Shah v Medivet Products Ltd & 2 others

by execution in the intervening period. The Court understood the application to be one seeking preservation of the position of the parties pending the Applicant's exercise of its right of appeal. 4. The Application was opposed by Ms. Adongo, Learned Counsel for the Plainti/Decree Holder. Counsel submitted that the matter has been before the Court on several occasions and that there was already a subsisting order of stay of execution issued prior to the hearing and determination of the Notice of Motion dated 9th July 2026. 5. Counsel therefore submitted that the Applicant was seeking a further stay notwithstanding the existence of an order which already stayed execution. The Court was urged to decline the Application, there being no basis for issuing another order of stay in respect of a process which was already subject to an existing stay. 6. The Court has considered the Oral Application, the submissions by Learned Counsel, the Ruling delivered on 16th September 2026, the circumstances in which the present Application has arisen and the applicable law. The Issue for Determination 7. The narrow issue for determination is whether, in the circumstances of this matter, the Court should grant a further stay of execution for thirty (30) days to enable the Objector/Applicant to pursue its intended appeal, notwithstanding the submission that there is already a subsisting order of stay of execution. Applicable Law 8. The jurisdiction of the Court to grant a stay of execution pending Appeal is principally governed by Order 42 Rule 6 of the Civil Procedure Rules, 2010. 9. Order 42 Rule 6(1) provides that an Appeal or second appeal does not operate as a stay of execution or proceedings under the decree or order appealed from, except in so far as the Court appealed from may order. The Court appealed from may, for sucient cause, order a stay of execution. 10. The Rule further recognises the jurisdiction of the appellate court to consider an application for stay. It provides, in material part, that whether an application for stay has been granted or refused by the Court appealed from, the Court to which the appeal is preferred is at liberty, upon application being made, to consider the application and make such order as may seem just. 11. Order 42 Rule 6(2) sets out the principal conditions upon which this Court may grant a stay. It provides that no order for stay shall be made unless: 12. a. The Court is satised 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 the decree or order as may ultimately be binding upon the Applicant has been given. The provisions of Sections 1A and 1B of the Civil Procedure Act, Cap. 21 are also relevant. Section 1A provides for the overriding objective of the Act and the Rules made thereunder, namely the just, expeditious, proportionate and aordable resolution of civil disputes. Section 1B imposes a duty upon the Court to further that overriding objective in the exercise of its powers. https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/936/eng@2026-09-23 2

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13. The Court's inherent jurisdiction is preserved under Section 3A of the Civil Procedure Act, which provides that nothing in the Act shall limit or otherwise aect the inherent power of the Court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the Court. 14. It follows from the statutory framework that the ling, or intended ling, of an appeal does not automatically stay execution. An Applicant must demonstrate sucient cause and satisfy the requirements prescribed under Order 42 Rule 6(2). Principles Governing Stay Pending Appeal 15. The principles governing the grant of stay of execution pending appeal are well settled. 16. In Butt v Rent Restriction Tribunal [1982] KLR 417, the Court of Appeal held that the power to grant or refuse a stay of execution is discretionary and that the discretion should be exercised in such a way as not to prevent an Appeal. The Court further recognised that the circumstances and special requirements of each case must be considered. 17. The principle in Butt does not, however, mean that every intended appeal automatically attracts a stay. Rather, the Court must exercise its discretion judicially and within the parameters established by Order 42 Rule 6. The Applicant must demonstrate sucient cause and satisfy the requirements of the Rule. 18. In Vishram Ravji Halai v Thornton & Turpin [1990] KLR 365, the Court of Appeal held that the High Court's jurisdiction to grant a stay pending appeal is circumscribed by the requirements contained in the applicable procedural rules. The Applicant must therefore satisfy the prescribed conditions before the discretion to grant stay can properly be exercised. 19. The requirement of substantial loss has repeatedly been emphasised by the courts. In Machira t/a Machira & Co. Advocates v East African Standard (No. 2) [2002] KLR 63, the Court made it clear that an Applicant must do more than merely state that substantial loss will result or that the intended appeal will be rendered nugatory. The Applicant must place before the Court sucient material upon which the Court can conclude that substantial loss is likely to occur. 20. The same principle was reiterated in James Wangalwa & Another v Agnes Naliaka Cheseto [2012] eKLR, where the Court held that the fact that execution has been put in motion, or is likely to be put in motion, does not by itself amount to substantial loss. Execution is a lawful process. The Applicant must demonstrate additional circumstances showing that execution would create a state of aairs that would irreparably aect or negate the essential core of the intended appeal. 21. In Equity Bank Ltd v Taiga Adams Company Ltd [2006] eKLR, the Court similarly considered the question of substantial loss and recognised that, in a monetary decree, an Applicant may need to demonstrate that recovery of the decretal amount would be dicult or impossible should the appeal ultimately succeed. 22. More recently, in Mathenge v Mahinda (Civil Appeal E060 of 2025) [2026] KEHC 4005 (KLR), the High Court reiterated that substantial loss is the cornerstone of an application for stay under Order 42 Rule 6. The Court further emphasised the need to balance the interests of the Applicant pursuing an appeal with those of the successful party who has obtained a judgment in its favour. 23. The same position is reected in Jackson Kaio Kivuva v Peninah Wanjiru Muchene [2021] KEHC 7713 (KLR), where the Court reiterated that an Applicant must demonstrate substantial loss, approach the Court without unreasonable delay and address the question of security. The Court further observed that the discretion under Order 42 Rule 6 is judicial and must be exercised according to the circumstances of each case. https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/936/eng@2026-09-23 3

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24. The Courts have consequently consistently held that the three requirements under Order 42 Rule 6(2) substantial loss, absence of unreasonable delay and security for due performance are important considerations in determining whether sucient cause has been demonstrated. Analysis and Determination 25. Applying the foregoing principles to the present matter, there is no dispute that the Applicant has a right to pursue an appeal against the decision delivered by this Court on 16th September 2026. The Court does not in any manner seek to curtail that right. 26. Indeed, the Court accepts the submission by Mr. Kiruki that the Applicant is entitled to take the necessary steps to exercise its appellate right. The concern that an appeal should not be rendered nugatory is a legitimate consideration in an application for stay. The Court of Appeal in Butt v Rent Restriction Tribunal recognised the importance of ensuring that the exercise of appellate jurisdiction is not rendered futile by execution in appropriate circumstances. 27. However, the right of appeal and the right to a stay of execution are not synonymous. The former does not automatically confer the latter. This is expressly recognised by Order 42 Rule 6(1), which provides that an appeal does not operate as an automatic stay. 28. The Applicant must therefore demonstrate sucient cause within the meaning of Order 42 Rule 6. In particular, it must demonstrate the substantial loss that would arise if the stay were not granted. 29. In the present case, the oral application was made immediately after delivery of the ruling. There is therefore no issue of unreasonable delay in relation to the present request. The diculty, however, arises from the other requirements of Order 42 Rule 6 and, more particularly, the circumstances surrounding the alleged existing stay of execution. 30. Ms. Adongo informed the Court that this matter has been before the Court on several occasions and that, even before the application dated 9th July 2026 was heard and determined, there was already a subsisting order of stay of execution. 31. The Court notes that this assertion has not been controverted by Mr. Kiruki. There has been no submission before the Court that the earlier stay had been discharged, vacated, set aside or had otherwise ceased to operate. 32. This is a material consideration. The Court is not being asked to grant a stay in circumstances where the Applicant is presently exposed to immediate execution without any protection. Rather, the Court is being asked to issue a further thirty (30) days' stay notwithstanding an existing stay order. 33. The Court must therefore ask whether there is any demonstrated basis for issuing an additional or parallel stay order. 34. In my view, the answer must be informed by the purpose of stay pending appeal. The purpose of a stay is to preserve the position of the parties where necessary so as to prevent substantial loss and to ensure that an appeal, if successful, is not rendered nugatory. Where an existing order of stay already aords such protection, the Applicant must demonstrate why a further order is necessary. 35. The Applicant has not demonstrated before this Court that the existing stay is inadequate to protect its intended appeal. No material has been placed before the Court showing that the Plainti/ Decree Holder has acted, or is about to act, in breach of the existing stay order. Neither has the Applicant demonstrated any particular circumstance which would make the existing order incapable of protecting its appellate rights. https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/936/eng@2026-09-23 4

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36. The submission that the intended appeal will be rendered nugatory if thirty days' stay is not granted cannot, in isolation, satisfy the requirement of substantial loss. As stated in Machira t/a Machira & Co. Advocates v East African Standard (No. 2), an Applicant must do more than merely assert that the appeal will be rendered nugatory. The Court must be placed in a position to assess the nature and extent of the prejudice alleged. 37. Similarly, in James Wangalwa & Another v Agnes Naliaka Cheseto, the Court emphasised that execution itself is a lawful process and does not constitute substantial loss merely because it has been threatened or commenced. 38. In the circumstances of the present case, the Applicant has not demonstrated that the subsisting stay does not adequately preserve the subject matter pending the exercise of its right of appeal. 39. The Court is also required to take into account the position of the successful litigant. The Plainti/ Decree Holder has obtained the benet of a decision of this Court and, as a general principle, is entitled to enjoy the fruits of that decision, subject to any lawful order staying execution. 40. In Machira t/a Machira & Co. Advocates v East African Standard (No. 2) [2002] KLR 63, the Court cautioned against focusing exclusively on the protection of the Intended Appellant while disregarding the rights of the successful party. The Court must strike a balance between the two competing interests. 41. That balance is particularly important here because the Plainti/Decree Holder is not seeking to execute in circumstances where the Applicant has no protection whatsoever. The Court has been informed that an existing stay order remains in force. 42. The Court must also have regard to the fact that the matter has, according to Ms. Adongo, been before the Court on several occasions. The overriding objective under Sections 1A and 1B of the Civil Procedure Act requires the Court to ensure that its processes facilitate the just, expeditious and proportionate resolution of disputes and do not result in unnecessary duplication of orders. 43. It would therefore not be appropriate, in the circumstances disclosed to the Court, to issue a second order of stay covering the same execution process without a demonstrated legal or factual necessity for doing so. 44. The Applicant's right to appeal remains fully preserved. Nothing in this ruling prevents the Applicant from ling its appeal within the prescribed period or from approaching the appellate court for appropriate orders under the law. 45. Indeed, Order 42 Rule 6(1) expressly recognises the jurisdiction of the appellate court to consider an application for stay whether the Application has been granted or refused by the Court appealed from. The Applicant therefore retains an avenue to seek such further relief as may be available before the Appellate Court. 46. The Court therefore nds that the Applicant has not demonstrated sucient cause for the grant of a fresh thirty (30) days' stay of execution, particularly in view of the uncontroverted submission that a subsisting stay already exists. 47. The Court emphasises that this conclusion should not be understood as a denial of the Applicant's right of appeal. The right of appeal is distinct from the question whether a further stay should issue. The Court has simply considered whether the circumstances disclosed justify the making of an additional stay order and has found that they do not. https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/936/eng@2026-09-23 5

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48. The Court is also satised that refusing the further stay does not, on the material presently before it, render the intended appeal nugatory, since the Applicant remains protected by the existing stay order, subject to its terms and duration. Conclusion 49. Having considered the Oral Application, the submissions of Mr. Kiruki and Ms. Adongo, the Ruling delivered on 16th September 2026, the provisions of Sections 1A, 1B and 3A of the Civil Procedure Act, Order 42 Rule 6 of the Civil Procedure Rules, 2010, and the authorities cited above, the Court nds no sucient basis for granting a further stay of execution. 50. The Court accordingly nds that the Applicant's right to pursue an appeal does not, in the circumstances of this case, justify the issuance of a further or parallel stay order for thirty (30) days, particularly where a subsisting order of stay was already in existence prior to the determination of the application dated 9th July 2026. Disposition a. Accordingly, the Oral Application by Mr. Kiruki, Learned Counsel for the Objector/ Applicant, for a further thirty (30) days' stay of execution is hereby declined. b. The parties shall abide by the terms of the existing/subsisting order of stay, subject to its terms and any further orders that may properly be issued by the Court or the Appellate Court. c. For avoidance of doubt, the Applicant's right to lodge and pursue an Appeal is not aected by this Ruling. 30 Days Right of Appeal. RULING DATED, READ, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI VIA MICROSOFT TEAMS PLATFORM THIS 23RD SEPTEMBER ,2026 ........................ L.A. MUMASSABBA PRINCIPAL MAGISTRATE 23. 9.2026 In the presence of : M/s Adongo Holding Brief for Mr.Ochwo for the Plainti M/s Christine Githii for Defendant Objector Applicant: Absent Court Assistant: Phoebe. https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/936/eng@2026-09-23 6

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