Mwangi t/a Thames Traders Auctioneers v Nyoro Construction Company Ltd & 2 others

2. The motion is supported by the adavit of the Appellant and is also premised on the (5) ve grounds. The gist of the grounds and adavit is as follows. One, by a ruling dated 5-3-2025 the trial court in Murang’a CM’s Court Case no. MCELC/E040/2022 directed the Applicant, the 2nd and 3rd Respondents to avail motor vehicle registration No..KBQ 154 U in Court on 12-3-2025 in the same condition it was when it was attached failing which they would be held in contempt of the Court orders and would be ordered to pay the Judgement debtor who is the rst Respondent the value of the said vehicle in cash within 14 days without further reference to the court. Two, the Applicant moved the court vide an application dated 19-5-2025 which the court dismissed on 24-9-2025. In dismissing the Applicant’s application dated 19-5-2025 the trial Court ordered the immediate arrest of the applicant, the 2nd and 3rd Respondents as per the ruling of 5-3-2025 .Four, the orders in the ruling of 5-3-2025 and 24-9-2025 were made by the Court on its own motion without any of the parties moving the Court. Five, the Applicant is apprehensive that the warrant of arrest issued could be executed and enforced against him hence the need for the ling of this application. Six, after the attachment and sale warrants were issued by the trial court on 15-3-2024 , motor vehicle no KBQ 154 U was advertised for sale and eventually sold at Ksh 110,500/= after it had been vandalized. Ksh 66,000/= was paid to the 2nd Respondent. The sale held on 4-6-2024 has never been challenged vide a substantive motion. The notice to show cause dated 15-10-2024 had nothing to do with the Applicant and it was executed by Kentrack Auctioneers. The Applicant has also given further explanations which I need not exhaust here. The Applicant has also sworn a further adavit dated 1-7-2026 which further explains what happened before and after the sale of motor vehicle no KBQ154 U. 3. The 1st Respondent has led a replying adavit through one of its Directors, Josiah N. Njuguna. In the said adavit dated 23-3-2026 it is responded as follows. Firstly, in the decree dated 7-6-2023 the 2nd Respondent was awarded Kshs 1,373,197. The 2nd Respondent instructed the Appellant to attach motor vehicle no KBQ 154 U which the Appellant did. Secondly, the 1st Respondent’s advocate wrote to the 3rd Respondent who was the 2nd Respondent’s advocate indicating the 1st Respondent’s willingness to settle the decretal sum and asking for the release of the vehicle .Thirdly, the 1st Respondent paid a sum of Kshs 978,579 which was about 80% but the Applicant and the 2nd and 3rd Respondent did not release the vehicle .Fourthly, on 5-3-2025 the trial court issued an order directing the 2nd and 3rd Respondents and the Applicant to avail motor vehicle no KBQ 154 U in good condition or in the alternative remit Kshs 1.5 million. They are yet to comply. This is the reason why the court issued the warrants of arrest against them. Fifthly, on 11-3-2025, the Applicant led a breakdown of the purported proceeds of sale. This breakdown does not include a valuation report, the identity of the purchaser of the vehicle among other things. It is therefore misleading to allege that the vehicle was sold for Kshs 110,000/= when an earlier report said that it had been sold for Kshs 54,000. Finally ,there were good reasons for the trial court to nd the Applicant and the other respondents in contempt of court orders. 4. Counsel for the parties led written submissions dated 2-7-2026 and 3-7-2026 respectively. The 1st Respondent’s counsel identied ve (5) issues for determination .They are as follows. i. Whether this application is properly before the court. ii. Whether the Applicant has established sucient cause for the court to exercise its discretion. iii. Whether the Applicant is entitled to equitable relief in light of his conduct and continued noncompliance with court orders. iv. Whether the present application constitutes are abuse of the court process. v. Who should bear the costs of this application. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5676/eng@2026-09-21 2

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On the other hand, the Applicant’s counsel has not identied clear out issues but a perusal of the written submissions brings out the following issues. (1) Whether the Appellant was given a fair hearing by the trial court as required by Article 50(1) of the Constitution. 5. I have carefully considered the motion in its entirety including the grounds, the supporting and the further adavits as well as the replying adavit. I have also considered the written submissions by learned counsel for the Applicant and 1st Respondent. This, being an application for stay of execution pending appeal, I nd that Order 42 rule 6(2) of the Civil Procedure Rules applies in this case .It provides as follows: “No order for stay of execution shall be made under subrule (1) unless – a. The Court is satised 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-.” From Order 42 rule 6(2) Civil Procedure Rules , I nd that the following issues arise. 6. a. Whether the Applicant stands to suer substantial loss unless the order sought is issued. b. Whether the application has been made without unreasonable delay. c. Whether the Applicant has provided security for the due performance of any decree or order that may ultimately be issued against him. Examining the rst issue, I nd that the Applicant does not stand to suer substantial loss if the order sought is not given. Since 5-3-2025, the Applicant has been given time to account for the proceeds of the execution process. Between 5-3-2025 and 19-5-2025, he had the chance to tell the trial Court all the things he is now telling this court concerning the execution process. The trial court was the best forum to deal with how much was raised from the sale of the vehicle, its value , condition and how to oset any amounts paid by the 1st Respondent. The Applicant did not take up the opportunity given by the trial Court. He instead led the application dated 19-5-2025. The warrants of attachment and sale give timelines within which the auctioneers must return the warrants to court whether executed or not with an explanation as to why they have not been executed, This court is not well suited to deal with the execution process of the trial court before the trial court has itself exhausted the process. Even now, it is not too late for the Applicant to appear before the trail court and explain what happened. Before or after arrest, he will still be given a chance to say something before he is sentenced. It is not too late to explain his case to the trial court. Secondly, the Applicant can still deposit the decretal sum in court and still convince the court why it should not be released to the 1st Respondent. With all the above possibilities, I nd that the Applicant does not stand to suer substantial loss if the order sought is not issued. 7. Regarding the second issue. I nd that the delay in ling the current motion is unreasonable. The warrants sought to be stayed were issued in March and the motion to set them aside was dismissed in 24-9-2025. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5676/eng@2026-09-21 3

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This appeal was led on 7-10-2025 but it was not until 8-12-2025 that the motion drawn. It rst came to the attention of the court on 18-12-1025.This was about 2 ½ months after the last order of the trial court on 24-9-2025 . This is in my view unreasonable delay. 8. Finally, on security for the due performance of the decree, the Applicant has not oered any in his two adavits dated 8-12-2025 and 1-7-2026.No mention has been made of what will happen in the event that the appeal is dismissed .The Applicant should commit himself to pay the costs of litigation that is now more than four years old in case he loses the appeal ultimately. Such commitment is a prerequisite to the granting of the orders that the Applicant seeks. 9. In conclusion and for the reasons given , I nd no merit in the motion dated 8-12-2025 which I dismiss with costs to the rst Respondent . It is so ordered. DATED, SIGNED AND DELIVERED VIRTUALLY AT MURANG’A THIS 21ST DAY OF SEPTEMBER, 2026. M.N. GICHERU JUDGE. Delivered online in the presence of; Court Assistant – Antony Appellant’s Counsel – Miss Wambui 1st Respondents’ Counsel - Miss Kabaila h/b 2nd and 3rd Respondents – Mr Mwangi Ben https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5676/eng@2026-09-21 4

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