Pithon Ndung’u Mwangi & 1 other v Jackson Masila Musingila & 4 others

e. That the Honourable Court be pleased to grant an order of release of Motor Vehicle Registration No.KAA 615H by the Respondents pending the hearing and determination of the appeal. f. That the Honourable Court be pleased to grant an order of stay of execution of the Ruling, Order and all consequential orders issued on 9th May, 2024 in Limuru SPMCC No.346 of 2018 in favour of the Appellants pending the hearing and determination of the appeal. g. That the Respondents jointly and severally be prohibited from selling, detaining, attaching, auctioning or in any other way dealing with Motor Vehicle Registration No.KAA 615H or attaching any other pending assets of the Appellants pending the hearing and determination of the appeal. h. That the Honourable Court be pleased to grant an order of release of Motor Vehicle Registration No.KAA 615H by the Respondents pending the hearing and determination of the Appeal. i. That the Honourable Court be pleased to grant such other orders or directions as it may deem fit and just in the circumstances. j. That the costs of this application be provided for. 2. The application is based on the grounds as set out on its face and the Supporting Affidavit of Rose Wambura Maina sworn on the instant date. The gist of it being that despite the Applicants having fully paid the decretal sum inclusive of interest and costs, the 1st and 2nd Respondents have been harassing and intimidating them with warrants of attachments form the auctioneers with an intention of extorting from them to enrich themselves. 3. The Application is opposed through the Replying Affidavit of Jackson Masingila Musila sworn on 22nd July, 2024 whereby the Respondents hold that the application is frivolous, vexatious and an abuse of court process. His contention is that the court lacks jurisdiction to handle both the appeal and application given that they did not seek leave to appeal which is a mandatory requirement under Section 75 of the Civil Procedure Act. He holds that Judgment in a matter was delivered on 11th May, 2021 where he was awarded Kshs. 759,550/= following a road traffic accident that occurred on 14th March, 2017. 4. He holds that his advocates informed him that they instructed auctioneers to execute the decree on not only his case but also Limuru CMCC No. 283 of 2019 to which in the latter Kshs. 400,000/= was paid and they further committed to pay the outstanding sum of Kshs. 1,629,653/= with monthly instalments of Kshs. 200,000/= and Kshs. 800,000/= had been paid. 5. He holds that his advocates informed him that Kshs. 200,000/= had been paid for his suit and the auctioneers deducted fees of Kshs. 188,050/= and later another sum of Kshs. 250,000/= and thus the total amount paid was Kshs. 450,000/= and thus it was misleading for the applicants to state that the full decretal amount was paid. He holds that the appellants paid Kshs. 800,000/= for both his suit and No.283 of 2019 which was utilized in paying auctioneer fees and advocates fees. 6. He holds that the Applicants defaulted in further payments and thus another auctioneer was instructed but the Applicants filed the application dated 15th May, 2023 seeking to set aside the Judgment of the trial Court which the court upheld his application. They hold that the application is an afterthought and meant to frustrate his efiorts to enjoy fruits of judgment and it should thus dismissed with costs. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19320/eng@2025-05-20 2

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7. The Applicant filed the Supplementary Affidavit sworn by the same deponent where she maintains that the full decretal amount has been paid and she maintains that she does not require leave to file an appeal in the matter. 8. The court directed that the application to be canvassed by way of written submissions and the parties duly complied. Analysis and Determination 9. 10. The court has considered the Notice of Motion application by reading through the Supporting Affidavit, the Replying Affidavit and the submissions filed by the respective parties and find the issues for determination being:a. Whether this Court has jurisdiction to determine the application and entire appeal. b. Whether the court can grant a stay of execution of the ruling, order and all consequential orders issued on 9th May, 2024 by the trial court. c. Whether the Respondents can jointly and severally be prohibited from selling, detaining, attaching, auctioning or in any other way dealing with Motor Vehicle Registration No. KAA 615H pending the hearing of the appeal. d. Whether the court can issue an order for the release of Motor Vehicle Registration No. KAA 615H pending the hearing and determination of the appeal Given the history of the case, the time taken to file the application and the circumstances of the case, the court hereby exercises its discretion and grants the orders sought in the following terms:a. That the Honourable Court be pleased to grant an order of stay of execution of the Ruling, Order and all consequential orders issued on 9th May, 2024 in Limuru SPMCC No. 346 of 2018 in favour of the Appellants pending the hearing and determination of the appeal. b. That the Respondents jointly and severally be prohibited from selling, detaining, attaching, auctioning or in any other way dealing with Motor Vehicle Registration No. KAA 615H or attaching any other pending assets of the Appellants pending the hearing and determination of the appeal. c. That the cost of this application be in the cause. It is so ordered. RULING DATED AND SIGNED AT KIAMBU THIS 20TH DAY OF MAY,2025. (UPLOADED VIA ELECTRONIC MAIL) D. O. CHEPKWONY JUDGE https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19320/eng@2025-05-20 3

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