal sum Ogembo MCCC No. E057 of 2020 in court within thirty (30) days from today.
c. The lawful auctioneer’s charges, if any, arising from the attachment shall be agreed upon by the parties, within 14 days failure to which the same shall be assessed by the Deputy Registrar.
d. Incase of default execution to issue .
e. For avoidance of doubt, this ruling does not determine the merits of the application dated 26th May 2025.
f. Costs of the Notice of Motion dated 9th July 2025 to the respondent .
g. Mention on 29.6.26 before Hon . Justice Rotich for directions on hearing of the application dated 26.5.25
T.A ODERA
JUDGE
9.6.26
SIGNED & DELIVERED VIRTUALLY VIA TEAMS PLATFORM ON THIS 9TH DAY OF JUNE 2026 IN THE PRESENCE OF CA -KIPCHIRCHIR NO APPEARANCE FOR THE APPLICANT AND FOR THE RESPONDENT