Kibanya v Ayieko & another (Civil Appeal E098 of 2025) [2026] KEHC 5300 (KLR) (24 April 2026) (Ruling) Neutral citation: [2026] KEHC 5300 (KLR) REPUBLIC OF KENYA IN THE HIGH COURT AT KISUMU CIVIL APPEAL E098 OF 2025 A MABEYA, J APRIL 24, 2026 BETWEEN PATRICK KIBANYA ............................................................................... APPELLANT AND RAYMOND AYIEKO ..................................................................... 1ST RESPONDENT BRITS FREIGHTERS LIMITED ................................................. 2ND RESPONDENT RULING 1. Before Court is Motion on Notice dated 4/11/2025 brought under inter alia, Order 42 Rule 6 of the Civil Procedure Rules. It is seeking a stay of execution of the warrants of arrest issued on 22/10/2025 and also of the decree herein pending appeal. 2. It is supported by the affidavit of Patrick Kibanya sworn on 10/9/2025. The grounds in support thereof are that there is a judgment passed on 21/4/2022 against the applicant. That the applicant had not participated in the proceedings leading to the said judgment. He had challenged the said judgment but by a ruling made on 27/3/2025, the challenge was dismissed. He has since preferred an appeal to this Court against that ruling. 3. That while the said appeal is still pending, the respondent took out a Notice to Show Cause why he should not be committed to civil jail. That the said Notice to Show Cause came up on 19/9/2025 for directions but the trial proceeded to make a ruling without hearing the parties. That submissions had not been filed. That if the stay is not granted, there would be a travesty of justice. That the decree would be executed without him having been heard. 4. The Motion was opposed vide the replying affidavit of Raymond Ayieko Opiyo sworn on 10/11/2025. He deposed that the applicant had applied for stay of execution vide an application dated 16/9/2025. That the said application was still pending and had not been heard. That is was therefore an abuse https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5300/eng@2026-04-24 1
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of the court process to once again seek a stay of execution of the judgment and decree in the present application. 5. That since the applicant had not prosecuted the previous application for stay, the respondent took out the Notice to Show Cause to execute his decree. That the Notice to Show Cause was fixed for directions on 22/10/2025 when the applicant failed to show cause and the trial court pronounced itself on the same. That consequently, warrants for the arrest of the applicant were properly issued. It was urged that the application be dismissed. 6. This is an application for stay. The two crucial prayers are prayer Nos. D and E: They are in the following terms: “ “ (1) That pending the hearing and determination of this appeal, this Honourable Court be pleased to issue an order of stay of execution and/or enforcement of the warrants of arrest issued by Honourble D. O. Onyango in Civil Suit No. 429 of 2019 – Raymond Ayieko Opiyo vs Patrick Kibanya and Britts Freighters Limited on the 22nd day of October, 2025 against the applicant. (2) That pending the hearing and determination of this appeal, this Honourable Court be pleased to issue an order of stay of execution of enforcing the whole of the judgment delivered by Honourable T. A. Odera in CMCC No. 429 of 2019 – Raymond Ayieko Opiyo vs Patrick Kibanya and Britts Freighters Limited on the 21st day of April, 2022.” 7. Section 6 of the Civil Procedure Act provides: “No court shall proceed with the trial of any suit or proceeding in which the matter in issue is also directly and substantially in issue in a previously instituted suit or proceeding between the same parties, or between parties under whom they or any of them claim, litigating under the same title, where such suit or proceeding is pending in the same or any other court having jurisdiction in Kenya to grant the relief claimed.” 8. From the foregoing, it is clear that this Court cannot properly entertain prayer No. E of the Motion. This is so because, there is still pending before this Court an application dated 16/9/2025 seeking a similar order. This Court cannot breach a clear provision of the law. That issue has been raised by the respondent and it cannot be ignored. That prayer is accordingly stayed. The Court will proceed to consider the remaining prayer of the Motion. 9. The prayer seeks the stay of the enforcement of the warrants issued against him on 22/10/2025 pending appeal. To allow the prayer as prayed would be to seek to stay the execution of the decree herein through the back door. The stay of decree is not the same as stay of the enforcement of the warrants of 22/10/2025. The grounds for seeking stay of the decree and stay of enforcement of those warrants are different. 10. From the record, it is clear that there is no appeal that has been preferred against the order of 22/10/2025. It cannot therefore be stayed pending appeal. The principles applicable for stay pending appeal under Order 42 Rule 2 of the Civil Procedure Rules are well known. Substantial loss, the nugatory principle, security for the due performance of the decree and timeous application. 11. Be that as it may, this is a Court of law. Where there is a breach of the law, this Court cannot fold its hand and turn to the other side. The applicant has alleged that the orders of 22/10/2025 were made https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5300/eng@2026-04-24 2
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pre-maturely. The matter had only come for directions on the sad date as to the filing of submissions or the hearing of the Notice to Show Cause. The Court made a final pronouncement on the Notice to Show Cause pre-maturely. 12. This fact was not denied by the respondent. Indeed, in paragraph 8 of his replying affidavit, the respondent states: “ That I know of my own knowledge that my Notice to Show Cause was fixed for directions on the 22nd October, 2025 when the applicant failed to show cause and the trial magistrate proceeded to pronounce its ruling and issued orders for warrants of arrest against the applicant. (Attached and marked ‘RAO4’ is a copy of the Ruling dated 23/10/2025).” 13. It is trite law that no substantive orders can be made on a mention date or when the matter is scheduled for administrative directions. If substantive orders, that may affect the rights of the parties, are made on such an occasion, it would be a violation of the parties’ right to a fair hearing. See Cheserem vs Miriga (2023) KEHC 23821 (KLR) and Wanjiku vs Esso Kenya Ltd (1995 – 1998) 1 EA 332 CAK. 14. In the present case, it is clearly admitted that the matter had come up for directions before the trial court on 22/10/2024. However, the trial court proceeded and made substantive orders on the Notice to Show Cause. That clearly prejudiced the applicant. 15. Accordingly, the order that commends itself to the Court is to set aside the orders of 22/10/2025 and allow the NTSC to be heard on merit by allowing the parties to submit on it. There will be no order as to costs. It is so ordered. DATED AND DELIVERED AT KISUMU THIS 24TH DAY OF APRIL, 2026. A. MABEYA, FCI Arb JUDGE https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5300/eng@2026-04-24 3
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