Divyesh Indubhai Patel & 2 others v United Credit Limited

and DSQ Nos. 10A and 10B) [the suit property], pending the hearing and determination of the intended appeal. 5. This Honourable Court be pleased to issue such further or other orders as may be just in the circumstances. 6. The costs of this application be provided for.” 3. The application was premised on the plaintiffs’ grievance with the ruling delivered on 19/6/25 dismissing their application for a temporary injunction, despite the existence of serious and arguable questions regarding the validity of the statutory notices issued by the defendant. 4. The plaintiffs stated that they had lodged a notice of appeal and contended that the intended appeal raised bona fide and arguable issues deserving determination by the Court of Appeal. They asserted that, absent a stay, the defendant was likely to proceed with the statutory sale, thereby rendering the appeal nugatory as the suit property would be irretrievably lost. 5. The plaintiffs further stated that the suit property was their family and matrimonial home and that its sale would cause substantial and irreparable loss not compensable by damages. They faulted the court for failing to address procedural irregularities arising from the defendant’s filing and reliance on a Further Affidavit without leave and without service, which introduced material evidence in violation of procedural rules and prejudiced their right to a fair hearing. 6. It was also contended that the court erroneously validated the defendant’s attempt to cure defective statutory notices during the pendency of the suit without affording the plaintiffs an opportunity to challenge the same. 7. Additionally, the plaintiffs maintained that the defendant had not complied with mandatory legal requirements, including issuance of a 45-day redemption notice under the Auctioneers Rules and compliance with section 97 of the Land Act through a proper valuation. 8. They averred that the application had been made timeously and urged that, in the interests of justice, the suit property be preserved pending the determination of the appeal to safeguard their right of appeal and prevent irreversible prejudice. 9. In opposition, the respondent filed a replying affidavit sworn on 15/7/2025. The deponent, a director of the defendant, averred that the defendant advanced a loan of Kshs. 60,000,000 to the 3rd plaintiff, which loan was guaranteed by the 1st and 2nd plaintiffs. He averred that the 3rd plaintiff fell into arrears, a fact admitted by the plaintiffs, and that the defendant consequently issued a proper statutory notice under section 90 of the Land Act. He denied that the initial statutory notice was omnibus and stated that a second statutory notice was issued on 5/3/25. 10. He further deposed that the court granted the defendant leave on 1/4/25 to file a further affidavit, which was duly filed and deemed proper. He acknowledged that the plaintiffs alleged non-issuance of a 45-day redemption notice and lack of a valuation report, and confirmed that the court dismissed the Plaintiffs’ injunction application on 19/6/25. Thereafter, the defendant procured a valuation report dated 23/6/25 in compliance with section 97(2) of the Land Act and instructed auctioneers who issued a 45-day redemption notice. 11. The deponent stated that, as advised by counsel, there was no positive order capable of being stayed following the ruling of 19/6/25. He reiterated that the plaintiffs had admitted being in arrears and contended that it was fair and just for the defendant to realise the charged property in order to recover the outstanding loan. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/1090/eng@2026-01-29 2

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12. The defendant filed a further affidavit sworn on 29/7/2025 by its director. He deposed that the 3rd plaintiff had filed Magistrates’ Court Civil Case No. MCCOMMSU/E865/2025, Equip Agencies Limited v United Credit Limited, without disclosing the existence of the present suit, and had obtained interim injunctive orders therein. He further stated that the said suit was filed on 3/7/25, after this court had dismissed the plaintiffs’ injunction application on 19/6/25. Analysis and determination 13. Both parties filed their written submissions dated 29th July 2025, which I have duly considered together with the pleadings filed by the parties. 14. By its Ruling of 19th June 2025, this Court dismissed the Applicants’ injunction application of 12th February 2025. The Applicants now seek to “stay” that dismissal pending appeal. 15. Jurisprudence is settled that negative orders (those that do not command a party to do or refrain from doing anything) are not amenable to stay because there is “nothing to stay.” See the case of Stephen Nzue Mwanthii & 2 Others v Elizabeth Mukami (Civil Appeal (Application) E124 of 2024) [2024] KECA 624 (KLR), where the Court of Appeal reaffirmed that a dismissal order is incapable of stay, and that any execution only lies as to costs. 16. In the instant matter, the prior ruling simply dismissed the Applicants’ application; it did not order the Applicants to perform or restrain any act. Applying the above principle, the prayer for stay pending appeal directed at a negative order is misconceived and cannot therefore issue. 17. While Applicants invoke Order 42 Rule 6 and argue substantial loss and nugatory appeal, that rule presupposes an order or decree capable of performance and hence capable of delay. 18. Accordingly, the prayer seeking “stay of execution” of the 19th June 2025 dismissal by this Court is therefore not meritorious and must therefore fail. 19. The Applicants alternatively seek conservatory orders to preserve the charged property (I.R. No. 135319) pending appeal, grounding their plea on alleged non-compliance with Sections 90, 96, and 97 of the Land Act, absence of proper service of redemption/valuation, and risk of irreparable harm should a sale proceed. They rely on decisions emphasizing preservation of the substratum of disputes to avoid rendering appeals nugatory. 20. I am mindful that even where a stay of a negative order cannot issue, the Court retains discretion under its inherent jurisdiction and the overriding objective to preserve subject matter in appropriate circumstances. 21. In this case, the Applicants have cited authorities articulating the nugatory principle and preservation of substratum, and have expressed willingness to provide security. However, conservatory orders remain discretionary and turn on good faith, timeliness, material candor, and whether there exists a real and imminent risk of alienation in a manner contrary to law. 22. On the present record, several aspects militate against the exercise of discretion in the Applicants’ favour. First, the Court notes that the 3rd Applicant filed MCCOMMSU/E865/2025 (Equip Agencies Limited v United Credit Limited) in the Chief Magistrate’s Court on 3rd July 2025 and on 7th July 2025 obtained an ex parte interim injunction over the same property, allegedly without disclosure of this suit in the High Court. 23. The Defendant has exhibited the pleadings and interim orders from the Magistrate’s Court. The nondisclosure and pursuit of parallel injunctive relief in a different forum after this Court’s dismissal are https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/1090/eng@2026-01-29 3

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antithetical to this Court exercising its equitable relief. Equity aids the vigilant, not those who litigate in terrorem across multiple fora. 24. In any event, the Applicants already have an interim injunction from the lower court; therefore, granting a conservatory order in the present application would, in my view, be duplicative. 25. In light of this, the application as filed bears no merit and can only suffer the fate of being dismissed with costs awarded to the defendant. 26. It is so ordered. SIGNED, DATED, AND DELIVERED IN VIRTUAL COURT THIS 29TH JANUARY 2026 ADO MOSES JUDGE In the presence of: C/A – Moses Odegi…………..for the Applicant/Plaintiff Ochwo………….for the Respondent/Defendant https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/1090/eng@2026-01-29 4

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