Destiny Hauliers Limited v Heritage Insurance Company Limited & 3 others

respondents”. Ms. Ireri further contended that the conditions stated in Order 42 Rule 6 of the Civil Procedure Rules had not been met. 5. Ms Ireri deposed that the balance of convenience tilted in favour of allowing the execution to proceed, as the 1st respondent, being a solvent institution, had the capacity to restitute the appellant. 6. Although parties were directed to file submissions, only the appellant/applicant and the 1st Respondent did. The counsel for the 2nd and 3rd Respondent opted to rely fully on the replying affidavit. 7. The submissions of the appellant/applicant are dated 15th October 2025. Those of the 1st Respondent are dated 14th November 2025. I have considered the submissions. 8. I note that the Court below delivered a terse ruling on 27th June 2025 in which it held that: “ The defendant/applicant’s preliminary objection dated 13th March 2025 is upheld, and for avoidance of doubt, the plaintiff/respondent’s suit is struck out with costs.” 9. The question in my view is whether the decision of the Court below is capable of being stayed. I note that the Hon Gathogo Sogomo struck out the suit. Is such an order capable of being stayed? I am afraid not. I am guided by the decisions of the High Court and the Court of Appeal that I am going to set out below. 10. In Cooperative Bank of Kenya Ltd v Banking Insurance & Finance Union (Kenya) [2015] eKLR, it was held that: “ An order for stay of execution (pending appeal) is ordinarily an interim order which seeks to delay the performance of positive obligations that are set out in a decree as a result of a judgment. The delay of performance presupposes the existence of a situation to stay – called a positive order – either an order that has not been complied with or has partly been complied with.” 11. A similar holding was made in the case of Kenya Commercial Bank Limited v Tamarind Meadows Limited & 7 Others [2016] eKLR. The Court of Appeal stated that: “ In Kanwal Sarjit Singh Dhiman v Keshavji Juvraj Shah [2008] eKLR the Court of Appeal while dealing with a similar application for stay of a negative order, held as follows: -The 2nd prayer in the application is for stay (of execution) of the order of the superior court made on 18th December 2006. The order of 18th December 2006 merely dismissed the application for setting aside the judgment with costs. By the order, the superior court did not order any of the parties to do anything or refrain from doing anything or to pay any sum. It was thus, a negative order which is incapable of execution save in respect of costs only.The same reasoning was applied in the case of Raymond M. Omboga v Austine Pyan Maranga (supra) that a negative order is one that is incapable of execution, and thus, incapable of being stayed. This is what the Court had to say on the matter:-The order dismissing the application is in the nature of a negative order and is incapable of stay of execution, save perhaps, for costs and such order is incapable of stay. Where there is no positive order made in favour of the respondent which is incapable of execution, there can be no stay of execution of such an order….The applicant seeks to appeal against the order dismissing his application. This is not an order capable of being stayed because there is nothing the applicant has lost. The refusal simply means that the applicant stays in the situation he was in before coming to https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18225/eng@2025-12-05 2

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court and therefore the issues of substantial loss that he is likely to suffer and or the appeal being rendered nugatory does not arise…” 12. In Western College of Arts and Applied Sciences v EP Oranga & 3 others [1976] KECA 15 (KLR), Law, JA, while determining an application for stay pending appeal, observed that: “ But what is there to be executed under the judgment, the subject of the intended appeal? The High Court has merely dismissed the suit, with costs. Any execution can only be in respect of costs. In Wilson v Church, the High Court had ordered the trustees of a fund to make a payment out of that fund. In the instant case, the High Court has not ordered any of the parties to do anything, or to refrain from doing anything, or to pay any sum. There is nothing arising out of the High Court judgment for this Court.... 13. Since the applicant seeks to stay a negative order, it is my view that it has not demonstrated that it will suffer a substantial loss. The order that is sought is simply incapable of being granted. 14. That being the case, I find and hold that the application dated 1st July 2025 has no merit. The same is dismissed with costs. 15. It is so ordered DATED AND SIGNED AT MOMBASA, THIS 5TH DAY OF DECEMBER 2025. DELIVERED VIRTUALLY THROUGH MICROSOFT TEAMS. GREGORY MUTAI JUDGE In the presence of: Mr Mwanzia, holding brief for Mr Mauko, for the 1st Respondent; No appearance for the Applicant; Mr Muturi Kamande, for the 2nd and 3rd Respondents; No appearance for the 4th Respondent; and Norah – Court Assistant. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18225/eng@2025-12-05 3

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