High Court 13231 of 2026

would be at liberty to repossess the tractor with the assistance of the Officer Commanding Station (OCS), Matutu Police Station. Upon considering the application, the learned Magistrate granted the orders sought and directed the Appellant to surrender the tractor within seven days, with liberty to the Respondent to repossess it through police assistance in default of compliance. 3. The Appellant challenges those orders on the basis that they were made on an erroneous factual premise. According to the application and the Memorandum of Appeal, the suit tractor had already been repossessed on 18th May 2018 by Pavement Auctioneers acting on behalf of the Respondent pursuant to earlier repossession proceedings. In support of that assertion, the Appellant has exhibited, among other documents, a proclamation dated 18th May 2018 and a court order issued in Winam SRM Miscellaneous 99 of 2018 authorising repossession. It is contended that, if possession had already passed to the Respondent through its agents, the subsequent order directing the Appellant to surrender the same tractor was incapable of performance and was therefore made in error. 4. The Appellant further contends that more than two-thirds of the purchase price had been paid and that the learned magistrate failed to appreciate the legal effect of section 20

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of the Consumer Protection Act. Those matters form part of the grounds advanced in support of the appeal. 5. The application is resisted through the Replying Affidavit sworn on 23rd July 2026 by the Respondent's Managing Director. The Respondent maintains that the Appellant defaulted in payment of the agreed purchase price, denies that two-thirds of the purchase price had been settled and disputes the assertion that the tractor had already been repossessed in the manner alleged. The Respondent further contends that the Appellant has not demonstrated any of the conditions necessary for the grant of a stay pending appeal and urges that the application be dismissed with costs. 6. The application presents an unusual situation. Ordinarily, an applicant seeking a stay of execution contends that the decree or order is capable of imminent enforcement and that, unless stayed, the intended appeal would be rendered nugatory. In the present case, however, the Appellant advances a different case. His principal contention is that the impugned orders are incapable of implementation because the suit tractor had already been repossessed by the Respondent through its auctioneers on 18th May 2018, several years before the ruling appealed against was delivered. He therefore maintains that the learned Magistrate proceeded on an erroneous factual premise in directing him

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to surrender property which, according to him, was no longer in his possession. 7. The Appellant's application proceeds on a singular premise. He maintains that the suit tractor had already been repossessed by the Respondent on 18th May 2018, long before the learned Magistrate directed him to surrender it. In support of that contention, he has exhibited documentary material which, he argues, demonstrates that the impugned orders were founded on an erroneous factual premise. Whether that contention is ultimately borne out by the evidence is a matter that falls for determination in the appeal. 8. The issue before this Court is, however, a different one. The Court is concerned only with whether the Appellant has brought himself within the ambit of Order 42 Rule 6 of the Civil Procedure Rules, whose purpose is to suspend the execution of an executable decree or order pending appeal. 9. Viewed through that prism, the Appellant's own case presents a fundamental difficulty. If, as he contends, the Respondent had already repossessed the suit tractor years before the impugned ruling was delivered, then the order requiring him to surrender it had, on his own case, already been overtaken by events. His grievance is therefore directed, not at the

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execution of the order, but at the factual premise upon which it was made. 10. That distinction is significant for the treason that the remedy of stay is intended to suspend the future enforcement of an executable order. It is not available where, on the applicant's own case, the order sought to be stayed has already ceased to have practical utility. As the Court of Appeal observed in Tanzania Roads Agency v Kundan Singh Construction Ltd & Another [2013] KECA 151 (KLR), courts do not issue orders in vain, and where events have overtaken the relief sought there may be "hardly anything left in the proceedings to stay. 11. The Appellant's contention that the learned Magistrate proceeded on an erroneous factual premise may well constitute a proper ground of appeal if ultimately established. It does not, however, provide a basis for the grant of a stay of execution under Order 42 Rule 6 of the Civil Procedure Rules. 12. Accordingly, the Notice of Motion dated 12th June 2026 is unmerited and it is hereby ordered as follows: 1) The Notice of Motion dated 12th June 2026 is dismissed.

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2) The Appellant shall prepare, file and serve the Record of Appeal within thirty (30) days from the date of this ruling. 3) Upon service of the Record of Appeal, the Appellant shall file and serve written submissions within fourteen (14) days. 4) The Respondent shall file and serve its written submissions within fourteen (14) days of service of the Appellant's submissions. 5) The matter shall be mentioned before the Deputy Registrar on 12th October 2026 to confirm compliance with these directions and for further directions regarding the hearing and determination of the appeal. 6) Costs of the application shall abide the outcome of the appeal. DELIVERED AT NYAMIRA THIS 2026 30th DAY OF July WAMAE.T. W. CHERERE JUDGE Appearances Court Assistant - Hilda For Appellant Advocates - Mr. Ombati for Ombati Otino Opondo & Awino

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For Respondent - Mr. Ndichu for Samuel Nyagaka Co. Advocates

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