Oguna v Kingdom Bank Limited & 3 others (Civil Appeal E240 of 2024) [2025] KEHC 14318 (KLR) (11 June 2025) (Ruling) Neutral citation: [2025] KEHC 14318 (KLR) REPUBLIC OF KENYA IN THE HIGH COURT AT MACHAKOS CIVIL APPEAL E240 OF 2024 NIO ADAGI, J JUNE 11, 2025 BETWEEN GILBERT JAMES OGUNA ..................................................................... APPELLANT AND KINGDOM BANK LIMITED ....................................................... 1ST RESPONDENT NGURU AUCTIONEERS ............................................................ 2ND RESPONDENT GLOSAM AGENCY LIMITED ..................................................... 3RD RESPONDENT SAMUEL MASAKI ........................................................................ 4TH RESPONDENT RULING 1. This ruling is on the 1st and 2nd Respondents' notice of preliminary objection dated 25th October 2024 to the Appellant's notice of motion application dated 4th September 2024. The 1st and 2nd Respondents are relying on the following grounds that:a. There is no order arising out of the impugned decision of the trial court in favour of the Respondents which is capable of enforcement by execution for this Honourable Court in an application for stay to either enforce or restrain pending the hearing and determination of the appeal. b. The dismissal order issued by the trial court is a negative order that cannot be enforced and is not capable of execution. b. The Appellant's application and the entire appeal are fatally defective, misconceived, bad in law and an abuse of the court process and it is only fair, just and proper that the court strikes them out. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/14318/eng@2025-06-11 1
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2. The facts of this matter are that on 22nd August 2024, the trial court dismissed the Appellant's notice of motion application dated 7th May 2024 which was seeking a temporary injunction. The Appellant was aggrieved by this decision and filed this appeal together with the instant notice of motion application dated 4th September 2024 seeking a stay of execution of the ruling and ensuing order of the Principal Magistrate Court in Mavoko by Hon. E.K. Suter, PM, dated 22nd August 2024 pending the hearing and determination of this appeal. 3. The preliminary objection was directed to be canvassed by way of written submissions. The 1st and 2nd Respondents filed their submissions dated 27th November 2024. The Appellant failed to file submissions despite being directed to do so on 20th November 2024. 4. I have carefully considered the preliminary objection, the application herein and the submissions by the 1st and 2nd Respondents together with the cited authorities. 5. I have further perused the court record and noted that the ruling of the trial court in Mavoko MCCC/ E243/2024 delivered on 22nd August 2024 dismissed the Appellant’s notice of motion application dated 7th May 2024 which was seeking a temporary injunction. 6. In essence the impugned ruling is a negative order and is incapable of execution. 7. On whether stay of the ruling dated 22nd August 2024 can issue, it goes without saying that the Applicant seeks to stay the execution of a ruling which had dismissed an application for temporary injunction which in essence is seeking stay of negative order. This view was expressed by the court in the case of Catherine Njeri Maranga v Serah Chege & Another [2017]eKLR, wherein the court held;“ ...The Applicant seeks to appeal against the order dismissing his application. This is not an order capable of being stayed because there is nothing that the Applicant has lost. The refusal simply means that the Applicant stays in the situation he was before coming to court and therefore the issues of substantial loss that he is likely to suffer and the appeal being rendered nugatory does not arise” 8. Similarly, the Court of Appeal in the case of Kaushik Panchamatia & 3 Others v Prime Bank Limited & Another [2020]eKLR had this to say on negative orders:“ …that a negative order is incapable of being stayed because there is nothing to stay. It therefore, follows that in light of the above threshold we have no mandate to grant a stay order in the manner prayed for by Applicants.” 9. It is not this court’s wish to reinvent the wheel but instead holds that a negative order, say for example an order dismissing a suit or an application, cannot be stayed as there is essentially nothing to stay or prevent from happening or continuing to happen. Therefore, this court need not address the tripartite conditions for stay of execution as enshrined under Order 42 Rule 6(2) of the Civil Procedure Rules as concern that issue for determination. It thus follows that an order cannot issue for staying the ruling delivered by the Principal Magistrate Court in Mavoko by Hon. E.K. Suter, PM, dated 22nd August 2024 pending the hearing and determination of this appeal. Disposition 10. Accordingly, I make the following orders: a. The application dated 4th September 2024 lacks merit and is dismissed with costs. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/14318/eng@2025-06-11 2
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11. b. That, the Applicant/Appellant to compile, file and serve a Record of Appeal within Forty-Five (45) days from the date of this ruling. c. That, the Deputy Registrar of this court to call for and avail the original record of proceedings of the trial court to enable the appeal be admitted for hearing. d. Mention on …28/10/2025………… for parties to confirm compliance and take further directions on hearing of the appeal e. Failure to comply with order (b) above, will render the appeal dated 4th September, 2024 dismissed. It is so ordered. RULING WRITTEN, DATED & SIGNED AT MACHAKOS THIS 11TH JUNE 2025 NOEL I. ADAGI JUDGE DELIVERED VIRTUALLY ON TEAMS AT MACHAKOS THIS 11TH JUNE 2025 In the presence of : Gilbert Boyi................... for Appellant/Applicant Ms. Abobo............. ..for Respondent Milly........... Court Assistant https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/14318/eng@2025-06-11 3
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