1 INTRODUCTION
Before this Court is the Notice of Motion dated 18th March 2026 brought by the Appellant seeking the following orders:
1. That this matter be certified urgent.
2. That this Honourable Court be pleased to grant an interim order of stay of execution of the Ruling and Orders delivered on 12th March 2026 in Mombasa Small Claims Court SCCCOMM No. E110 of 2025 pending the inter partes hearing of the application.
3. That this Honourable Court be pleased to grant an order of stay of execution of the said Ruling and all consequential orders, including the order directing the unconditional release of Motor Vehicle Registration Number KDE 701X, pending the hearing and determination of the application.
4. That this Honourable Court be pleased to issue an order staying, suspending and/or restraining the enforcement and execution of the extracted order for the release of Motor Vehicle Registration Number KDE 701X pending the hearing and determination of the intended appeal.
5. That pending the hearing and determination of the appeal, this Honourable Court be pleased to grant a stay of execution of the Ruling and Orders delivered on 12th March 2026.
6. That the costs of the application be provided for.
7. BACKGROUND
The application is supported by the affidavit sworn by the Appellant on 18th March 2026.
The Appellant depones that the dispute arises from proceedings instituted in Mombasa Small Claims Court SCCCOMM No. E110 of 2025 wherein he sought recovery of monies arising from a transaction involving Motor Vehicle Registration Number KBY 838H, a Toyota Noah, purchased from the 1st Respondent.
The Appellant avers that after purchasing the vehicle, he entrusted it to his mother for purposes of generating income through small-scale business operations. He states that the 1st Respondent subsequently approached his mother and, through false representations, induced her to surrender possession of the vehicle. It later emerged that the vehicle had been used as security for a loan facility advanced by the 2nd Respondent.
The Appellant further states that despite numerous demands, the 1st Respondent failed to complete the transfer process or avail the logbook. He contends that the 1st Respondent admitted before the trial court that he was indebted to him and even proposed a structured payment plan.
Being the decree-holder in the Small Claims Court matter, the Appellant commenced execution proceedings by instructing the 3rd Respondent and obtaining warrants of attachment and sale. Consequently, the motor vehicle was proclaimed, advertised in the Star Newspaper, and subsequently sold by public auction. The Appellant states that he received the proceeds of the sale and utilized them approximately six months before the filing of the present application.
He further avers that the proclamations were undertaken on 23rd April 2025 and 18th July 2025 and that by then no objection proceedings had been instituted by the 2nd Respondent. According to the Appellant, the objection proceedings that culminated in the ruling of 12th March 2026 were belated and amounted to an afterthought.
The Appellant faults the ruling of the trial court for ordering the unconditional release of the motor vehicle without adequately addressing the legal consequences of the completed auction sale. He further contends that the trial court failed to require security before directing the release of the vehicle. He argues that unless a stay is granted, he will suffer substantial loss as he has already utilized the auction proceeds and may be exposed to financial liability.
3. RESPONSE BY THE 2ND RESPONDENT
The application is opposed.
Philip Gitau, the Credit Manager of the 2nd Respondent, swore a Replying Affidavit on 14th April 2026. He deposed that the 2nd Respondent had filed objection proceedings on 29th January 2026 and that the trial court found in its favour, resulting in an order issued on 12th March 2026 directing the immediate and unconditional release of the motor vehicle.
He initially averred that the vehicle had already been released to the 1st Respondent and that the present application had therefore been overtaken by events. He further stated that the vehicle was jointly registered in the names of the 1st and 2nd Respondents and that continued detention of the vehicle would subject it to depreciation and unnecessary wear and tear.
However, in a Supplementary Affidavit sworn on 15th April 2026, Mr. Gitau clarified that he had subsequently established that the vehicle had not in fact been released from the auctioneer’s yard. Nevertheless, he maintained that the Appellant had failed to satisfy the legal threshold for the grant of stay pending appeal.
4. ISSUES FOR DETERMINATION
Having considered the application, affidavits, annexures, and submissions by the parties, the Court is of the view that the following issues arise for determination:
a. Whether the Appellant has satisfied the requirements for the grant of stay of execution pending appeal.
b. Who should bear the costs of the application.
5. ANALYSIS AND DETERMINATION
The application is brought pursuant to 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.”
The principles governing the grant of stay of execution pending appeal are now well settled. In James Wangalwa & Another v Agnes Naliaka Cheseto [2012] eKLR, the Court stated that the grant of stay is discretionary and that the burden rests upon the applicant to establish sufficient cause for the exercise of that discretion in his favour.
The first requirement is proof of substantial loss.
The Appellant contends that unless stay is granted, he stands to suffer substantial loss because he has already received and utilized the proceeds of the auction sale. He further argues that the validity of the objection proceedings and the resultant ruling are matters that merit interrogation on appeal.
The Respondents, on the other hand, contend that no substantial loss has been demonstrated.
The Court has carefully considered the rival positions. In Mukuma v Abuoga [1988] KLR 645, the Court of Appeal held:
“The issue of substantial loss is the cornerstone of both jurisdictions. Substantial loss is what has to be prevented by preserving the status quo because such loss would render the appeal nugatory.”
The Court also takes cognizance of the Appellant’s contention that the motor vehicle had already been attached, advertised, and sold by public auction pursuant to lawful warrants of attachment and sale. According to the Appellant, the proceeds of the sale were received and utilized long before the objection proceedings were determined.
Without making definitive findings on the merits of the appeal, this Court notes that one of the central questions raised in the intended appeal concerns the legal effect of the objection proceedings vis-à-vis an execution process that had allegedly culminated in a completed auction sale. The Appellant contends that the trial court failed to adequately address the consequences of the completed sale before ordering the unconditional release of the motor vehicle.
In the Court’s view, this issue is neither frivolous nor peripheral. It goes to the very substratum of the appeal and raises an arguable question as to whether rights may have accrued upon completion of the auction process and whether those rights were properly considered in the impugned ruling.
If the motor vehicle is released and subsequently transferred, disposed of, or otherwise alienated before the appeal is heard and determined, the Court may be confronted with a situation where restoration of the status quo becomes impracticable or impossible. Such a development may render the appeal nugatory and occasion prejudice to whichever party ultimately succeeds.
The Court is therefore satisfied that the Appellant has demonstrated substantial loss sufficient to justify preservation of the subject matter pending appeal.
With regard to delay, the impugned ruling was delivered on 12th March 2026 while the present application was filed on 18th March 2026. The Court is satisfied that the application was brought expeditiously and without unreasonable delay.
As regards security, the Court is empowered to fashion appropriate orders that balance the competing interests of the parties while preserving the subject matter of the dispute. In view of the circumstances of this case, and considering that the motor vehicle remains available and has not yet been released, the Court finds it appropriate to preserve the same pending the hearing and determination of the appeal.
6. DISPOSITION
Accordingly, the Notice of Motion dated 18th March 2026 is merited and is hereby allowed on the following terms:
a. There shall be a stay of execution of the Ruling and Orders delivered on 12th March 2026 in Mombasa Small Claims Court SCCCOMM No. E110 of 2025 pending the hearing and determination of the appeal.
b. Motor Vehicle Registration Number KDE 701X shall be preserved and shall remain secured at Central Police Station, Mombasa, pending the hearing and determination of the appeal or until further orders of this Court.
c. For the avoidance of doubt, the order preserving Motor Vehicle Registration Number KDE 701X is intended solely to maintain the status quo pending appeal and shall not be construed as a determination of ownership rights or proprietary interests claimed by any of the parties.
d. The appeal shall be fast-tracked and to this end the matter shall be mentioned before the Deputy Registrar on 9.6. 2026
e. The parties shall strictly comply with all timelines issued by the Court, and no unnecessary adjournments shall be entertained.
f. Costs of the application shall abide by the outcome of the appeal.
It is so ordered.
DATED, SIGNED AND DELIVERED AT MOMBASA THIS ..3rd...... DAY OF .....June............. 2026.
HON. LADY JUSTICE W. K. MICHENI
JUDGE
In the Presence of:
Bebora – Court Assistant
No appearance by either side
Before this Court is the Notice of Motion dated 18th March 2026 brought by the Appellant seeking the following orders:
1. That this matter be certified urgent.
2. That this Honourable Court be pleased to grant an interim order of stay of execution of the Ruling and Orders delivered on 12th March 2026 in Mombasa Small Claims Court SCCCOMM No. E110 of 2025 pending the inter partes hearing of the application.
3. That this Honourable Court be pleased to grant an order of stay of execution of the said Ruling and all consequential orders, including the order directing the unconditional release of Motor Vehicle Registration Number KDE 701X, pending the hearing and determination of the application.
4. That this Honourable Court be pleased to issue an order staying, suspending and/or restraining the enforcement and execution of the extracted order for the release of Motor Vehicle Registration Number KDE 701X pending the hearing and determination of the intended appeal.
5. That pending the hearing and determination of the appeal, this Honourable Court be pleased to grant a stay of execution of the Ruling and Orders delivered on 12th March 2026.
6. That the costs of the application be provided for.
7. BACKGROUND
The application is supported by the affidavit sworn by the Appellant on 18th March 2026.
The Appellant depones that the dispute arises from proceedings instituted in Mombasa Small Claims Court SCCCOMM No. E110 of 2025 wherein he sought recovery of monies arising from a transaction involving Motor Vehicle Registration Number KBY 838H, a Toyota Noah, purchased from the 1st Respondent.
The Appellant avers that after purchasing the vehicle, he entrusted it to his mother for purposes of generating income through small-scale business operations. He states that the 1st Respondent subsequently approached his mother and, through false representations, induced her to surrender possession of the vehicle. It later emerged that the vehicle had been used as security for a loan facility advanced by the 2nd Respondent.
The Appellant further states that despite numerous demands, the 1st Respondent failed to complete the transfer process or avail the logbook. He contends that the 1st Respondent admitted before the trial court that he was indebted to him and even proposed a structured payment plan.
Being the decree-holder in the Small Claims Court matter, the Appellant commenced execution proceedings by instructing the 3rd Respondent and obtaining warrants of attachment and sale. Consequently, the motor vehicle was proclaimed, advertised in the Star Newspaper, and subsequently sold by public auction. The Appellant states that he received the proceeds of the sale and utilized them approximately six months before the filing of the present application.
He further avers that the proclamations were undertaken on 23rd April 2025 and 18th July 2025 and that by then no objection proceedings had been instituted by the 2nd Respondent. According to the Appellant, the objection proceedings that culminated in the ruling of 12th March 2026 were belated and amounted to an afterthought.
The Appellant faults the ruling of the trial court for ordering the unconditional release of the motor vehicle without adequately addressing the legal consequences of the completed auction sale. He further contends that the trial court failed to require security before directing the release of the vehicle. He argues that unless a stay is granted, he will suffer substantial loss as he has already utilized the auction proceeds and may be exposed to financial liability.
3. RESPONSE BY THE 2ND RESPONDENT
The application is opposed.
Philip Gitau, the Credit Manager of the 2nd Respondent, swore a Replying Affidavit on 14th April 2026. He deposed that the 2nd Respondent had filed objection proceedings on 29th January 2026 and that the trial court found in its favour, resulting in an order issued on 12th March 2026 directing the immediate and unconditional release of the motor vehicle.
He initially averred that the vehicle had already been released to the 1st Respondent and that the present application had therefore been overtaken by events. He further stated that the vehicle was jointly registered in the names of the 1st and 2nd Respondents and that continued detention of the vehicle would subject it to depreciation and unnecessary wear and tear.
However, in a Supplementary Affidavit sworn on 15th April 2026, Mr. Gitau clarified that he had subsequently established that the vehicle had not in fact been released from the auctioneer’s yard. Nevertheless, he maintained that the Appellant had failed to satisfy the legal threshold for the grant of stay pending appeal.
4. ISSUES FOR DETERMINATION
Having considered the application, affidavits, annexures, and submissions by the parties, the Court is of the view that the following issues arise for determination:
a. Whether the Appellant has satisfied the requirements for the grant of stay of execution pending appeal.
b. Who should bear the costs of the application.
5. ANALYSIS AND DETERMINATION
The application is brought pursuant to 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.”
The principles governing the grant of stay of execution pending appeal are now well settled. In James Wangalwa & Another v Agnes Naliaka Cheseto [2012] eKLR, the Court stated that the grant of stay is discretionary and that the burden rests upon the applicant to establish sufficient cause for the exercise of that discretion in his favour.
The first requirement is proof of substantial loss.
The Appellant contends that unless stay is granted, he stands to suffer substantial loss because he has already received and utilized the proceeds of the auction sale. He further argues that the validity of the objection proceedings and the resultant ruling are matters that merit interrogation on appeal.
The Respondents, on the other hand, contend that no substantial loss has been demonstrated.
The Court has carefully considered the rival positions. In Mukuma v Abuoga [1988] KLR 645, the Court of Appeal held:
“The issue of substantial loss is the cornerstone of both jurisdictions. Substantial loss is what has to be prevented by preserving the status quo because such loss would render the appeal nugatory.”
The Court also takes cognizance of the Appellant’s contention that the motor vehicle had already been attached, advertised, and sold by public auction pursuant to lawful warrants of attachment and sale. According to the Appellant, the proceeds of the sale were received and utilized long before the objection proceedings were determined.
Without making definitive findings on the merits of the appeal, this Court notes that one of the central questions raised in the intended appeal concerns the legal effect of the objection proceedings vis-à-vis an execution process that had allegedly culminated in a completed auction sale. The Appellant contends that the trial court failed to adequately address the consequences of the completed sale before ordering the unconditional release of the motor vehicle.
In the Court’s view, this issue is neither frivolous nor peripheral. It goes to the very substratum of the appeal and raises an arguable question as to whether rights may have accrued upon completion of the auction process and whether those rights were properly considered in the impugned ruling.
If the motor vehicle is released and subsequently transferred, disposed of, or otherwise alienated before the appeal is heard and determined, the Court may be confronted with a situation where restoration of the status quo becomes impracticable or impossible. Such a development may render the appeal nugatory and occasion prejudice to whichever party ultimately succeeds.
The Court is therefore satisfied that the Appellant has demonstrated substantial loss sufficient to justify preservation of the subject matter pending appeal.
With regard to delay, the impugned ruling was delivered on 12th March 2026 while the present application was filed on 18th March 2026. The Court is satisfied that the application was brought expeditiously and without unreasonable delay.
As regards security, the Court is empowered to fashion appropriate orders that balance the competing interests of the parties while preserving the subject matter of the dispute. In view of the circumstances of this case, and considering that the motor vehicle remains available and has not yet been released, the Court finds it appropriate to preserve the same pending the hearing and determination of the appeal.
6. DISPOSITION
Accordingly, the Notice of Motion dated 18th March 2026 is merited and is hereby allowed on the following terms:
a. There shall be a stay of execution of the Ruling and Orders delivered on 12th March 2026 in Mombasa Small Claims Court SCCCOMM No. E110 of 2025 pending the hearing and determination of the appeal.
b. Motor Vehicle Registration Number KDE 701X shall be preserved and shall remain secured at Central Police Station, Mombasa, pending the hearing and determination of the appeal or until further orders of this Court.
c. For the avoidance of doubt, the order preserving Motor Vehicle Registration Number KDE 701X is intended solely to maintain the status quo pending appeal and shall not be construed as a determination of ownership rights or proprietary interests claimed by any of the parties.
d. The appeal shall be fast-tracked and to this end the matter shall be mentioned before the Deputy Registrar on 9.6. 2026
e. The parties shall strictly comply with all timelines issued by the Court, and no unnecessary adjournments shall be entertained.
f. Costs of the application shall abide by the outcome of the appeal.
It is so ordered.
DATED, SIGNED AND DELIVERED AT MOMBASA THIS ..3rd...... DAY OF .....June............. 2026.
HON. LADY JUSTICE W. K. MICHENI
JUDGE
In the Presence of:
Bebora – Court Assistant
No appearance by either side