'1. The Defendant’s notice of motion application dated 22/4/2025 is the subject of this ruling. The Defendant seeks the following orders:
1) …….…………Spent;
2) …….…………Spent;
3) ……………….Spent;
4) That the honourable court be pleased to order stay of execution of the judgment of the court delivered on 7/4/2025 pending the hearing and determination of the appeal;
5) That this honourable court be pleased to issue such other orders it deems just and fit to grant;
6) That the costs of this application be provided for.
2. The application is supported by the grounds set out on its face and an affidavit sworn by the Defendant on the same date. In the said affidavit, the Defendant avers that he filed a Notice of Appeal on 17/4/2025 against the judgment delivered by this Court on 7/4/2025 and has since applied for certified copies of the proceedings and judgment to facilitate the preparation of a record of appeal. He expresses apprehension that unless the orders sought are granted, the Plaintiffs may proceed with execution, leading to his eviction from the suit property. The Defendant maintains that it is in the interest of justice that the application be allowed and undertakes to pay any damages and comply with any conditions the Court may impose.
3. In response, the Plaintiffs filed grounds of opposition dated 7/5/2025. The Plaintiffs oppose the application on the following grounds: -
1) That the subject application is bad in law as the same is premised on a defective notice of appeal;
2) That the subject application fails to meet the threshold to warrant the prayer for stay of execution of the judgment being granted;
3) That should orders for stay of execution be granted, the plaintiff stands to be further prejudiced as it shall continue to be denied the usage and benefit of the subject property, which has been the case prior to institution of this case before the year 2016, which is more than 10 years now;
4) That the plaintiff stands to be denied the enjoyment of the fruits of its judgment should the orders for stay of execution be issued;
5) That the filing of a notice of appeal does not necessarily mean the filing of any appeal, hence the Plaintiff cannot seek for orders pending the determination of an intended appeal which not be filed;
6) That the Defendant has shown any substantial loss and has not offered any security to protect the interest of the Plaintiff in case the intended appeal is not successful.
4. In a further affidavit sworn on 21stMay 2025, the Defendant states that his advocates have since obtained certified copies of the typed proceedings and a signed copy of the judgment, which are in the process of being filed before the Court of Appeal. He annexes a copy of a draft memorandum of appeal and maintains that his intention to appeal is genuine, well-grounded, and is being pursued with due diligence.
5. The application was canvassed by way of written submissions.
Defendant’s Submissions
6. The Defendant relies on Order 42 Rule 6 of the Civil Procedure Rules and submits that the application meets the legal threshold for stay. He argues that the appeal is arguable and raises substantive issues of law and fact, including the legality of the oral lease, longstanding possession and developments, and non-consideration of uncontroverted evidence.
7. He cites Stanley Kang’ethe Kinyanjui v Tony Ketter & 5 Others [2013] eKLR, asserting that an arguable appeal is not one bound to succeed, but one that merits judicial consideration. He also cites Religious Society of Friends (Quakers) v AG & 2 Others [2021] eKLR, to support the view that dispossession during execution may render an appeal nugatory.
8. On substantial loss, the Defendant refers to Kenya Shell Ltd v Benjamin Karuga Kibiru & Another [1986] KLR 410, submitting that eviction would occasion irreversible harm due to the developments on the property. He is ready to provide security and relies on Butt v Rent Restriction Tribunal [1982] KLR 417 for the proposition that courts should exercise discretion to preserve the substratum of the appeal.
Plaintiffs’ Submissions
9. The Plaintiffs argue that the Defendant has not met the threshold under Order 42 Rule 6(2). On substantial loss, they submit that the Defendant has not produced any documentation to support claims of development or investment. They cite James Wangalwa & Another v Agnes Naliaka Cheseto [2012] eKLR, to argue that mere execution does not amount to substantial loss.
10. On the arguability of the appeal, the Plaintiffs contend that the Defendant merely rehashes issues already determined by the Court and has no legal basis to remain on the suit property. As regards security, the Plaintiffs propose that if stay is granted, it should be conditional upon the Defendant filing the Record of Appeal within 30 days, failing which the stay should lapse automatically.
ANALYSIS AND DETERMINATION
11. The key issues for determination are:
i) Whether the Defendant has demonstrated substantial loss;
ii) Whether the application was made without unreasonable delay;
iii) Whether the Defendant has offered sufficient security;
iv) Whether the appeal is arguable and the interests of justice support grant of stay.
12. The power to grant a stay of execution is discretionary under Order 42 Rule 6(1) of the Civil Procedure Rules, but it is subject to mandatory conditions under Order 42 Rule 6(2). These conditions require the court to be satisfied that substantial loss may result, that the application has been made without unreasonable delay, and that sufficient security has been given. The burden of proof rests on an applicant. It is also pertinent to note that such discretion must be exercised judicially, guided by sound legal principles, and aim to prevent a successful appeal from being rendered nugatory.
13. The Defendant claims that eviction from the developed suit premises would occasion irreversible harm and substantial loss, including potential destruction of permanent developments and livelihood. This aligns with the broader interpretation of "substantial loss" which includes irreparable harm beyond mere financial figures. In the circumstances, the Court finds that the Defendant has demonstrated a credible risk of substantial loss that may render the appeal nugatory.
14. The judgment was delivered on 7/4/2025, and the application for stay was filed on 22/4/2025. Considering that the judgment was delivered via electronic mail, and the relatively short period of 15 days, the Court is satisfied that the application has been made without unreasonable delay. The Defendant has expressed a willingness to provide security for the due performance of the decree. The purpose of security is to safeguard the decree-holder''s interests. The Court has discretion in determining the nature and quantum of security. Given that this is a land matter, the suit property itself can serve as a form of security.
15. An "arguable appeal" is one deserving of consideration and warranting a response, not necessarily one that must succeed. The Court finds that the grounds raised by the Defendant are not frivolous and do indeed raise arguable points of law that merit consideration by the appellate court, without prejudging the appeal itself.
16. Balancing the rights of both parties, and noting that the decree is not purely monetary, the Court finds that the interests of justice warrant grant of conditional stay to preserve the substratum of the appeal. Based on the above, the court issues the following orders:
a) A stay of execution of the judgment and orders delivered and issued on 7/4/2025 is hereby granted pending the hearing and determination of the Defendant''s intended appeal;
b) The Defendant shall file and serve the Record of Appeal at the Court of Appeal within thirty (30) days from the date of this ruling but failure to comply with the ordered actions of filing and/or service either singly or cumulatively shall result in the automatic lapse of the stay orders;
c) Costs of the application shall be in the appeal.
Dated, signed and delivered at Malindi on this 1st day of October, 2025.
'
1) …….…………Spent;
2) …….…………Spent;
3) ……………….Spent;
4) That the honourable court be pleased to order stay of execution of the judgment of the court delivered on 7/4/2025 pending the hearing and determination of the appeal;
5) That this honourable court be pleased to issue such other orders it deems just and fit to grant;
6) That the costs of this application be provided for.
2. The application is supported by the grounds set out on its face and an affidavit sworn by the Defendant on the same date. In the said affidavit, the Defendant avers that he filed a Notice of Appeal on 17/4/2025 against the judgment delivered by this Court on 7/4/2025 and has since applied for certified copies of the proceedings and judgment to facilitate the preparation of a record of appeal. He expresses apprehension that unless the orders sought are granted, the Plaintiffs may proceed with execution, leading to his eviction from the suit property. The Defendant maintains that it is in the interest of justice that the application be allowed and undertakes to pay any damages and comply with any conditions the Court may impose.
3. In response, the Plaintiffs filed grounds of opposition dated 7/5/2025. The Plaintiffs oppose the application on the following grounds: -
1) That the subject application is bad in law as the same is premised on a defective notice of appeal;
2) That the subject application fails to meet the threshold to warrant the prayer for stay of execution of the judgment being granted;
3) That should orders for stay of execution be granted, the plaintiff stands to be further prejudiced as it shall continue to be denied the usage and benefit of the subject property, which has been the case prior to institution of this case before the year 2016, which is more than 10 years now;
4) That the plaintiff stands to be denied the enjoyment of the fruits of its judgment should the orders for stay of execution be issued;
5) That the filing of a notice of appeal does not necessarily mean the filing of any appeal, hence the Plaintiff cannot seek for orders pending the determination of an intended appeal which not be filed;
6) That the Defendant has shown any substantial loss and has not offered any security to protect the interest of the Plaintiff in case the intended appeal is not successful.
4. In a further affidavit sworn on 21stMay 2025, the Defendant states that his advocates have since obtained certified copies of the typed proceedings and a signed copy of the judgment, which are in the process of being filed before the Court of Appeal. He annexes a copy of a draft memorandum of appeal and maintains that his intention to appeal is genuine, well-grounded, and is being pursued with due diligence.
5. The application was canvassed by way of written submissions.
Defendant’s Submissions
6. The Defendant relies on Order 42 Rule 6 of the Civil Procedure Rules and submits that the application meets the legal threshold for stay. He argues that the appeal is arguable and raises substantive issues of law and fact, including the legality of the oral lease, longstanding possession and developments, and non-consideration of uncontroverted evidence.
7. He cites Stanley Kang’ethe Kinyanjui v Tony Ketter & 5 Others [2013] eKLR, asserting that an arguable appeal is not one bound to succeed, but one that merits judicial consideration. He also cites Religious Society of Friends (Quakers) v AG & 2 Others [2021] eKLR, to support the view that dispossession during execution may render an appeal nugatory.
8. On substantial loss, the Defendant refers to Kenya Shell Ltd v Benjamin Karuga Kibiru & Another [1986] KLR 410, submitting that eviction would occasion irreversible harm due to the developments on the property. He is ready to provide security and relies on Butt v Rent Restriction Tribunal [1982] KLR 417 for the proposition that courts should exercise discretion to preserve the substratum of the appeal.
Plaintiffs’ Submissions
9. The Plaintiffs argue that the Defendant has not met the threshold under Order 42 Rule 6(2). On substantial loss, they submit that the Defendant has not produced any documentation to support claims of development or investment. They cite James Wangalwa & Another v Agnes Naliaka Cheseto [2012] eKLR, to argue that mere execution does not amount to substantial loss.
10. On the arguability of the appeal, the Plaintiffs contend that the Defendant merely rehashes issues already determined by the Court and has no legal basis to remain on the suit property. As regards security, the Plaintiffs propose that if stay is granted, it should be conditional upon the Defendant filing the Record of Appeal within 30 days, failing which the stay should lapse automatically.
ANALYSIS AND DETERMINATION
11. The key issues for determination are:
i) Whether the Defendant has demonstrated substantial loss;
ii) Whether the application was made without unreasonable delay;
iii) Whether the Defendant has offered sufficient security;
iv) Whether the appeal is arguable and the interests of justice support grant of stay.
12. The power to grant a stay of execution is discretionary under Order 42 Rule 6(1) of the Civil Procedure Rules, but it is subject to mandatory conditions under Order 42 Rule 6(2). These conditions require the court to be satisfied that substantial loss may result, that the application has been made without unreasonable delay, and that sufficient security has been given. The burden of proof rests on an applicant. It is also pertinent to note that such discretion must be exercised judicially, guided by sound legal principles, and aim to prevent a successful appeal from being rendered nugatory.
13. The Defendant claims that eviction from the developed suit premises would occasion irreversible harm and substantial loss, including potential destruction of permanent developments and livelihood. This aligns with the broader interpretation of "substantial loss" which includes irreparable harm beyond mere financial figures. In the circumstances, the Court finds that the Defendant has demonstrated a credible risk of substantial loss that may render the appeal nugatory.
14. The judgment was delivered on 7/4/2025, and the application for stay was filed on 22/4/2025. Considering that the judgment was delivered via electronic mail, and the relatively short period of 15 days, the Court is satisfied that the application has been made without unreasonable delay. The Defendant has expressed a willingness to provide security for the due performance of the decree. The purpose of security is to safeguard the decree-holder''s interests. The Court has discretion in determining the nature and quantum of security. Given that this is a land matter, the suit property itself can serve as a form of security.
15. An "arguable appeal" is one deserving of consideration and warranting a response, not necessarily one that must succeed. The Court finds that the grounds raised by the Defendant are not frivolous and do indeed raise arguable points of law that merit consideration by the appellate court, without prejudging the appeal itself.
16. Balancing the rights of both parties, and noting that the decree is not purely monetary, the Court finds that the interests of justice warrant grant of conditional stay to preserve the substratum of the appeal. Based on the above, the court issues the following orders:
a) A stay of execution of the judgment and orders delivered and issued on 7/4/2025 is hereby granted pending the hearing and determination of the Defendant''s intended appeal;
b) The Defendant shall file and serve the Record of Appeal at the Court of Appeal within thirty (30) days from the date of this ruling but failure to comply with the ordered actions of filing and/or service either singly or cumulatively shall result in the automatic lapse of the stay orders;
c) Costs of the application shall be in the appeal.
Dated, signed and delivered at Malindi on this 1st day of October, 2025.
'