Kamal Abdul Haleem v China Communications Construction Company Limited & 4 others

court, and owing to the concurrent nature of the reliefs sought, the two applications were heard concurrently. 2. The first application is the Notice of Motion dated 17th July 2026, brought pursuant to Order 42 Rule 6(1) and (2) of the Civil Procedure Rules, and Sections 1A, 1B, and 3A of the Civil Procedure Act. The Applicants primarily seek an order for the stay of execution of the aforementioned judgment and decree pending the hearing and determination of their intended appeal to the Court of Appeal. 3. The application is anchored on the Supporting Affidavit of Wen Yukun, the 1st Defendant's Project Manager. The Applicants assert that they have lodged a Notice of Appeal and contend that the intended appeal raises substantial issues of law and fact with overwhelming chances of success. The Applicants contend that they would face substantial loss if execution proceeds, and express apprehension that the Respondent lacks the financial means to refund the decretal sum should the appeal succeed. The Applicants state their readiness and willingness to deposit Kshs. 2,000,000/= in court within 45 days as security for the due performance of the decree. 4. Before the first application could be heard, the Applicants filed a subsequent Notice of Motion dated 18th July 2026 under a Certificate of Urgency. This secondary application was precipitated by the Respondent procuring __________________________________________________________________ RULING ELC LC 13/2021 2

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Warrants of Attachment and Sale of Movable Property on 10th July 2026. Consequently, on 17th July 2026, Racecourse Auctioneers, seized a motor vehicle (registration number KCM 967T) from the 1st Defendant. 5. The second application therefore seeks to stay the ongoing execution, restrain the auctioneers, secure the immediate release of the seized vehicle, and set aside the Warrants and subsequent Proclamations. The Applicants challenge the execution process on the following grounds: a. The execution is premature and irregular because no Bill of Costs has been taxed, and the Respondent failed to obtain leave of the court to execute prior to taxation as required under Section 94 of the Civil Procedure Act. b. The execution is founded on a false return of service, as the warrants were allegedly served on a former employee who departed for China in 2025. c. The seized motor vehicle is a critical operational asset deployed in the construction of national infrastructure projects, and its sale would render the intended appeal nugatory. 6. In opposition to the applications, the Plaintiff/Respondent, Kamal Abdul Haleem, filed a Replying Affidavit sworn on 18th August 2026. The Respondent vigorously opposes the grant of a stay, contending that the __________________________________________________________________ RULING ELC LC 13/2021 3

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Applicants have failed to satisfy the cumulative statutory thresholds set out under Order 42 Rule 6(2) of the Civil Procedure Rules. He avers that the applications were an afterthought filed only after lawful execution had already commenced, and notes that the Applicants failed to seek appropriate orders immediately following the delivery of the judgment on 21st May 2026. 7. Further, the Respondent dismisses the Applicants' apprehension regarding his financial capacity as baseless speculation, maintaining that no credible evidence has been adduced to prove he is a "man of straw" incapable of refunding the decretal sum should the appeal succeed. The Respondent also disputes the adequacy of the proposed Kshs. 2,000,000/= security, highlighting that the Applicants have merely expressed a willingness to deposit the amount without actually doing so, and argues that it falls significantly short of securing the full decretal sum of Kshs. 6,604,560/=, alongside costs and accrued interest. 8. Expressing genuine apprehension that the 1st Applicant, being a foreign company carrying on construction business in Kenya, may relocate its operations or assets outside the court's jurisdiction, the Respondent asserts that granting an unconditional or inadequately secured stay would expose him to substantial prejudice and the risk of a paper judgment. Consequently, __________________________________________________________________ RULING ELC LC 13/2021 4

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he urges the Court to vacate the interim ex parte orders issued on 20th July 2026 and dismiss the applications with costs. In the alternative, he prays that should the court be inclined to grant a stay, it must be strictly conditioned upon the Applicants depositing the entire decretal sum, assessed costs, and interest within a short and fixed period. Directions 9. The applications were canvassed by way of written submissions, the submissions of which have been duly considered in the writing of this ruling. Analysis and Determination 10.The singular issue for determination is whether the Applicants have satisfied the requirements for stay of execution of the judgment delivered on 21st May 2026 and the subsequent decree pending the hearing and determination of the intended appeal and, consequently, whether the execution already commenced ought to be set aside. 11. The power of this Court to grant a stay pending appeal is principally governed by Order 42 Rule 6 of the Civil Procedure Rules. Order 42 Rule 6(1) provides: “No appeal or second appeal shall operate as a stay of execution or proceedings under a decree or order appealed from except in so far as __________________________________________________________________ RULING ELC LC 13/2021 5

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the court appealed from may order, but, the court appealed from may for sufficient cause order stay of execution of such decree or order…” 12. The conditions upon which that discretion is exercised are set out in Order 42 Rule 6(2), which provides: “No order for stay of execution shall be made under sub rule (1) unless —(a) the court is satisfied 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 such decree or order as may ultimately be binding on him has been given by the applicant.” 13.The court must therefore consider whether substantial loss may result to the applicant, whether the application has been made without unreasonable delay and whether appropriate security has been offered. These requirements are cumulative. 14.In RWW v EKW [2019] eKLR, the court aptly stated that: “The purpose of an application for stay of execution pending an appeal is to preserve the subject matter in dispute so that the rights of the appellant who is exercising the undoubted right of appeal are safeguarded and the appeal if successful, is not rendered nugatory. However, in doing so, the court should weigh this right against the __________________________________________________________________ RULING ELC LC 13/2021 6

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success of a litigant who should not be deprived of the fruits of his/her judgement.” 15.The court must therefore balance the Applicants' undoubted right to pursue an appeal with the Respondent's equally legitimate right to enjoy the fruits of his judgment. The Applicants contend that they will suffer substantial loss if execution proceeds before the intended appeal is heard and determined. In particular, they point to the execution already commenced, the attachment of motor vehicle registration number KCM 967T and their apprehension that the Respondent may not be in a position to refund the decretal amount should the intended appeal succeed. 16.It is settled that the mere fact that execution has commenced does not, by itself, amount to substantial loss. However, the Court must consider the circumstances of each case and determine whether the execution would occasion prejudice that cannot adequately be remedied if the appeal ultimately succeeds. 17.In the present case, the Applicants have demonstrated that execution has progressed beyond the mere issuance of warrants. Their movable property has already been attached. The threatened sale would therefore alter the prevailing position before the intended appeal is heard. __________________________________________________________________ RULING ELC LC 13/2021 7

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18.Further, the decretal sum is substantial, being Kshs. 6,604,560/=, exclusive of costs and interest. The Applicants have expressed a specific apprehension regarding the Respondent's ability to refund the decretal sum. While the evidential burden does not rest entirely upon the Respondent to prove his financial capacity, the court is entitled to consider the risk of nonrecoverability alongside the other circumstances of the case. In the circumstances, I am satisfied that the Applicants have demonstrated sufficient risk of substantial loss to warrant preservation of the subject matter pending appeal. 19. The Judgment was delivered on 21st May 2026. The first application was filed on 17th July 2026, while the second application was filed on 18th July 2026 immediately following commencement of execution and attachment. 20. The period between delivery of judgment and filing of the first application, considered in the circumstances of this case, does not amount to unreasonable delay. More importantly, the Applicants moved the court promptly once execution had commenced. I therefore find that this requirement has been satisfied. 21. The Applicants have proposed to deposit Kshs. 2,000,000/= as security. The Respondent objects to the proposal on the basis that it falls substantially below the decretal sum of Kshs. 6,604,560/=. __________________________________________________________________ RULING ELC LC 13/2021 8

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22. Order 42 Rule 6(2)(b) gives the court the discretion to determine the appropriate security for the due performance of the decree. The purpose of security is to balance the Applicants' right of appeal with the Respondent's right to ultimately enjoy the fruits of the judgment promptly should the appeal fail. 23. Having regard to the decretal amount and the circumstances of the case, I consider it just and reasonable that the entire decretal sum be secured pending determination of the intended appeal; the stay shall therefore be conditional on the Applicants depositing the entire decretal sum of Kshs. 6,604,560/= in a joint interest-earning account in the names of the advocates for the parties within forty-five (45) days of this ruling. 24. The Applicants have also challenged the execution process already undertaken, including the Warrants of Attachment and Sale, the Proclamation and the seizure of motor vehicle registration number KCM 967T. 25. The record appears to indicate that execution was commenced before taxation of the costs and without leave of the Court. Section 94 of the Civil Procedure Act provides that: “Where the High Court considers it necessary that a decree passed in the exercise of its original civil jurisdiction should be executed before __________________________________________________________________ RULING ELC LC 13/2021 9

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the amount of the costs incurred in the suit can be ascertained by taxation, the court may order that the decree shall be executed forthwith, except as to so much thereof as relates to the costs…” 26. The provision has been interpreted as establishing the general rule that execution should await taxation of costs unless leave is first obtained from the court for execution before taxation. In Mombasa Cement Limited v Speaker, National Assembly & another [2018] eKLR, the Court observed: “Taxation of Costs is in my view part of the execution process. That must be the reason Section 94 of the Civil Procedure Act provides as a general rule that execution of orders of the Court should await the confirmation of the costs on taxation unless the Court grants leave for execution before taxation of costs.” 27. Similarly, in MAAA (Suing in his Capacity as the Administrator of the Estate of AMAA (Deceased) v FSS [2021] KECA 206 (KLR) , the Court of Appeal considered the effect of Section 94 in circumstances where execution is undertaken before costs are ascertained arriving at the same conclusion. 28. The objection by the Applicants is pertinent because the decree herein includes costs which, from the material before the Court, had not been taxed at the time execution commenced. There is also no material before __________________________________________________________________ RULING ELC LC 13/2021 10

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the Court demonstrating that leave was obtained to execute before taxation. 29. Having found that the Applicants have satisfied the requirements for stay pending appeal, in addition to the fact of execution having been commenced before ascertainment of costs without leave of the court, it follows that the execution process cannot be permitted to continue. The court must therefore restore the position obtaining before the impugned attachment, so as to preserve the subject matter of the intended appeal. 30. Consequently, the Warrants of Attachment and Sale and the consequential proclamation issued pursuant thereto shall be set aside, and the motor vehicle registration number KCM 967T shall be released to the 1st Defendant/Applicant, unless it is otherwise lawfully held pursuant to a process unrelated to the decree herein. 31. Taking the totality of the circumstances in this case into account, I am satisfied that the Applicants have demonstrated sufficient cause for the grant of a stay of execution pending the intended appeal. The stay is necessary to preserve the subject matter and ensure that the Applicants' right of appeal is not rendered nugatory. At the same time, the Respondent's right to the fruits of the judgment must be protected. The appropriate balance is therefore to grant a conditional stay; the condition being that the Applicants provide __________________________________________________________________ RULING ELC LC 13/2021 11

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security for the entire decretal sum. Accordingly, I make the following orders: a) The Notices of Motion dated 17th July 2026 and 18th July 2026 are hereby allowed in part. b) There shall be a stay of execution of the Judgment delivered on 21st May 2026 and the subsequent decree pending the hearing and determination of the intended appeal. c) The stay granted under Order 2 above shall be conditional upon the Applicants depositing Kshs. 6,604,560/=, being the decretal sum, in a joint interest-earning account in the names of the advocates for the parties within forty-five (45) days from the date hereof. d) The Warrants of Attachment and Sale issued pursuant to the decree and the consequential proclamation are hereby set aside. e) Motor vehicle registration number KCM 967T, seized pursuant to the aforesaid execution process, shall be released forthwith to the 1st Defendant/Applicant, unless otherwise lawfully held pursuant to a separate process. f) Each party shall bear its own costs of the two applications. It is so ordered. Dated Signed and Delivered Virtually this 24th Day of September 2026. M.D. MWANGI JUDGE In the virtual presence of: __________________________________________________________________ RULING ELC LC 13/2021 12

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Mr. Ondego for the 1st and 2nd Defendants/Applicants Ms. Kwoba for the Plaintiff/Respondent N/A by the 3rd to the 5th Defendants Court Assistant: Alex M.D. MWANGI JUDGE __________________________________________________________________ RULING ELC LC 13/2021 13

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