Kennedy Kaunda Kisilu T/A Kind Medical Services v Transwide Pharmaceuticals Limited

auction, and unless the orders sought are granted, the Appellant will suffer irreparable loss, damage and untold suffering. The application has been brought without unreasonable delay, and the appeal will be rendered an academic exercise if execution proceeds. 3. 4. The Respondent filed grounds of opposition dated 3/6/2025 that; 1. The Appellant seeks to appeal against the order of Hon. L.W Mouti (RM) dismissing his application. This is a negative order not capable of being stayed because there is nothing that the Applicant has lost. 2. The Application has not met the legal threshold for the grant of the Orders sought therein Under Order 42 Rule 6 and 7 of the Civil Procedure Rules 2010. 3. The Applicant has not presented sufficient evidence as well as factual grounds for the grant of the Orders Sought. 4. In any case, the execution is a legal process supervised by the Court and the appellant cannot allege to suffer substantial loss from a legality. 5. The Respondent has a huge financial muscle to compensate the Appellant by way of damages in the unlikely event that his appeal succeeds. 6. The Application dated the 25th of April 2025 is therefore bad in law, an abuse of the court process and ought to be dismissed with costs to the Respondent. The application was canvassed by way of written submissions which were only filed by counsel for the Respondent. Determination 5. The singular issue for determination is whether the orders sought should be granted. 6. Order 42 Rule 6 (2) of the Civil Procedure Rules provides as follows; “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.” 7. The order sought to be stayed was a dismissal of the Appellant’s applications dated 2/4/2025 and 9/4/2025. The question that begs is whether a dismissal is a positive order capable of execution. 8. The Court of Appeal in AG v James Hoseah Gitau Mwara [2014] eKLR expounded that in order for a court to exercise its discretion to grant stay, it must ask itself the question whether there is anything capable of being stayed in the ruling sought to be impugned. 9. The Court of Appeal in Kaushik Panchamatia & 3 Others v Prime Bank Limited & Another [2020] eKLR espoused 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.” 10. I thus find that the trial court’s order of 29/4/2025 was a dismissal, which is by its nature a negative order incapable of being stayed. 11. The upshot from the foregoing analysis is that the application dated 25/4/2025 is in want of merit and it is accordingly dismissed with costs to the Respondent. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/16039/eng@2025-11-06 2

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DATED AND DELIVERED AT MERU THIS 6TH DAY OF NOVEMBER, 2025 S.M. GITHINJI JUDGE Appearance:Mr. Chebii for the Respondent. Mr. Nyaga for the Appellant. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/16039/eng@2025-11-06 3

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