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MagistrateAllowed

Anangwe v Nyongesa (Commercial Case E002 of 2025) [2026] KEMC 661 (KLR)

Magistrates' Court (Senior Resident Magistrate's Court)
11 August 2026
3,170 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~13 min to read original · ~4 min brief

The bottom line

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A Bungoma magistrate stopped execution of a judgment because the losing party moved reasonably fast and put up money and the car's logbook as security.

What this practically means

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Executive summary

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The Defendant/Applicant, who had appealed against the judgment and decree delivered on 30th April 2026 to the High Court at Bungoma (Bungoma High Court Civil Appeal No. E082 of 2026), moved this court under Order 42 rule 6 of the Civil Procedure Rules seeking stay of execution pending appeal, or alternatively preservation of motor vehicle KAX 046 K in his custody. The Plaintiff/Respondent opposed the application through Grounds of Opposition, arguing it was fatally defective because the Applicant's incoming counsel, BS Advocates LLP, came on record post-judgment without leave or a consent as required by Order 9 Rule 9 of the Civil Procedure Rules. Despite directions for written submissions, only the Applicant filed submissions. The court framed four issues: competence of the application, substantial loss, unreasonable delay, and security. On competence, the court identified divergent High Court positions (Mboya J in Ali v Dika treating non-compliance as fatal; Muchemi J in Together as One Micro Investments treating it as a curable procedural technicality) and, invoking the doctrine of stare decisis and the Court of Appeal's holding in Boniface Kiragu Waweru v James K. Mulinge, adopted the latter view, holding the application properly before the court. On the merits, the court found substantial loss (loss of the motor vehicle, logbook and Kshs. 100,000 general damages would render the appeal nugatory), that the application filed about a month after judgment was without unreasonable delay, and that the Applicant's offer to furnish security sufficed. The application was allowed with conditions: the original logbook and Kshs. 500,000/- to be deposited within fourteen days, failing which the application would be deemed dismissed with costs. Costs of the application were ordered to abide the outcome of the appeal.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the instant Application is properly before this court
  2. 2.Whether substantial loss may result to the Applicant unless the order is made
  3. 3.Whether the Application has been made without unreasonable delay
  4. 4.Whether the Applicant has offered security for the due performance of the decree

Key legal issues

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01

Whether failure to comply with Order 9 Rule 9 (incoming counsel coming on record post-judgment without leave or consent) renders an application fatally defective

Holding

No. The court adopted the line of authority that non-compliance is a procedural, venial omission curable under Article 159(2)(d), holding the application properly before it.

Reasoning

The court noted divergent High Court positions: Mboya J in Ali v Dika treating non-compliance as fatal, Muchemi J in Together as One Micro Investments treating it as curable. Bound by the Court of Appeal's holding in Boniface Kiragu Waweru v James K. Mulinge that the omission is procedural, the court held that divergent High Court decisions are not good law. It reasoned the rule protects advocates from cunning clients who change advocates without settling fees, and the legislature would have expressly provided for nullity if intended.

p. 4
02

Whether the Applicant would suffer substantial loss if stay is not granted

Holding

Yes. Execution would lead to loss of the suit motor vehicle, its logbook and payment of Kshs. 100,000 general damages, rendering the appeal nugatory if successful.

Reasoning

Applying the principle in James Wangalwa v Agnes Naliaka Cheseto that substantial loss is what must be prevented by preserving the status quo, the court found that execution would cause the Applicant to lose the motor vehicle and logbook as well as the Kshs. 100,000 general damages awarded. If the intended appeal succeeded, the Applicant would be unable to recover the property and money, rendering the appeal nugatory.

p. 6
03

Whether the application was made without unreasonable delay

Holding

Yes. Judgment was delivered on 30th April 2026 and the application filed on 11th June 2026, a delay of nearly a month which the court held reasonable.

Reasoning

The court compared the date of the judgment sought to be stayed (30th April 2026) with the filing date (11th June 2026), found the difference of nearly a month reasonable, and therefore held that the application had been made without unreasonable delay as required by Order 42 rule 6(2)(a).

p. 6
04

Whether the Applicant offered security for the due performance of the decree

Holding

Yes. The Applicant's willingness to abide by any conditions and offer of security sufficed, with the court imposing specific conditions (logbook deposit and Kshs. 500,000 in a joint interest-earning account).

Reasoning

Relying on Michael Ntouthi Mitheu v Abraham Kivondo Musau, the court affirmed that the respondent with a decree should not find it impossible to realize it if the appeal fails. Security must be sufficient to settle the entire decree including costs and interest. The Applicant's express willingness to comply with any conditions was held to satisfy the requirement, and the court prescribed the form and quantum of security.

p. 7

Legal principles established

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  • Non-compliance with Order 9 Rule 9 of the Civil Procedure Rules is a curable procedural technicality, not a fatal defect, and is cured under Article 159(2)(d) of the Constitution
  • A magistrate's court may choose between conflicting High Court decisions where there is no unanimity in the High Court
  • Security under Order 42 Rule 6(2)(b) must be sufficient to settle the entire decree including costs and interest

Court orders

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  1. 1.Stay of execution of the judgment, decree and all consequential orders issued and delivered on 30th April 2026, pending hearing and determination of Bungoma High Court Civil Appeal No. E082 of 2026
  2. 2.Preservation of motor vehicle KAX 046 K (Engine Number BJ493Q612934, Chassis Number LCR1B41E96G01366) in the custody and possession of the Defendant/Applicant, with neither party selling, transferring, charging, alienating, disposing of, encumbering or otherwise dealing with it pending the appeal
  3. 3.The Defendant/Applicant to deposit the suit motor vehicle's original logbook in court within fourteen (14) days
  4. 4.The Defendant/Applicant to deposit Kshs. 500,000/- (the value of the suit motor vehicle and general damages awarded plus accrued interest) in a joint interest-earning account in the names of counsel for both parties within fourteen (14) days
  5. 5.Failure to meet the conditions in (c) and (d) within the prescribed timelines deems the Application dismissed with costs, and the Plaintiff/Respondent at liberty to execute
  6. 6.Costs of the Application to abide the outcome of Bungoma High Court Civil Appeal No. E082 of 2026

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

Jurisdiction invoked
Sections 1A, 1B and 3A of the Civil Procedure Act and Order 42 rule 6 of the Civil Procedure Rules

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

The execution of the judgment, decree and all consequential orders issued and delivered herein on 30th April 2026 is stayed pending the hearing and determination of Bungoma High Court Civil Appeal No. E082 of 2026
p. 7Final orders - stay of execution granted
Motor vehicle registration number KAX 046 K, Engine Number BJ493Q612934 and Chassis Number LCR1B41E96G01366 shall remain preserved and in the custody and possession of the Defendant/Applicant, and neither party shall sell, transfer, charge, alienate, dispose of, encumber or otherwise deal with the said motor vehicle in any manner whatsoever pending the hearing and determination of Bungoma High Court Civil Appeal No. E082 of 2026
p. 7Final orders - preservation of suit motor vehicle
In the event the Defendant/Applicant fails to meet the conditions in (c) and (d) above within the prescribed timelines, the instant Application shall be deemed to have been dismissed with costs and the Plaintiff/Respondent will be at liberty to execute.
p. 8Final orders - consequences of non-compliance with security conditions
non-compliance with Order 9 Rule 9 of the Civil Procedure Rules is not fatal but a venial omission which would be cured under Article 159(2)(d) of the Constitution
p. 4Effect of non-compliance with Order 9 Rule 9
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.
p. 6Security - protecting the successful party's right to the fruits of judgment (Kuloba J in Machira)
the security to be provided by the Defendant/Applicant envisaged under Order 42 Rule 6 of the Civil Procedure Rules must be one which will be sufficient to settle the entire decree as will be payable at the time the appeal is lost
p. 7Nature and sufficiency of security under Order 42 Rule 6(2)(b)

Issues in the judgment

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minor

The judgment does not state its own case number; the parties' names as plaintiff/defendant are also not given in the text provided.

minor

Internal inconsistency in the judgment between the heading of paragraph 13 (implying the Applicant conceded non-compliance) and the opposition framed by the Respondent; the Applicant admitted his counsel's own non-compliance with Order 9 Rule 9.

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Anangwe v Nyongesa (Commercial Case E002 of 2025) [2026] KEMC 661 (KLR)", Case Analysis (2026). . Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/661/eng@2026-08-11

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.