Dhabiti Sacco Limited (formerly Meru North Farmers Sacco) v Joses Kilongi Ncheene & 1 other

f. That the costs of this application be in the cause. 2. The application is propped by the grounds set out on its face and supported by the affidavit of one Jacob Kalawa the applicant’s Chief Executive Officer. 3. In a nutshell, the applicant’s case is that it has preferred an appeal against the ruling of the lower court delivered on 2nd October 2025, in which it had sought to have the judgment against it set aside. 4. That in its ruling the trial court dismissed the application. 5. That the applicant was never served with notice of the hearing of the main suit. That the appeal herein raises arguable grounds. That the fundamental rites of natural justice require that all parties to a suit be given a fair opportunity to be heard and the failure to notify the applicant of the hearing was a violation of the said rules. 6. The respondents opposed the application vide a replying affidavit sworn by Joan Kilongi the administrator of the estate of the 1st respondent. 7. In a nutshell, it is averred that the applicant has not met the requirements of order 42 rule 6 of the Civil Procedure Rules, in that it has not tendered any security for the decretal sum. 8. It is further averred that she is a person of means and is capable of refunding any amount paid to her in the event the appeal is successful. 9. It is further stated that the appeal herein lacks merit and has no chance of success. 10. Parties filed submissions which I will not rehash, but will refer to them where necessary. 11. It is important to note that on 11th November 2025, I delivered a ruling on the matter in which the execution of the decree of the lower court was carried out. I found that the warrants were irregularly issued and ordered the auctioneer to return the said warrants and release the attached goods. 12. Being an application for stay pending appeal, the court has to consider the same in light of the provisions of order 42 rule 6 of the Civil Procedure Rules which provides as follows:- (to cite). 13. The respondent points out that the applicant has not challenged the judgment of the court itself. 14. Indeed, the appeal is not against the judgment of the court but the ruling delivered on 2nd October 2025, where it dismissed the applicant’s application dated 2nd September 2024. That applicant had sought to set aside the judgment therein. 15. In my view, the appeal against that ruling is proper since the appellant/applicant’s issue is the failure to have that judgment set aside. 16. An order made by the trial court under order 12 rule 7 of the Civil Procedure Rules is appealable by right as provided for under order 43 rule 1 (h) of the Civil Procedure Rules. 17. Therefore, the appeal before the court is competent. 18. The appeal herein was filed on 6th October 2025 just 4 days after the ruling was delivered. There has been no delay in filing the same on the application in question of security. 19. I don’t think that the same would be applicable, since what is being challenged is the legality of the judgment itself. The court has a discretion on the issue of security in the right circumstances. In the instant case, I think that it would place unwarranted burden on the applicant. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6636/eng@2026-05-18 2

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20. Having considered the application, I find that the same is merited and allow it on the following terms: a. There shall be a stay of execution of the decree of the lower court pending the hearing and determination of the appeal. b. The appellant/applicant to file and serve the record of appeal in the next 30 days. c. The appeal shall be listed for directions on 23/06/2026. d. Costs of the application to abide by the outcome of the appeal. DATED, SIGNED & DELIVERED AT MERU THIS 18TH DAY OF MAY, 2026. H. M. NYAGA JUDGE https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6636/eng@2026-05-18 3

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