Green Span Agritech Africa Ltd & 1 other v Margaret Mukuhi Kimura (suing As The Legal Representative of The Estate of James Nganga - Deceased)

3. i. That, the trial Court delivered its Judgment on 8th October, 2024 in Nakuru CMCC No. E945 of 2021; Margaret Mukuhi Kimura (Suing as the legal representative of the Estate of James Nganga (deceased) v Greenspan Agritech Africa Ltd and John Mwangi Njuguna. ii. That, the Appellants/Applicants being aggrieved by the said Judgment preferred the appeal herein being Nakuru HCCA NO. E234 OF 2024. That, unless stay of execution is granted the appeal shall be rendered nugatory and a mere academic exercise. iii. That, the Plaintiff/Respondent has since requested for issuance of warrants and is liberty to proceed with execution and the Appellants are apprehensive that the Plaintiff/Respondent may move to execute the said Judgment/Decree any time from the today which will occasion the substantial injustice and irreparable loss to the Appellant. iv. That, in the foregoing, it would be prudent and in the interest of justice that this matter be set down for hearing on priority basis before the Honourable Duty Court and there be a stay of execution pending the hearing and determination of this Application v. That, the Appellants/Applicants are willing to furnish security for the due performance of the decree. vi. That, the Appellants/Applicants verily believe that the appeal has appreciable chances of success. vii. That, the Appellant/Applicant has moved this Honourable Court expeditiously, timeously and without any delay. viii. That, in the circumstances, it is only fair, just and expedient that stay of execution of the Judgment/Decree be stayed pending the outcome of the appeal. ix. That, the Appellant/Applicant is willing to comply with the orders of the court or any conditions that may be imposed. x. That, in the circumstances, it would be prudent and in the interest of justice that further proceedings herein, including execution proceedings, be stayed pending the outcome of the appeal. The Applicants did not comply with the court’s directions in filing of its written submissions. Respondent’s Submissions On the 1st issue as to whether the present application is properly before the court? 4. The Appellants previously filed a similar application for stay before the trial court, which was dismissed on 7th August, 2025. Instead of appealing against that ruling, they rushed to this Court with a fresh application, essentially giving themselves a second bite at the cherry. 5. In the case of Mburu Kinyua v Gachini Tuti (1978) K.L.R. 69 “ the majority of this court held that a second application to set-aside a judgement entered ex-parte would be res-judicata when the fact upon which it was based were known to the appellant." 6. That the law is clear that once a trial court has rendered itself on an interlocutory application, the remedy lies in an appeal or review-not in filing an identical application before the appellate https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/688/eng@2026-01-27 2

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court. To allow such practice would encourage forum shopping and undermine the finality of interlocutory decisions. In Uhuru Highway Development Limited v Central Bank of Kenya 2 others 1996KECA102(KLR) “ Law J. A. put the matter in its proper perspective when he said: "To sum up my view of this aspect of the case, an applicant whose application to set aside an ex parted judgement has been rejected has a right of appeal. Alternatively, he may apply for a review of the decision, under section 80 of the Civil Procedure Act. He can only successfully file a second application if its is based on facts not known to him at the time he made the first application. It the facts were known to him, his second application will be dismissed as res judicata, as happened here. The position otherwise would be intolerable. A decree-holder could be deprived of the benefit of his judgement by a succession of applications to set aside the judgement and judges would in effect be asked to sit an appeal over judges. As regards Madan J. A's expressed feeling that justice can only be done by giving the appellant the right to defend, I would respectfully point out that there are always two aspects to the concept of justice. A successful litigant is convinced that justice has been done, the loser is unlikely to share that view." On the 2nd issue as to whether the conditions for stay under Order 42 Rule 6 CPR have been mеt? 7. That Order 42 Rule 6(2) Civil Procedure Rules sets out three mandatory conditions: i. The applicant must show sufficient cause; ii. The applicant must demonstrate substantial loss if stay is not granted; iii. The applicant must offer security for the due performance of the decree. iv. The application must be sought without undue delay. 8. The Appellants have failed on all fronts: No sufficient cause: They have not shown any legitimate ground warranting stay beyond their dissatisfaction with the lawful execution. 9. No substantial loss: Their claim that the attached vehicles are "tools of trade" is unsupported by evidence. As held in Kenya Shell Ltd v Kibiru [1986] KLR 410 “ It is not sufficient by merely stating that the sum of Shs 20,380.00 is a lot of money and the applicant would suffer loss if the money is paid. What sort of loss would this be? In an application of this nature, the applicant should show the damages it would suffer if the order for stay is not granted. By granting a stay would mean that status quo should remain as it were before judgment. What assurance can there be of appeal succeeding? On the other hand, granting the stay would be denying a successful litigant of the fruits of his judgment. The applicant has not given to court sufficient materials to enable it to exercise its discretion in granting the order of stay." 10. No security offered: They have not proposed any form of security for the due performance of the decree, which is a mandatory requirement. On the 3rd issue as to Whether Commencing with Execution Process Was Lawful? 11. That the attachment carried out on 7th August, 2025 was pursuant to lawful warrants issued by the lower court. Allegations of "expired warrants" and "failure to issue proclamation “are baseless, as the warrants of attachment and sale were issued on 2nd December, 2024 and had an expiry of 2nd December,2025 for the warrants of attachment and 2nd December, 2025 for the warrants of sale and https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/688/eng@2026-01-27 3

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the Appellants had been served with a proclamation notice dated 2nd December, 2025. Execution of the same was halted by interim stay orders issued on 5th December, 2024 time stopped running for a period of 8 months until 7th August, 2025 when the lower court dismissed their application. The warrants and proclamation notice were still in force and valid. 12. It is settled law that execution proceedings can only be challenged before the executing court, not through a parallel application in the appellate court. It is established legal principle, supported by both the procedural framework and judicial precedents, that objections or challenges to execution proceedings must be raised with the executing court itself. This principle ensures the efficiency of the judicial process, preventing attempts to bypass the specific court handling the execution through new, parallel applications in the High Court. The executing court is empowered by law to resolve any issues arising during the enforcement of a decree. On the 4th issue as to Whether the Appellants are engaging in forum shopping and multiplicity of applications? 13. The record shows that the Appellants have filed a similar application for stay orders dated 31st October 2024 this honourable court did not grant stay but instead issued directions for hearing of the application on merit. Subsequently, the Appellant filed a similar application before the lower court dated 19th November 2024 the court gave directions for hearing of the application but did not grant the stay orders sought. Dissatisfied with the courts directions the Appellant filed another similar application dated 21st November, 2024 in which the court gave a date for directions, but again did not grant the prayers granted. The Appellant instead of pursuing the application they had filed before this court, withdrew it on 28th November 2024. 14. The appellant has again come before this court with the instant application for stay orders after the application for stay in the lower court dated 19th November 2024 was dismissed. The multiple overlapping applications that have been filed before both the High Court and the lower court then strategically withdrawing then re-filing them whenever convenient amounts to forum shopping and an abuse of court process. 15. In Shvji Jadva Parbat & 2 others v Attorney General & 3 others 2017KEHC8819(KLR) (1), Judge John M. Mativo in his Ruling stated; “ Given the striking similarity of the reliefs sought in the application pending in the court of appeal and the present application, crucial questions do arise such as whether it is open for the applicants to file two identical applications in two different courts, namely, the court of appeal and this court seeking identical reliefs and whether such conduct amounts to abuse of court process. 16. That the concept of abuse of court/judicial process is imprecise. It involves circumstances and situation of infinite variety and conditions. It is recognized that the abuse of process may lie in either proper or improper use of the judicial process in litigation. However, the employment of judicial process is only regarded generally as an abuse when a party improperly uses the issue of the judicial process to the irritation and annoyance of his opponents. [3] The situations that may give rise to an abuse of court process are indeed in exhaustive, it involves situations where the process of court has not been or resorted to fairly, properly, honestly to the detriment of the other party. However, abuse of court process in addition to the above arises in the following situations: https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/688/eng@2026-01-27 4

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17. (a) Instituting a multiplicity of actions on the same subject matter, against the same opponent, on the same issues or multiplicity of actions on the same matter between the same parties even where there exists a right to begin the action. (b) Instituting different actions between the same parties simultaneously in different court even though on different grounds. (c) Where two similar processes are used in respect of the exercise of the same right. (d) Where an application for adjournment is sought by a party to an action to bring another application to court for leave to raise issue of fact already decided by court below. (e) Where there no iota of law supporting a court process or where it is premised on recklessness. The abuse in this instance lies in the inconvenience and inequalities involved in the aims and purposes of the action. [4] (f) Where a party has adopted the system of forum-shopping in the enforcement of a conceived right. (g) Where an appellant file an application at the trial court in respect of a matter which is already subject of an earlier application by the respondent at the Court of Appeal. (h) Where two actions are commenced, the second asking for a relief which may have been obtained in the first. [5]" The Respondent contends that the Appellants' application is an abuse of court process, fails to meet the threshold under Order 42 Rule 6, and is intended to frustrate the Respondent from enjoying the fruits of judgment therefore prays that the application be dismissed with costs to the respondent and execution to proceed as per the valid warrants on record. Analysis & Determination 18. That the conditions to be met before stay is granted is provided by Order 42 Rule 6(2) as follows:“ No order for stay of execution shall be made under sub rule (i)" Unless:The court is satisfied that substantial loss may result to the applicant unless the order is made. 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. 19. The court of appeal in Buttv Rent Restriction Tribunal(1982) KLR 417 gave guidance on how a court should exercise discretion and held that: “ The power of the court to grant or release an application for stay of execution is a discretionary power. The court in exercising its discretion whether to grant or refuse an application for stay will Consider the special circumstances of the case and unique requirements. The court in exercising its powers under order XLI Rule 4(2)(b) of Civil Procedure Rules can order security upon application by either party or on its own motion. Failure to put security for costs as awarded will cause the order for stay of execution to lapse". https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/688/eng@2026-01-27 5

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20. The court shall preoccupy itself to the preconditions for granting stay of execution where there exists a judgment legally entered in favour of one party against the other and the Appellant offers to deposit the entire decretal sum to the court. 21. In the case of Gianfranco Manenthi & Another v. Africa Merchant Assurance Company Ltd [2019] eKLR, the court thus held that:“ … the applicant must show and meet the condition of payment of security for due performance of the decree. Under this condition a party who seeks the right of appeal from money decree of the lower court for an order of stay must satisfy this condition on security. In this regard, the security for due performance of the decree under order 42 rule 6(1) of the Civil Procedure Rules, it is trite that the winner of litigation should not be denied the opportunity to execute the degree in order to enjoy the fruits of his judgment in case the appeal fails. 22. Further, Order 42 should be seen from the point of view that a debt is already owed and due for payment to the successful litigant in a litigation before a court which has delivered the matter in his favour. 23. This is therefore to provide a situation for the court that if the Appellant fails to succeed on appeal there could be no return to status quo on the part of the plaintiff to initiate execution proceedings where the judgement involves a money decree. The court would order for the release of the deposited decretal amount to the respondent in the appeal … Thus the objective of the legal provisions on security was never intended to fetter the right of appeal. It was also put in place to ensure that courts do not assist litigants to delay execution of decrees through filing vexatious and frivolous appeals. In any event, the issue of deposit of security for due performance of decree is not a matter of willingness by the applicant but for the court to determine 24. Accordingly, I hereby disallow the Application dated 7th August 2025 for want of merit, and dismiss the same, with costs to the Respondent. 25. However, this court as a court of equity and in balancing the interests of the parties is inclined to direct as follows: a. A Conditional order of stay against execution is hereby issued against judgment and consequent decree in Nakuru CM’ Court CC No. E 945 of 2021Margaret Mukuhi Kimura (Suing as legal representative of the Estate of James Nganga (deceased)vGreenspan Agritech Africa Ltd and John Mwangi Njuguna, pending the hearing and determination of the Appeal. b. The Applicants shall Pay to the Respondent, 50% the assessed Decretal sum in Nakuru CM’ Court CC No. E 945 of 2021 Margaret Mukuhi Kimura (Suing as legal representative of the Estate of James Nganga (deceased) v Greenspan Agritech Africa Ltd and John Mwangi Njuguna, of Kshs 3,386,050/=within thirty (30) days of this Ruling; c. The Applicants shall deposit in Court, 50% 50% the assessed Decretal sum in Nakuru CM’ Court CC No. E 945 of 2021 Margaret Mukuhi Kimura (Suing as legal representative of the Estate of James Nganga (deceased) v Greenspan Agritech Africa Ltd and John Mwangi Njuguna, of Kshs 3,386,050/=within thirty (30) days of this Ruling; d. The Respondent’s shall have costs of the Application assessed at Kshs. 20,000 to be paid within thirty (30) days of this Ruling; https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/688/eng@2026-01-27 6

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e. In the event of default of (b) or (c) above, The Conditional Order granted shall automatically lapse, and the Respondent shall be at liberty to execute; f. The Appellants shall file and serve a record of appeal within sixty (60) days of this Ruling; SIGNED, DATED AND DELIVERED AT NAKURU ON THIS 27TH DAY OF JANUARY 2026 ........................................ MOHOCHI S. M. JUDGE https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/688/eng@2026-01-27 7

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