Amos Odhiambo v Esther Wanjiru Karanjah & 1 other

application. The application was however dismissed on 19th September 2025 and he was committed to civil jail for 30 days. 4. It is the applicant’s contention that he surrendered his motor vehicle, a lorry to the judgment creditor in execution of the decree of the court to recover the decretal sum and that the trial court has acknowledged the same in its impugned ruling but the vehicle has never been received back. 5. He deposes further that his arrest and detention in civil jail will limit his liberty and thereby be in violation his fundamental right and freedom. 6. Further that the trial court did not satisfy itself on the provisions of section 38 of the CPA on the requiriemt that the respondent had demonstrated that the appellant had the means to pay the judgment debt but was unwilling to do so. 7. After his arrest and committal to civil jail, the applicant filed the appeal herein through the memorandum dated 26th June 2025. On 8th July 2025 he filed an application in this court for stay of execution of the warrants of arrest and for his release from civil jail for reasons that he had been arrested on 8th July 2025 in execution of the warrants of arrest and was already in custody. That although he had filed an application dated 26th June 2025 before the trial court for stay of execution, the trial court had certified the application as urgent but failed to issue interim orders of stay of execution and fixed the application for mention on 10th July 2025. In the meantime, the trial court had signed the warrants for his arrest. As a consequence, he was arrested on 8th July 2025 and placed in custody thereby effectively causing him to start serving the civil jail term which he was contending was illegal. 8. This court noted that the application had been filed at the same time the application before the trial court was coming up for directions on 10th July 2025. This court gave directions on the hearing of the application and also directed that in the meantime the trial court will be given the opportunity to consider the application before it after which the applicant was at liberty to proceed with the prosecution of his application in this court. This court declined to issue interim orders at that time. 9. When the matter came up for mention on 23rd July 2025, learned counsel for the applicant Mr. Kowade informed the court that the application had been overtaken by events as the magistrate’s court had fixed a date for ruling on the application before it and in the meantime the applicant had been released from custody on bail. 10. On 19th September 2025, the applicant came back to this court with the present application for an order of stay execution of the orders of committal to civil jail. The trial court had dismissed the application before it on the same day 19th September 2025. This court granted him a temporary order of stay of execution upon his depositing in court the sum of KShs 100,000/= as security. 11. The application is opposed by the respondent through the replying affidavit of Esther Wanjiru Karanjah sworn on 6th October 2025. She deposes that they entered into a consent on 6th October 2022 on the manner in which the decretal sum would be liquidated but the applicant/ appellant failed to honour the same. 12. She acknowledges that the applicant’s motor vehicle, a lorry, was attached by Sure Auctioneers in execution of the decree upon the instructions of her then Advocates on record Messrs Maiyo, Mbugua & Cheruiyot Advocates. The advocates subsequently discovered that Sure Auctioneers had obtained a sum of Kshs. 116,000/= from the applicant without disclosing this material fact and they withdrew the instructions from Sure Auctioneers and directed them to return the motor vehicle to the applicant. 13. She deposes further that her said advocates then pursued the applicant and identified his property known as KWALE/RAMISI PHASE II/S.S 1018 for execution of the decretal sum but the applicant https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4528/eng@2026-02-09 2

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rushed to court and blocked the sale alleging that the respondent was still holding his vehicle. The trial court in a Ruling delivered on 27th October 2023 stayed the execution of the warrants of sale of immovable property issued then and directed Sure Auctioneers to file their returns. 14. She further personally visited the Kwale Land Registry on 12th September 2024 and established that even as the issue of execution was yet to be fully addressed, the applicant sold the aforesaid parcel of land on 22nd April 2024 to one Julius Miro Kimangu without satisfying the decree issued in Magistrates’ Court Civil Case No. E034 of 2022. That when the applicant appeared in chambers on 15th September 2024 he informed the then trial court in the presence of the respondent’s advocates on record that he would give the respondent the parcel of land to satisfy the decree. 15. The respondent deposes further that she has learnt that the applicant’s place of business initially known as Ukunda New Milimani General Hardware has now been changed to Mkwakwani General Hardware Limited owned by Dorothy Awuor Ogutu, who is his wife, with the business being registered on 15th July 2024. 16. It is the respondent’s case that from the foregoing, it is proof that the applicant has means of satisfying the decree in the lower court but he has refused to do so. 17. She deposes further that she is aware that committal to civil jail should be the option of last resort but that it is all the same a legal mode of dealing with difficult judgment debtors such as the applicant herein. 18. The application was heard by way of written submissions filed by learned counsel for the parties. Both learned counsels submit that the issue for determination is whether an order of stay of execution pending the hearing and determination of the appeal filed in Kwale HCCA No. E017 of 2025 should be granted. 19. I have considered the Notice of Motion application the grounds in support thereof, the supporting affidavit as well as the replying affidavit and the submissions by learned counsels together with the authorities cited. The issues for determination are whether the application has merit, what orders the court should issue and who bears the costs of the application. 20. Learned counsel for the applicant submitted largely on the appeal rather than on an application for stay of execution. 21. Learned counsel for the respondent submitted that the applicant had not satisfied the requirements for the grant of a stay of execution pending appeal. 22. Stay of execution pending appeal to the High Court is provided for under Order 42 Rule 6 of the Civil Procedure Rules 2010 as follows; “ (1) No appeal or second appeal shall operate as a stay of execution or proceeding under a decree or order appealed from except in so far as the court appealed from may order but, the court appealed from may for sufficient cause order stay of execution of such decree or order, and whether the application for such stay shall have been granted or refused by the court appealed from, the court to which such appeal is preferred shall be at liberty, on application being made, to consider such application and to make such order thereon as may to it seem just, and any person aggrieved by an order of stay made by the court from whose decision the appeal is preferred may apply to the appellate court to have such order set aside. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4528/eng@2026-02-09 3

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(2) 23. 24. 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.” From the foregoing provision of the law, it has been held that, the three conditions to be fulfilled for an order of stay pending appeal to issue are as below: (See for instance the case of Halai & another v Thornton & Turpin (1963) Ltd [1990] KECA 65 (KLR). a. that substantial loss may result to the applicant unless the order is granted. b. the application has been made without unreasonable delay. c. security as the court orders for the due performance of the decree. These principles are also enunciated in the case of Butt v Rent Restriction Tribunal [1979] KECA 22 (KLR) where the Court of Appeal, Madan, J.A. stated what ought to be considered in determining whether to grant or refuse stay of execution pending appeal. The court said that: a. The power of the court to grant or refuse an application for a stay of execution is discretionary; and the discretion should be exercised in such a way as not to prevent an appeal. b. Secondly, the general principle in granting or refusing a stay is, if there is no other overwhelming hindrance, a stay must be granted so that an appeal may not be rendered nugatory should the appeal court reverse the judge’s discretion. c. Thirdly, a judge should not refuse a stay if there are good grounds for granting it merely because, in his opinion, a better remedy may become available to the applicant at the end of the proceedings. d. Finally, the Court in exercising its discretion whether to grant or refuse an application for stay will consider the special circumstances and its unique requirements. The court in exercising its powers under Order XLI Rule 4(2) (b) of the Civil Procedure Rules, can order security upon application by either party or on its own motion. Failure to put security as ordered will cause the order for stay of execution to lapse. 25. It has also been held that the court, in exercising its discretion, should opt for the lower rather than the higher risk of injustice and finally the court will also consider the overriding objective as stipulated in sections 1A and 1B of the Civil Procedure Act, which the courts are now enjoined to give effect to. (See Machira T/A Machira & Co Advocates vs. East African Standard (No 2) [2002] KLR 63. 26. On whether or not the application had been filed without unreasonable delay, learned counsel for the respondent submits that the ruling and order the appellant seeks to stay was rendered on 23rd May 2025 whereas the present application was filed on 19th September 2025 almost four months after. She submits further that to this end, an application filed 119 days after the ruling or order was made is inordinate and goes beyond acceptable limits given the nature of the act to be performed. 27. I do not however find that submission to be correct. Whereas it is true that the substantive ruling giving rise to the order of issuance of the warrant of arrest was issued on 23rd May 2025, this court has set https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4528/eng@2026-02-09 4

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out above the chronology of events leading to the present application. Therefore, subsequent events including an application for stay of execution of that order was filed before the trial court and even another one before this court. This court directed that the application before the trial court be heard and determined first as it would not be appropriate to proceed with the two applications in the two courts concurrently even as the CPR provide that such an application can be filed in either court. The current application herein was filed on the very day that the ruling was delivered on 19th September 2025 by the lower court. There was no delay in filing the application. Therefore, I am satisfied and find that the application was filed within a reasonable time. 28. On the issue of whether or not substantial loss may result, the Court of Appeal, Platt Ag JA., in Kenya Shell Limited v Benjamin Karuga Kibiru & anorther [1986] KECA 94 (KLR) held that; "Substantial loss in its various forms is the corner stone of both jurisdictions for granting a stay. That is what has to be prevented. Therefore, without this evidence it is difficult to see why the respondents should be kept out of their money." 29. I note that all parties are agreed that the appellant surrendered his lorry in execution in satisfaction of the decree to the respondent’s agents, Sure Auctioneers, the 2nd respondents herein. There is also no dispute that the lorry has never been returned to the applicant and there is no indication that an account has been rendered to him. The 1st respondent said that it had instructed the 2nd respondent to return the lorry but there is no indication from the 2nd respondent that he had done so. The learned trial magistrate found that the applicant should have brought contempt of court proceedings against the 2nd respondent. I think the learned trial magistrate was not correct because contempt of court proceedings is instituted for willful breach or disobedience of a court order. A directive by a judgment creditor to her agent, the auctioneers, to carry out some instructions in a certain way is not a court order. 30. I am satisfied that the applicant has demonstrated that he will suffer substantial loss where he has surrendered his property to the judgment creditor in execution under such circumstances. 31. I am aware that the respondent has a decree in her favour and she is entitled to enjoy the fruits thereof. But the applicant also has his right to appeal. The court has to balance the interests of the applicant who is seeking to preserve the status quo pending the hearing of the appeal so that his appeal is not rendered nugatory and the interest of the respondent who is seeking to enjoy the fruits of her judgment. Balancing the two competing interests in this case, I find that the loss that would be suffered by the applicant would be substantial if the stay order is not granted. 32. However, this issue is evened out on the next requirement to be satisfied for stay of execution to issue that “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.” 33. The form of security to be provided is at the discretion of the court. The applicant herein has already at the ex-parte stage, deposited a sum of KShs 100,000/= in court as security. I will have him enhance that sum to KShs 500,000/= within the next 30 days from the date herein. 34. Consequently, I find that the application herein has merit and in order not to render the appeal herein nugatory, but at the same time ensuring that the respondent is assured of enjoying the fruits of her judgment should the appeal fail, the application is granted on the following conditions. a. Stay of execution of the ruling of the lower court dated 23rd May 2025 and ensuing order in Msambweni Magistrate’s Court Civil Suit No. E034 OF 2022 is granted pending hearing and determination of the appeal herein on condition that the applicant/appellant deposits in court, https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4528/eng@2026-02-09 5

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a total sum of KShs 500,000/= within the next 30 days noting that he had already deposited KShs 100,000/= at the interlocutory stage. b. The record of appeal is filed within 45 days from today. c. Failure by the applicant to abide by the condition (a) hereinabove this application will be deemed to have been dismissed and the respondent will be at liberty to execute. d. Costs of the application will abide by the appeal. 35. Orders accordingly. 36. Mention on 1st April 2025 before the DR to confirm compliance and filing of record of appeal. DELIVERED, DATED AND SIGNED AT KWALE ON THE VIRTUAL PLATFORM, TEAMS THIS 9TH DAY OF FEBRUARY 2026. ANDAYI W. F. JUDGE In the presence of: Marion (Ms) h/b for K'owade for the applicant. Njanja h/b for Kimani for the respondent. Ummu: Court Assistant. SIGNED BY/FOR: HON. JUSTICE ANDAYI W.F. HON. JUSTICE ANDAYI W.F. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4528/eng@2026-02-09 6

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