Dreamline Express Ltd v Joshua Habeni Nyawa & 1 other

2. 3. v. That the application be heard inter parties on such date and time as this honorable court may direct. vi. That the costs of this application abide the outcome of the appeal. The application is based on the following grounds:i. In Voi Civil Suit No. 52 of 2022 the judgment was entered on the 22nd March 2024 against the Appellant/Applicant. ii. The Respondent proceeded to instruct M/S Status auctioneers to take our proclamation and warrants of attachment in execution of the judgment entered on 22nd March 2024 in Voi CMCC No. 52 of 2022. iii. The Appellant filed an application seeking stay of execution and requesting that their insurer be given more time to settle the decretal amount as their servers have been interfered with and they are unable to process payment. iv. The court directed on 11th October 2024 that the parties should try to compromise the application and the application is to be mentioned on 23rd October 2024 without granting stay of execution. v. The Respondent has already proclaimed the Appellant’s moveable property and if no stay is granted the Appellant/Applicant’s moveable will be attached and auctioned and they would suffer irreparable loss and damage and this application and the appeal herein will be rendered nugatory. vi. The Appellant/Applicant being dissatisfied with the ruling/order dated 11th October 2024 filed this appeal. vii. The Appellant/Applicants have to come to court within a reasonable period of time and without undue delay. viii. The application will not occasion any prejudice to the Appellant/Applicant. ix. This application has been done without any unreasonable delay. The application is supported by the affidavit of ALI RASHID sworn on 15th October 2024 in which he deponed as follows:i. That I am a director at the Appellant/Applicant’s company in this matter and I am therefore competent to swear this affidavit. ii. That I am authorized by the Appellant/Applicant to make this affidavit on their behalf. iii. That in Voi Civil Suit No. 52 of 2022 the Judgment was entered on the 22nd March 2024 against the Appellant/Applicant. iv. That the Respondent proceeded to instruct M/S Status Auctioneers to take our proclamations and warrants of attachment in execution of the judgment entered on 22nd March 2024 in Voi CMCC No. 52 of 2022. v. That I am informed by our advocates on record which information I verily believe to be true that an application dated 11th October 2024 in the lower court seeking stay of execution was https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19627/eng@2025-05-02 2

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filed and requesting that their insurer be given more time to settle the decretal amount as their servers have been interfere with and they are unable to process payment. 4. vi. That I am informed by our advocates on record which information I verily believe to be true that the court directed on 11th October 2024 that the parties should try to compromise the application and the application is to be mentioned on 23rd October 2024 without granting stay of execution. vii. That I am informed by our advocates on record which information I verily believe to be true that the Respondent has already proclaimed the Appellant’s moveable property and if no stay is granted the Appellant/Applicant’s moveable will be attached and auctioned and they would suffer irreparable loss and damage and this application and the appeal herein will be rendered nugatory. viii. That dissatisfied with the ruling/order dated 11th October 2024 filed this appeal. ix. That the Appellant/Applicants have to come to court within a reasonable period of time and without undue delay. x. That the application will not occasion any prejudice to the Appellant/Applicant. xi. That this application has been done without any unreasonable delay. xii. That I am informed by our advocates on record which information I verily believe to be true that the Appellant/Applicant has a high chance of success. xiii. That I am further informed by our advocates on record which information I verily believe to be true that this application has been made in good faith and the same will not occasion any prejudice to the Respondent. xiv. That I am further informed by our advocates on record which information I verily believe to be true that it is in the interest of justice the application be granted as prayed. xv. That I make this affidavit verily believing that it is in the interest of justice and a fair hearing that the instant application be allowed and the orders granted as prayed since the same will not occasion any prejudice to the Respondent herein. The Respondent opposed the application by a replying affidavit sworn on 22nd October 2024 in which he deponed as follows:i. That I am the Plaintiff herein and as such competent to depone this affidavit and on matters that I can prove of my own knowledge save where source of my information has been disclosed. ii. That the application is an abuse of the court process to the extreme in that:- iii. a. No request for more time has been made to me or to my advocate and in fact the application the subject of this appeal has never been served to me or my advocate. b. The execution is against the Defendant and NOT the Defendant’s Insurers. c. That there is no nexus about payment of an admitted claim and servers of a Third Party. That the Auctioneers were promised by the Defendant that payment would be affected by 14.10.2024 but other than receiving the payment through the auctioneers we have been served with this application. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19627/eng@2025-05-02 3

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iv. That the judgment herein was delivered on 22.3.2024 and the 1st Defendant settled their share of the claim and no appeal was ever preferred against the judgement. v. That no one knows how long the Defendant needs to pay the decretal sum and I cannot wait indefinitely. 5. The parties filed written submissions as follows:- The applicant submitted that he is seeking stay of execution of the judgment delivered on 22nd March 2024 pending the determination of an appeal (Voi High Court Civil Appeal No. E057 of 2024) and another related application (Voi Civil Suit 52 of 2022). 6. The application is supported by an affidavit and is based on Order 42 Rule 4 & 6 of the Civil Procedure Rules. The applicant submitted that substantial loss will occur if execution proceeds, as the respondent may not refund the decretal sum if the appeal succeeds. The respondent has not proven financial capacity to repay, shifting the burden of proof to them. 7. That the application was filed without unreasonable delay, as the appeal was filed promptly after the judgment. 8. The applicant is willing to provide security, such as a bank guarantee or depositing the amount in court, to protect the respondent’s interests. 9. The applicant submitted that the appeal has high chances of success, and if execution proceeds, the appeal will be rendered nugatory, causing irreparable harm. 10. The applicant relied on several cases, including Halai & Another v. Thornton & Turpin and Kenya Orient Insurance Co. Ltd v. Paul Mathenge Gichuki, to support these arguments. The submissions concluded by urging the court to grant the stay to preserve the appeal’s integrity and prevent injustice. 11. The 1st Respondent opposed the Appellant’s application for stay of execution, arguing that the lower court issued a valid judgment in favor of the 1st Respondent, holding the Appellant 80% liable for damages (Kshs. 1,720,881 plus costs/interest). 12. That the 2nd Respondent settled its 20% share, but the Appellant defaulted, prompting execution for the outstanding Kshs. 1,672,447. 13. That the Appellant sought a stay in the trial court, claiming it needed time for its insurer to pay, but the magistrate declined an ex parte order and scheduled the matter for mention. The Appellant then filed this appeal. 14. The 1st respondent submitted that no appeal was lodged against the original judgment, rendering it unchallenged and enforceable. The 1st Respondent has a right to enjoy the judgment’s fruits. 15. Further, that under Order 42 Rule 6(2) of the Civil Procedure Rules, stay of execution requires proof of substantial loss, timely application, and security. 16. That the Appellant fails on all fronts- That no substantial loss is proven, as paying a lawful decree isn’t a loss. 17. That the execution is lawful; merely being compelled to pay doesn’t justify a stay-the case of (Joseph Simiyu Mukenya v. Agnes Naliaka Cheseto cited). 18. That the Appellant’s delay (over 3 months since October 2024) without payment or progress shows abuse of court process. The insurer arrangement is irrelevant—the Appellant, as the judgment debtor, must pay. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19627/eng@2025-05-02 4

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19. Further, that the appeal targets a minor procedural order (refusal to extend time) and lacks merit, as there’s no challenge to the underlying judgment. The linked suit (VOI CMCC No. E003/2024) is unrelated and cannot stall execution. 20. The 1st respondent submitted that the application is frivolous, an afterthought, and should be dismissed with costs to allow the 1st Respondent to proceed with execution. 21. The sole issue for determination is whether the Applicant should be granted stay of execution pending appeal. 22. The principles governing stay of execution pending appeal are well settled in Kenyan jurisprudence. Under Order 42 Rule 6(2) of the Civil Procedure Rules, an applicant must demonstrate: i. Substantial loss – that they will suffer irreparable harm if stay is not granted; ii. No undue delay – that the application was filed without unreasonable delay; and iii. Security – that they are willing to provide security for the due performance of the decree. 23. The Court of Appeal in the case of Halai & Another v. Thornton & Turpin [1963] Ltd [1990] KLR 365 emphasized that the primary consideration is whether the appeal will be rendered nugatory if execution proceeds. Similarly, in the case of Kenya Shell Ltd v. Kibiru & Another [1986] KLR 410, the court held that the applicant must show that the respondent would be unable to refund the decretal sum if the appeal succeeds. 24. The Applicant contended that if execution proceeds, their movable property will be auctioned, causing irreparable loss and rendering the appeal nugatory. They argued that the Respondent has not demonstrated the ability to refund the decretal sum should the appeal succeed. 25. This argument finds support in the case of James Wangalwa & Another v. Agnes Naliaka Cheseto [2012] eKLR, where the court held that: “ No one should be compelled to pay a decretal amount only to be told later that the appeal has succeeded and the money should be refunded, yet the respondent is unable to do so." 26. The Applicant has raised a legitimate concern, particularly since the Respondent has not provided evidence of financial capacity to refund the amount if the appeal succeeds. 27. On the issue of undue delay, the judgment was delivered on 22nd March 2024, and the Applicant filed the present application on 15th October 2024, following an unsuccessful attempt to secure a stay in the lower court on 11th October 2024. 28. The period between the judgment and the filing of this application is approximately 7 months, which could be considered inordinate. However, the Applicant explains that they were pursuing settlement negotiations and only resorted to this application after the Respondent proceeded with execution. 29. Courts have held that delay alone is not fatal if satisfactorily explained (RWW v. EKW [2019] eKLR). Given that the Applicant was engaging in negotiations and promptly moved to court when execution was imminent, the delay is not unreasonable in the circumstances. 30. On the issue of deposit of security for the due performance of the decree, the Applicant has expressed willingness to provide security, such as a bank guarantee or depositing the decretal sum in court. This is a critical factor under Order 42 Rule 6(2)(b). https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19627/eng@2025-05-02 5

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31. In the case of Focin Motorcycle Co. Ltd v. Ann Wambui Wangui & Another [2018] eKLR, the court held that: “ The purpose of security is to balance the interests of both parties—protecting the appellant from irreparable harm while ensuring the respondent is not prejudiced." 32. The offer of security mitigates any potential prejudice to the Respondent. 33. While the Respondent has a right to enjoy the fruits of judgment (Jaguar Land Rover Exports Ltd v. Kobil Petroleum Ltd [2022] eKLR), this right must be weighed against the Applicant’s right to a fair appeal. 34. The fact that the Applicant has filed an appeal and raised arguable grounds means that the court must ensure the appeal is not rendered nugatory (Stanley Kang’ethe Kinyanjui v. Tony Ketter & 5 Others [2013] eKLR). 35. I find that the Applicant has demonstrated substantial loss if execution proceeds; 36. Further, that the delay in filing the application is not inordinate given the circumstances and the offer of security sufficiently protects the Respondent’s interests. 37. Orders are accordingly granted follows; 38. i. That stay of execution of the judgment/decree in Voi CMCC No. 52 of 2022 is hereby granted pending the hearing and determination of Voi High Court Civil Appeal No. E057 of 2024. ii. That the Applicant shall deposit Kshs. 1,672,447 (the outstanding decretal sum) in Court within 30 days of this date. iii. Failure to comply shall automatically lift the stay. The costs of this application shall abide the outcome of the appeal. DATED, SIGNED AND DELIVERED THIS 2ND DAY OF MAY 2025 VIRTUALLY VIA MTAT VOI HIGH COURT. ASENATH ONGERI JUDGE In the presence of:Court Assistants: Maina/Millicent https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19627/eng@2025-05-02 6

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