A. Introduction
1. Before me is a Notice of Motion dated 4 th November, 2025, by the applicant and a Notice of Preliminary Objection dated 11 th November, 2025 by the Respondent. The application is brought under Sections 1A, 1B, 3A & 63(e) of the Civil Procedure Act, Order 42 Rule 6 and Order 51 Rule 1 of the Civil Procedure Rules for ORDERS:
a. Spent
b. Spent
c. THAT pending the hearing and determination of the Applicant’s application dated 28 th October, 2025 currently pending before the trial court, there be a temporary stay of execution of the decree dated 18 th July 2025 and the Warrants of Attachment issued on 27 th October 2025, together with all consequential proceedings in Mombasa CMCC No. 2139 of 2014.
d. THAT in the alternative, this Honourable Court be pleased to grant a temporary stay of execution of the decree dated 18 th July 2025 and the Warrants of Attachment issued on 27 th October 2025, pending the hearing and determination of this Appeal arising from the ruling delivered on 24 th October 2025.
e. THAT costs of this Application be in the cause.
2. The application is propped by the grounds on its face and two (2) affidavits sworn on 4 th November, 2025 and 8 th December, 2025 by one Nuuhu Ngoma Gyaza, the Head Accountant of the Appellant/Applicant Company and with personal knowledge of the events that have preceded the filing of the Application presented herewith.
3. Consequently, in opposition of the application herein and the appeal in entirety the respondent raised a Preliminary Objection, summarily on grounds that:
a. The appeal and the Notice of Motion dated 4 th November, 2025 are both incompetent, defective, frivolous, vexatious, scandalous, fatally incurable and an abuse of the court process.
b. The appellant has filed three (3) other similar and/or identical applications at the Chief Magistrate Court, which one (1) was heard and dismissed with costs and the other two (2) are still pending, therefore the same is barred by res judicata and this court has no jurisdiction to entertain the same.
c. The applicant’s counsel has no locus standi and is in violation of mandatory provisions of law and procedure.
d. That, in light of the admission made by the applicant at para. 5 of the supporting affidavit of this Motion, the same violates the provision of Sec 1A and 1B of the CPA, CAP 21 Laws of Kenya and should be dismissed.
B. Applicant’s case
4. He deposed that the Appellant does not intend to appeal against the trial court’s Judgment but merely seeks rectification of the erroneous decree dated 18 th July 2025 in the sum of Kshs. 2,295,490, which the appellant contends is irregular and materially defective, having inflated interests from Kshs.54,443.83 to Kshs.216,000 and exaggerated the costs from Kshs.120,000 to Kshs. 135,000, contrary to the Advocates (Remuneration) Order and without any lawful basis.
5. Further, that despite the applicant’s readiness to settle the decree the respondent through her agents/auctioneers proceeded to attach and sell the applicants Motor Vehicle KDC 533B (Mercedes Benz Prime Mover) and Trailer ZE 2791, valued at kshs.4,000,000/- at gross undervalue on 16 th August, 2025.
6. As a consequence, the applicant moved the trial court through an application dated 24 th September 2025 seeking to nullify the unlawful sale and preserve the subject matter, but the same was dismissed on a technicality. Consequently, the Applicant returned to the trial court with further applications, filed on 28 th October 2025, before any fresh proclamation had been issued, and a second filed on 30 th October 2025, immediately after the Respondent’s auctioneer issued a new Proclamation of Attachment on the same date, but the trial court declined to certify either application as urgent and instead allocated a mention date, a decision that effectively denied the Applicant timely judicial protection despite the clear and imminent risk of attachment.
C. Respondent’s case
7. The Respondent vide two(2) Replying Affidavits sworn on 25 th November, 2025 and 11 th December, 2025 has opposed the application on grounds that the applicant is litigating the same issues both at the High Court and Mombasa Chief Magistrate Court which amounts to a fishing expedition.
8. That, on the contrary the costs in the suit in Mombasa Chief Magistrate Court No. 2319 of 2014 Claudine Mugabekazi vs Yalfa Cargi Handling Ltd & others was agreed by the both counsels for the parties herein, and all legal procedures pertaining to the execution of the decree were complied with to wit the applicant never preferred an appeal against the judgment and decree thereof.
9. That, as a consequence the respondent proceeded with lawful execution and proclaimed and auctioned the said Motor Vehicle KDC 533B (Mercedes Benz Prime Mover) and Trailer ZE 2791 to the highest bidder at kshs.1,500,000/-. Thereafter, the trial court re-issued warrants of attachment against the applicant’s movable properties after the applicant’s application for stay was dismissed, which dismissal is preceded the present appeal.
D. Written submissions
10. The applicant in its submissions dated 27 th November, 2025 dated 8 th December, 2025 simply reiterated its grounds to sustain its application and thereby relied persuasively on the authorities in Equity Bank Ltd v Taiga Adams Company Ltd [2006] eKLR, Nairobi Women’s Hospital v Purity Kemunto [2018] eKLR , Equity Bank Limited v West Link Mbo Limited [2013] KECA 320 (KLR) to the end that the Applicant has satisfied every statutory and judicially established requirement for grant of stay pending appeal.
11. Further, it was the applicant’s contention that Respondent’s Preliminary Objection is misconceived as it does not raise any pure point of law but introduces factual disputes requiring evidence which is contrary to the case of Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd [1969] EA 696.
12. The respondent in her submissions dated 26 th November, 2025 equally reiterated her opposition to the application to the end that the same is a replica of what is pending before the trial court and these proceedings are tantamount to forum shopping therefore this court lacks the jurisdiction to entertain the same. Reliance was placed on the authority in Samuel Macharia & another vs Kenya Commercial Bank Ltd. & 2 other (2012)eklr, Owners of Motor Vessel “Lillian S” vs Caltex Oil Kenya Ltd (1989)eklr.
E. Analysis and Determination
13. The twin issues for determination are whether the respondent’s preliminary objection is warranted and whether the applicant has met the threshold for a stay of execution pending the hearing and determination of the appeal. Noting the consequent effect of the preliminary objection to the application and appeal in entirety, this court shall dispense with the same on priority.
• Whether the respondent’s preliminary objection is warranted?
14. The locus classicus on preliminary objections is the dictum of Law J.A in Mukisa Biscuit Manufacturers Ltd Vs Westend Distributors Ltd ( 1969) EA 696.
"...so far as I am aware, a preliminary objection consists of a pure point of law which has been pleaded, or which arises by clear implication out of pleadings, and which if argued as a preliminary objection may dispose of the suit. Examples are an objection to the jurisdiction of the court, or a plea of limitation, or a submission that the parties are bound by the contract giving rise to the suit, to refer the dispute to arbitration."
15. The Supreme Court of Kenya cited with approval the position on preliminary objections emphasized by the Court in the case of Hassan Nyanje Charo Vs Khatib Mwashetani & 3 Others, Civil Application No. 23 of 2014, [2014] e KLR; and in Aviation & Allied Workers Union Kenya Vs Kenya Airways Ltd & 3 Others, Application No. 50 of 2014, [2015] eKLR that :
“Thus, a preliminary objection may only be raised on a ‘pure question of law’. To discern such a point of law, the Court has to be satisfied that there is no proper contest as to the facts . The facts are deemed agreed, as they are prima facie presented in the pleadings on record.”
16. It is abundantly clear from the body of decisions cited above, that preliminary objections must confine themselves to pure points of law. In the instant the objection, the same is raised on two (2) limbs. First, that the instant application and appeal is incompetent, defective, frivolous, vexatious, scandalous, fatally incurable and an abuse of the court process. Secondly, that that the application is res judicata.
17. Respectfully, as to the first limb, this court shall not belabour much in interrogating the allegations that the appeal/application is frivolous, vexatious and an abuse of the court process as the same are questions of fact and do not necessarily raise a pure point of law. Simply put, the grounds raised clearly traverse beyond the ambits and prerogative of a preliminary objection by raising questions of fact.
18. As to the second limb Section 7 of the Civil Procedure Act, cap 21 Laws of Kenya provides for the doctrine of res judicata as a bar for the court to determine a subsequent similar suit in the following terms;
No court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such court
19. The Supreme Court stated the purpose of the doctrine of res judicata in the case of John Florence Maritime Services Ltd & Another vs Cabinet Secretary for Transport and Infrastructure & 3 Others (2021)eKLR para 54 as follows;
“The doctrine of Res judicata in effect, allows a litigant only one bite at the cherry. It prevents a litigant or persons claiming under the same title, from returning to court to claim further reliefs not claimed in the earlier actions. It is a doctrine that serves the cause of order and efficacy in the adjudication process. The doctrine prevents a multiplicity of suits, which would ordinarily clog the courts, apart from occasioning unnecessary costs to the parties; and it ensures that litigation comes to an end, and the verdict duly translates into fruit for one party, and liability for another party, conclusively.”
20. I have considered the respondent’s argument on the instant application being res judicata and the same is simply misguided. This court in associating itself with the sentiments by the Supreme Court above, the doctrine of res judicata is a statutory preclusion of re-litigation and multiplicity of suits where the issues raised have long been heard and determined with finality. Such is not the case herein. The applicant approached this court as an appellate forum having been aggrieved by the decision of the trial court. In as much as the trial court’s competence is undoubted, the same is not an appellate court. The avenue and reprieve of an appeal cannot be ousted under the doctrine of res judicata. Accordingly, the preliminary objection fails.
• Whether the applicant has met the threshold for a stay of execution pending the hearing and determination of the appeal?
21. As regards stay of execution pending appeal, Order 42 Rule 6(2) of the Civil Procedure Rules requires of the applicant to prove the substantial loss it stands to suffer should order of stay not issue. Sufficient cause being a technical as well as legal requirement will depend entirely on the Applicant satisfying the court that:
a) Substantial loss may result to the applicant unless the order is made,
b) The application has been made without unreasonable delay, and
c) Such security as the court orders for the due performance of the decree or order as may ultimately be binding on the applicant has been given by the applicant.
22. No doubt, in law, the fact that the process of execution has been put in motion, or is likely to be put in motion, by itself, does not amount to substantial loss. Even when execution has been levied and completed, that is to say, the attached properties have been sold, as is the case here, does not in itself amount to substantial loss under Order 42 Rule 6 of the CPR . This is so because execution is a lawful process.
23. In this instance, the appellant/applicant does not contest the Judgment dated 17 th April 2025 by the trial court. On the contrary they have even expressed their willingness to settle the decretal sum but their sole grievance as couched in their Memorandum of Appeal has been the unlawful execution founded on an erroneous decree and the gross undervaluation of its assets. The same was contested in their application 24 th September 2025 seeking stay of execution and proper accounts and valuations, but the application was dismissed on 24 th October 2025 on a mere technicality, which being aggrieved they have appealed herein.
24. It is not in dispute that from the alleged erroneous decree dated 18 th July 2025, of the decretal sum of Kshs.2,295,490/= the respondent proceeded with lawful execution and proclaimed and auctioned the applicant’s property for kshs.1,500,000/-. After considering all the rival arguments herein, I am of the view that substantial loss would befall the Applicants if another execution is levied at this stage, noting that despite its willingness to settle the decretal sum, the very tabulations of the decree have been impugned.
25. The fact that an execution has already been levied on the Applicants makes it undesirable that further execution should be levied when an appeal, which I believe is not frivolous, is pending before the court. The right of appeal is a constitutional right that actualizes the right to access to justice, protection and benefit of the law, whose essential substance, encapsulates that the appeal should not be rendered nugatory, for anything that renders the appeal nugatory impinges on the very right of appeal. See JAMES WANGALWA & ANOTHER V AGNES NALIAKA CHESETO[2012]eKLR.
26. For what is worth the present appeal was timeously been instituted. Therefore, it is only prudent that interests of both parties herein be balanced to the effect that neither would invariably prejudiced.
27. 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.
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.”
28. Therefore, in balancing the interests of the appellant who pursues an opportunity to be heard on the merits of its case and that of the respondent decree holder who seeks to benefit from the fruits of her judgment and take care to protect the appellant from irreparable loss in the event of a successful appeal, the court shall make an order the appellant shall deposit in court a Bank Guarantee from a reputable bank for the balance of the decretal sum both within (14) fourteen days. In default, lawful execution shall issue.
F. Disposition
29. Accordingly, I find that the application dated 4 th November, 2025 is meritorious to the extent held hereinabove and the same is allowed as follows:
a. Stay of execution of the decree dated 18 th July 2025 and the Warrants of Attachment issued on 27 th October 2025, together with all consequential proceedings in Mombasa CMCC No. 2139 of 2014 pending the hearing and determination of this appeal, subject strictly to the deposit in court of a bank guarantee from a reputable bank for the balance of the decretal sum, within 14 days hereafter.
b. In default, order for stay of execution to lapse and execution to issue.
Orders accordingly.
DATED, SIGNED and DELIVERED at MOMBASA Virtually this…17TH…...day of…...DECEMBER………2025.
W. K. MICHENI
JUDGE
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1. Before me is a Notice of Motion dated 4 th November, 2025, by the applicant and a Notice of Preliminary Objection dated 11 th November, 2025 by the Respondent. The application is brought under Sections 1A, 1B, 3A & 63(e) of the Civil Procedure Act, Order 42 Rule 6 and Order 51 Rule 1 of the Civil Procedure Rules for ORDERS:
a. Spent
b. Spent
c. THAT pending the hearing and determination of the Applicant’s application dated 28 th October, 2025 currently pending before the trial court, there be a temporary stay of execution of the decree dated 18 th July 2025 and the Warrants of Attachment issued on 27 th October 2025, together with all consequential proceedings in Mombasa CMCC No. 2139 of 2014.
d. THAT in the alternative, this Honourable Court be pleased to grant a temporary stay of execution of the decree dated 18 th July 2025 and the Warrants of Attachment issued on 27 th October 2025, pending the hearing and determination of this Appeal arising from the ruling delivered on 24 th October 2025.
e. THAT costs of this Application be in the cause.
2. The application is propped by the grounds on its face and two (2) affidavits sworn on 4 th November, 2025 and 8 th December, 2025 by one Nuuhu Ngoma Gyaza, the Head Accountant of the Appellant/Applicant Company and with personal knowledge of the events that have preceded the filing of the Application presented herewith.
3. Consequently, in opposition of the application herein and the appeal in entirety the respondent raised a Preliminary Objection, summarily on grounds that:
a. The appeal and the Notice of Motion dated 4 th November, 2025 are both incompetent, defective, frivolous, vexatious, scandalous, fatally incurable and an abuse of the court process.
b. The appellant has filed three (3) other similar and/or identical applications at the Chief Magistrate Court, which one (1) was heard and dismissed with costs and the other two (2) are still pending, therefore the same is barred by res judicata and this court has no jurisdiction to entertain the same.
c. The applicant’s counsel has no locus standi and is in violation of mandatory provisions of law and procedure.
d. That, in light of the admission made by the applicant at para. 5 of the supporting affidavit of this Motion, the same violates the provision of Sec 1A and 1B of the CPA, CAP 21 Laws of Kenya and should be dismissed.
B. Applicant’s case
4. He deposed that the Appellant does not intend to appeal against the trial court’s Judgment but merely seeks rectification of the erroneous decree dated 18 th July 2025 in the sum of Kshs. 2,295,490, which the appellant contends is irregular and materially defective, having inflated interests from Kshs.54,443.83 to Kshs.216,000 and exaggerated the costs from Kshs.120,000 to Kshs. 135,000, contrary to the Advocates (Remuneration) Order and without any lawful basis.
5. Further, that despite the applicant’s readiness to settle the decree the respondent through her agents/auctioneers proceeded to attach and sell the applicants Motor Vehicle KDC 533B (Mercedes Benz Prime Mover) and Trailer ZE 2791, valued at kshs.4,000,000/- at gross undervalue on 16 th August, 2025.
6. As a consequence, the applicant moved the trial court through an application dated 24 th September 2025 seeking to nullify the unlawful sale and preserve the subject matter, but the same was dismissed on a technicality. Consequently, the Applicant returned to the trial court with further applications, filed on 28 th October 2025, before any fresh proclamation had been issued, and a second filed on 30 th October 2025, immediately after the Respondent’s auctioneer issued a new Proclamation of Attachment on the same date, but the trial court declined to certify either application as urgent and instead allocated a mention date, a decision that effectively denied the Applicant timely judicial protection despite the clear and imminent risk of attachment.
C. Respondent’s case
7. The Respondent vide two(2) Replying Affidavits sworn on 25 th November, 2025 and 11 th December, 2025 has opposed the application on grounds that the applicant is litigating the same issues both at the High Court and Mombasa Chief Magistrate Court which amounts to a fishing expedition.
8. That, on the contrary the costs in the suit in Mombasa Chief Magistrate Court No. 2319 of 2014 Claudine Mugabekazi vs Yalfa Cargi Handling Ltd & others was agreed by the both counsels for the parties herein, and all legal procedures pertaining to the execution of the decree were complied with to wit the applicant never preferred an appeal against the judgment and decree thereof.
9. That, as a consequence the respondent proceeded with lawful execution and proclaimed and auctioned the said Motor Vehicle KDC 533B (Mercedes Benz Prime Mover) and Trailer ZE 2791 to the highest bidder at kshs.1,500,000/-. Thereafter, the trial court re-issued warrants of attachment against the applicant’s movable properties after the applicant’s application for stay was dismissed, which dismissal is preceded the present appeal.
D. Written submissions
10. The applicant in its submissions dated 27 th November, 2025 dated 8 th December, 2025 simply reiterated its grounds to sustain its application and thereby relied persuasively on the authorities in Equity Bank Ltd v Taiga Adams Company Ltd [2006] eKLR, Nairobi Women’s Hospital v Purity Kemunto [2018] eKLR , Equity Bank Limited v West Link Mbo Limited [2013] KECA 320 (KLR) to the end that the Applicant has satisfied every statutory and judicially established requirement for grant of stay pending appeal.
11. Further, it was the applicant’s contention that Respondent’s Preliminary Objection is misconceived as it does not raise any pure point of law but introduces factual disputes requiring evidence which is contrary to the case of Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd [1969] EA 696.
12. The respondent in her submissions dated 26 th November, 2025 equally reiterated her opposition to the application to the end that the same is a replica of what is pending before the trial court and these proceedings are tantamount to forum shopping therefore this court lacks the jurisdiction to entertain the same. Reliance was placed on the authority in Samuel Macharia & another vs Kenya Commercial Bank Ltd. & 2 other (2012)eklr, Owners of Motor Vessel “Lillian S” vs Caltex Oil Kenya Ltd (1989)eklr.
E. Analysis and Determination
13. The twin issues for determination are whether the respondent’s preliminary objection is warranted and whether the applicant has met the threshold for a stay of execution pending the hearing and determination of the appeal. Noting the consequent effect of the preliminary objection to the application and appeal in entirety, this court shall dispense with the same on priority.
• Whether the respondent’s preliminary objection is warranted?
14. The locus classicus on preliminary objections is the dictum of Law J.A in Mukisa Biscuit Manufacturers Ltd Vs Westend Distributors Ltd ( 1969) EA 696.
"...so far as I am aware, a preliminary objection consists of a pure point of law which has been pleaded, or which arises by clear implication out of pleadings, and which if argued as a preliminary objection may dispose of the suit. Examples are an objection to the jurisdiction of the court, or a plea of limitation, or a submission that the parties are bound by the contract giving rise to the suit, to refer the dispute to arbitration."
15. The Supreme Court of Kenya cited with approval the position on preliminary objections emphasized by the Court in the case of Hassan Nyanje Charo Vs Khatib Mwashetani & 3 Others, Civil Application No. 23 of 2014, [2014] e KLR; and in Aviation & Allied Workers Union Kenya Vs Kenya Airways Ltd & 3 Others, Application No. 50 of 2014, [2015] eKLR that :
“Thus, a preliminary objection may only be raised on a ‘pure question of law’. To discern such a point of law, the Court has to be satisfied that there is no proper contest as to the facts . The facts are deemed agreed, as they are prima facie presented in the pleadings on record.”
16. It is abundantly clear from the body of decisions cited above, that preliminary objections must confine themselves to pure points of law. In the instant the objection, the same is raised on two (2) limbs. First, that the instant application and appeal is incompetent, defective, frivolous, vexatious, scandalous, fatally incurable and an abuse of the court process. Secondly, that that the application is res judicata.
17. Respectfully, as to the first limb, this court shall not belabour much in interrogating the allegations that the appeal/application is frivolous, vexatious and an abuse of the court process as the same are questions of fact and do not necessarily raise a pure point of law. Simply put, the grounds raised clearly traverse beyond the ambits and prerogative of a preliminary objection by raising questions of fact.
18. As to the second limb Section 7 of the Civil Procedure Act, cap 21 Laws of Kenya provides for the doctrine of res judicata as a bar for the court to determine a subsequent similar suit in the following terms;
No court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such court
19. The Supreme Court stated the purpose of the doctrine of res judicata in the case of John Florence Maritime Services Ltd & Another vs Cabinet Secretary for Transport and Infrastructure & 3 Others (2021)eKLR para 54 as follows;
“The doctrine of Res judicata in effect, allows a litigant only one bite at the cherry. It prevents a litigant or persons claiming under the same title, from returning to court to claim further reliefs not claimed in the earlier actions. It is a doctrine that serves the cause of order and efficacy in the adjudication process. The doctrine prevents a multiplicity of suits, which would ordinarily clog the courts, apart from occasioning unnecessary costs to the parties; and it ensures that litigation comes to an end, and the verdict duly translates into fruit for one party, and liability for another party, conclusively.”
20. I have considered the respondent’s argument on the instant application being res judicata and the same is simply misguided. This court in associating itself with the sentiments by the Supreme Court above, the doctrine of res judicata is a statutory preclusion of re-litigation and multiplicity of suits where the issues raised have long been heard and determined with finality. Such is not the case herein. The applicant approached this court as an appellate forum having been aggrieved by the decision of the trial court. In as much as the trial court’s competence is undoubted, the same is not an appellate court. The avenue and reprieve of an appeal cannot be ousted under the doctrine of res judicata. Accordingly, the preliminary objection fails.
• Whether the applicant has met the threshold for a stay of execution pending the hearing and determination of the appeal?
21. As regards stay of execution pending appeal, Order 42 Rule 6(2) of the Civil Procedure Rules requires of the applicant to prove the substantial loss it stands to suffer should order of stay not issue. Sufficient cause being a technical as well as legal requirement will depend entirely on the Applicant satisfying the court that:
a) Substantial loss may result to the applicant unless the order is made,
b) The application has been made without unreasonable delay, and
c) Such security as the court orders for the due performance of the decree or order as may ultimately be binding on the applicant has been given by the applicant.
22. No doubt, in law, the fact that the process of execution has been put in motion, or is likely to be put in motion, by itself, does not amount to substantial loss. Even when execution has been levied and completed, that is to say, the attached properties have been sold, as is the case here, does not in itself amount to substantial loss under Order 42 Rule 6 of the CPR . This is so because execution is a lawful process.
23. In this instance, the appellant/applicant does not contest the Judgment dated 17 th April 2025 by the trial court. On the contrary they have even expressed their willingness to settle the decretal sum but their sole grievance as couched in their Memorandum of Appeal has been the unlawful execution founded on an erroneous decree and the gross undervaluation of its assets. The same was contested in their application 24 th September 2025 seeking stay of execution and proper accounts and valuations, but the application was dismissed on 24 th October 2025 on a mere technicality, which being aggrieved they have appealed herein.
24. It is not in dispute that from the alleged erroneous decree dated 18 th July 2025, of the decretal sum of Kshs.2,295,490/= the respondent proceeded with lawful execution and proclaimed and auctioned the applicant’s property for kshs.1,500,000/-. After considering all the rival arguments herein, I am of the view that substantial loss would befall the Applicants if another execution is levied at this stage, noting that despite its willingness to settle the decretal sum, the very tabulations of the decree have been impugned.
25. The fact that an execution has already been levied on the Applicants makes it undesirable that further execution should be levied when an appeal, which I believe is not frivolous, is pending before the court. The right of appeal is a constitutional right that actualizes the right to access to justice, protection and benefit of the law, whose essential substance, encapsulates that the appeal should not be rendered nugatory, for anything that renders the appeal nugatory impinges on the very right of appeal. See JAMES WANGALWA & ANOTHER V AGNES NALIAKA CHESETO[2012]eKLR.
26. For what is worth the present appeal was timeously been instituted. Therefore, it is only prudent that interests of both parties herein be balanced to the effect that neither would invariably prejudiced.
27. 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.
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.”
28. Therefore, in balancing the interests of the appellant who pursues an opportunity to be heard on the merits of its case and that of the respondent decree holder who seeks to benefit from the fruits of her judgment and take care to protect the appellant from irreparable loss in the event of a successful appeal, the court shall make an order the appellant shall deposit in court a Bank Guarantee from a reputable bank for the balance of the decretal sum both within (14) fourteen days. In default, lawful execution shall issue.
F. Disposition
29. Accordingly, I find that the application dated 4 th November, 2025 is meritorious to the extent held hereinabove and the same is allowed as follows:
a. Stay of execution of the decree dated 18 th July 2025 and the Warrants of Attachment issued on 27 th October 2025, together with all consequential proceedings in Mombasa CMCC No. 2139 of 2014 pending the hearing and determination of this appeal, subject strictly to the deposit in court of a bank guarantee from a reputable bank for the balance of the decretal sum, within 14 days hereafter.
b. In default, order for stay of execution to lapse and execution to issue.
Orders accordingly.
DATED, SIGNED and DELIVERED at MOMBASA Virtually this…17TH…...day of…...DECEMBER………2025.
W. K. MICHENI
JUDGE
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