Kimune v Wankuru

may execute the Decree of this court at any time rendering the intended appeal nugatory. 4. The plaintiff/respondent filed a replying affidavit sworn by himself on 19 th August, 2026 in opposing the application. The grounds are that there is no competent appeal on record against the judgment delivered on 17 th June 2026. That the defendant has neither filed a competent memorandum of appeal within the prescribed period nor obtained an order granting her leave to appeal out of time. That the applicant has not placed before the court any competent appeal upon which the application for stay can properly be anchored. 5. That an application for stay pending appeal under Order 42 Rule 6 of the Civil Procedure Rules presupposes the existence of an appeal. That the application is premature, misconceived and incompetent and the same ought to be dismissed in limine. That the applicant has not demonstrated that she stands to suffer substantial loss, that the application has been without unreasonable delay and that such security as may be ordered for the due performance of the decree has been provided. 6. That the applicant has not explained what specific loss she will suffer, how such loss will occur, or why such loss cannot be adequately remedied in law should her purported appeal ultimately succeed. 7. The application was canvassed by way of written submissions, which both parties filed. Determination Whether there is a competent appeal 8. This is an issue that has come out from the respondent’s response and submissions. The respondent stated that there is no competent appeal against the judgment of 17/6/2026 upon which the present application for stay can KEHANCHA SPMC ELC NO. E058 OF 2025 (RULING2) 2

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legally be anchored. The prescribed period for lodging an appeal lapsed and the applicant has neither demonstrated that a competent Memorandum of Appeal was lodged within time nor obtained leave to appeal out of time. 9. Counsel for the defendant/applicant submitted that the applicant first preferred a review of the orders of the court and has now filed an appeal, which is within the law. That the applicant sought for leave to against the ruling dismissing the application for review and leave was granted on the same date on 31/7/2026. 10.On this issue I’m guided by the Court of Appeal decision in the case of Rafiki Microfinance Bank Limited v Youth Enterprise Development Fund Board (Civil Appeal E222 of 2022) [2024] KECA 239 (KLR) (8 March 2024) (Judgment) where the Court of Appeal rendered itself as follows:“In this case, the appellant having sought to review the judgment and decree cannot now purport to appeal against the same after its review application was dismissed. It can only appeal against the ruling and order on its application for review made on 11th November 2021. Further and as we have already demonstrated, the notice and record of appeal in respect of the impugned judgment and decree were both filed way out of time. We have said enough to demonstrate that the appeal against the judgment and decree before us is incompetent. We believe that the proper appeal before us, is the appeal against the ruling and order of Majanja, J dated 11th November 2021 and that is the appeal we shall consider.” KEHANCHA SPMC ELC NO. E058 OF 2025 (RULING2) 3

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11.This is the same situation obtaining in our instant case and I am of the considered opinion that there is no competent appeal against the judgment delivered on 17/6/2026. The second issue for determination is whether the orders can be granted as drafted. 12.The application dated 12/8/2026 seeks for the main order as follows; “THAT there be stay of execution of judgment delivered in this matter on the 17.6.2026.” 13.My understanding for purposes of granting stay of a judgment, there must be something pending to be done, either determination of an appeal, review or an application to set aside. This means that a stay order cannot be issued without something pending to be done. In our instant case the applicant has not disclosed what is pending to be done in the order prayed. 14.Borrowing the words of Justice Magare and applying the same in our instant case in the case of Abdi Isaac Omar t/a Sabrin Shop v Highrise Commodities Limited (Civil Suit E278 of 2023) [2023] KEHC 23062 (KLR) (2 October 2023) (Ruling) where he rendered himself as follows: “The Application herein is an edifice built on nothing. There is no appeal or anything waiting to be done. Nothing can be added on it. To save the Application from the ignominy of its own incompetence the court must act judiciously and strike it out. The learned Judge cited the case of Machira t/a Machira & Co Advocates v East African Standard [2002] eKLR, the Honourable Court, Justice R.C.N KULOBA, as then he was, observed that: KEHANCHA SPMC ELC NO. E058 OF 2025 (RULING2) 4

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“To be obsessed with the protection of an appellant or intending appellant in total disregard or fliting mention of the so far successful opposite party is to flirt with one party as crocodile tears are shed for the other, contrary to sound principle for the exercise of a judicial discretion. The ordinary principle is that a successful party is entitled to the fruits of his judgement or of any decision of the Court giving him success at any stage. That is trite knowledge and is one of the fundamental procedural values which is acknowledged and normally must be put into effect by the way applications for stay of further proceedings or execution, pending appeal are handled. In the application of that ordinary principle, the court must have its sight firmly fixed on upholding the overriding objective of the rules of procedure for handling civil cases in courts, which is to do justice in accordance with the law and to prevent abuse of the process of the Court.” 15.The Application made is a mongrel which has no future except to meet a well- deserved sudden death. There is nothing pending to be done as per the order of the applicant’s application. I will not waste judicial time answering unasked questions. 16.The consequence is that the application dated 12/8/2026 is devoid of merits and dismiss the same with costs to the plaintiff/respondent. Dated, Signed and Delivered in open Court at Kehancha on this 11 th day of September, 2026 virtually via Microsoft Teams. J.P. NANDI SENIOR PRINCIPAL MAGISTRATE KEHANCHA SPMC ELC NO. E058 OF 2025 (RULING2) 5

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In the presence of: Mr. Kigera…….Court Assistant Plaintiff………..absent Defendant……..absent Advocate for Plaintiff……..N/A Advocate for defendant……Mr. Nyangi present KEHANCHA SPMC ELC NO. E058 OF 2025 (RULING2) 6

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