Michael Musyoki Sila v Binabdulmana Automobile Limited

Mombasa Remand Prison, which constituted double jeopardy and amounted to condemning the Appellant unheard contrary to rules of natural justice. That the Applicant being aggrieved by the orders made on 22nd May 2025 appealed to the court herein through the Memorandum of Appeal dated 22nd May 2025. 5. The Respondent filed a Replying Affidavit sworn on 30th May 2025 by Ali Abdalla Sheikh Omar, the Director of the Respondent, that the Respondent filed a suit against the Appellant and served them but they neither entered appearance nor filed defence. That judgment was entered and thereafter the statutory 10-days’ notice was issued. That the Respondent instructed an auctioneer to attach the Appellant’s office in Mombasa to recover the decretal amount in which they were only able to recover Kshs. 19,500. That the Respondent then filed a Notice to Show Cause against the Appellant where warrants of arrest were issued. 6. The Respondent further stated that on 24th June 2024 when the matter came up in court, parties recorded a consent where the Judgment Debtor was to liquidate the decretal amount in two instalments, the 1st on 30th August 2024 and the 2nd on 30th September 2024, and in default the Judgment debtor was to be committed to civil jail. 7. That the Appellant defaulted and his advocate informed the Respondent that he had ceased acting. That with a new advocate on record, there was an application and negotiations for liquidation of the decretal sum in instalments and parties recorded a consent. That warrants of arrest were again issued after the Appellant’s failure to fully comply with terms of the consent. That the Appellant then filed an application to block the warrants but the court declined to stay the arrest. The claim that payment of USD 90,000 had been paid was denied by the Respondent. 8. The application was canvassed by way of written submissions. The Appellant in their submissions dated 25th October 2025 argued that the Respondent’s claim of a balance is unsupported by documentary evidence and contradicted by the payment records, contrary to the holding in the case of ABN AMRO Bank N. V. v Kenya Pipeline Company Limited (2014) eKLR. That USD 90,000 and USD 70,625 were paid directly by the Appellant’s client (the consignee) while USD 7,000 and USD 3,967 were remitted by the Appellant, which fully extinguished the decretal sum and there was a huge overpayment. 9. That upon reconciliation of accounts, it was established that the Respondent was retaining sums over and above what was due which amounted to unjust enrichment and contrary to the doctrine of equity and fairness as was held in the case of Samuel Kamau Macharia v Kenya Commercial Bank Limited (2003) eKLR. The Appellant stated that the burden of proof lies with the Respondent to demonstrate indebtedness of the alleged USD 109,697 as set out in Kimani v Maina (Civil Appeal E007 of 2023) 2025 KEHC 4271 (KLR). 10. The Appellant submitted that the consent entered into on 7th October 2024 was a product of duress, coercion, misrepresentation and concealment of material facts. That at the time of execution, the Appellant was under threat of imprisonment and lacked access to crucial evidence confirming that substantial payments had been made directly by the consignee to the Respondent. 11. That a consent judgment can however be set aside if it is shown that it was not entered into freely and voluntarily as laid out in the case of Flora N. Wasike v Destimo Wamboko (1988) eKLR and Shiv Construction Company Limited v Mospa Limited & 6 others (Civil Suit 002 of 2022) [2023] KEHC 21551 (KLR) (2 August 2023) (Ruling). That the Respondent took advantage of the Appellant’s vulnerable position of being committed to civil jail and made no disclosure of the USD 70,625 and USD 90,000 from the consignee. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4267/eng@2026-02-12 2

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12. The Appellant argued that it is not in dispute that they engaged the Respondent under a Service/ Transport contract to facilitate movement of trucks from the port of Mombasa to the consignee, AZ (Tanzania), after customs clearance. That the Respondent acting as a transporter was to receive instructions exclusively from the Appellant and only release goods upon confirmation that payment had been received from the consignee through the Appellant. 13. That the Respondent’s act of soliciting and receiving payments directly from the consignee and releasing the consignment without the Appellant’s authority constituted a fundamental breach of contract and a breach of agency obligations. 14. The Appellant submitted that the Respondent’s actions were contrary to the principle of privity which requires each party to adhere strictly to contractual obligations and any deviation amount to repudiation of the contract. The Appellant relied on the holdings in Helia Hauliers Limited v East Africa Cargo Logistics Limited [2021] KEHC 3234 (KLR) and Mediterranean Shipping Co. SA v SA Freight Limited (Civil Appeal 88 of 2015) [2023] KEHC 518 (KLR) (30 January 2023) (Judgment). 15. That as was reiterated in the case of Mukuha v Waweru Munyi Jackson t/a Waweru Munyi & Co. Advocates (Civil Case E951 of 2021) [2022] KEHC 16682 (KLR), the Respondent as an agent owed fiduciary duty to the Appellant, to act within the authority of the principal and in good faith. That an agent who acts outside their authority omits breach of duty and may be liable for any resulting loss to the principal. 16. The Appellant argued that the Respondent’s actions led him to not only lose the consignee as a client but he has been unsuccessful in recouping his debt amounting to USD 266,000 from the consignee, which to date remains unpaid. The Appellant cited the case of Mwangi v Kiiru [1984] KECA 43 (KLR) where it was observed that when a party’s conduct goes against the express terms and spirit of a contract, the innocent party is discharged from further obligations under the agreement and is entitled to restitution. 17. The Respondent filed submissions dated 10th July 2025 and argued that the application for stay is a deliberate attempt to delay the execution process and that the principles guiding grant of stay of execution pending appeal are well settled in law under Order 42 Rule 6 (2) of the Civil Procedure Rules. The Respondent stated that it is the duty of the court to ascertain whether the 3 conditions for stay have been fulfilled before granting stay of execution. 18. That the Appellant has not shown whether he will suffer any substantial loss if the prayer for stay is not allowed. The Respondent relied on the case of Kenya Shell Limited v Kibiru (1986) KLR 410 and James Wangalwa & another v Agnes Naliaka Cheseto (2012) eKLR. 19. The Respondent submitted that the Appellant filed the application herein 7 months after the consent order was recorded on 7th October 2024. That the Appellant has not given sufficient reasons for the delay and that equity ought not to aid them as they have been indolent. 20. On security, the Respondent argued that the Appellant ought to furnish the court with security before they are granted stay of execution pending appeal. That the Appellant has neither offered security nor raised doubts as to the inability of the Respondent to repay the security. The Respondent drew guidance from the cases of Onesmus Mburu Njuguna v Samson Kitire Kuna (2007) eKLR and Gianfranco Manethi & another v Africa Merchant Assurance Company Ltd (2019) eKLR. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4267/eng@2026-02-12 3

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Analysis 21. 22. This court has considered the Notice of Motion application dated 22nd May 2025, the application dated 21st May 2025, the Replying Affidavit sworn on 30th May 2025 and submissions by the parties. The issues for determination are: a. Whether the application is merited for grant of stay of execution of the consent order made on 7th October 2024 and/or whether the committal of the Appellant to civil jail should be suspended. b. Whether there should be stay of further proceedings in Mombasa MCCC/E971/2023 pending the hearing and determination of the appeal. c. What orders on costs should issue. Conditions for grant of stay of execution are set out in Order 42 Rule 6 (2) of the Civil Procedure Rules as follows: No order for stay of execution shall be made under subrule (1) unless: a. the court is satisfied that substantial loss may result to the applicant unless the order is made and that the application has been made without unreasonable delay; and b. 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. 23. On the one hand, the Appellant in their submissions on the applications for stay did not expressly discuss the conditions for grant of the orders as provided above. The Appellant rather discussed differences in the dealings with the Respondent that led to his current predicament. This court however desists from delving into those issues as it would amount to determining merits of the appeal which this court is not allowed to do at this stage. 24. The Respondent on the other hand were of the view that the Appellant did not show whether he will suffer any substantial loss if the prayer for stay is not allowed, that the Appellant has not given sufficient reasons for the delay and that the Appellant has neither offered security nor raised doubts as to the inability of the Respondent to repay the security. 25. The threshold for the order of stay of execution to issue were echoed in the case of James Wangalwa & another v Agnes Naliaka Cheseto (2012) eKLR as follows: “ …it is evident that the power to grant stay of execution pending appeal is an exercise of the discretion of the court on sufficient cause being shown by an Applicant that substantial loss may result to the Applicant if the order is denied; the application is made without inordinate delay and on provision of such security as the court may impose for the due performance of any decree or order as may ultimately be binding on the Applicant.” 26. The Appellant has failed to demonstrate the loss he would suffer if the stay orders are not granted. On delay, the Appellant filed this application, 7 months after the consent was filed. The submission that the consent was signed by the Appellant out of duress is an afterthought as if that was the case, nothing stopped the Appellant from filing this application with no delays. On security, the Appellant has not offered any security as a condition for stay of execution. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4267/eng@2026-02-12 4

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27. This court finds that the conditions for grant of stay of execution pending appeal have not been met by the Appellant. The prayer for an order of stay therefore fails. 28. On whether there should be stay of further proceedings pending the hearing and determination of the appeal, Ringera J in the case of Global Tours &Travels Limited, Nairobi HC Winding Up Cause No. 43 of 2000 persuasively stated: “ As I understand the law, whether or not to grant a stay of proceedings or further proceedings on a decree or order appealed from is a matter of judicial discretion to be exercised in the interest of Justice ... the sole question is whether it is in the interest of justice to order a stay of proceedings and if it is, on what terms it should be granted. In deciding whether to order a stay, the court should essentially weigh the pros and cons of granting or not granting the order. And in considering those matters, it should bear in mind such factors as the need for expeditious disposal of cases, the prima facie merits of the intended appeal, in the sense of not whether it will probably succeed or not but whether it is an arguable one, the scarcity and optimum utilization of judicial time and whether the application has been brought expeditiously.” 29. It is not in dispute that a consent judgment was entered on 7th October 2024. There is no evidence of coercion in signing of the consent. There is therefore nothing left to stay as the dispute has been conclusively resolved by agreement of the parties and proceedings have effectively come to an end. 30. It is the considered opinion of this court that the issues raised by the Appellant can now be fully canvassed and settled in the appeal. 31. On costs, there is no reason to deny the Respondent costs. The same is awarded. Determination 32. In the upshot, this court makes the following orders – a. The Notice of Motion dated 22nd May 2025 lacks merit and is hereby dismissed. b. Costs awarded to the Respondent. DATED, SIGNED AND DELIVERED VIRTUALLY AT MOMBASA THIS 12TH DAY OF FEBRUARY, 2026 ...................... HON. F. WANGARI JUDGE OF THE HIGH COURT In the presence of: Mr. Kimathi Advocate for the Applicant N/A by the Respondent Ms. Salwa, Court Assistant https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4267/eng@2026-02-12 5

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