RULING
PROLOGUE
[1] For determination is the Notice of Motion dated 18/3/2026, expressed to be brought under Order 42 Rules 6, Order 22 Rule 22 and 25 and Order 51 Rule 1 of the Civil Procedure Rules , Section 3A of the Civil Procedure Act , the Plaintiff/Applicant sought the following orders:
a)(spent)
b)(spent),
c) A stay of execution of the Judgment and all subsequent orders thereto, delivered on 3rd March 2026, pending the hearing and determination of the intended Appeal at the Court of Appeal at Nakuru; and
d) Costs of the application.
[2] The application is predicated on the grounds encapsulated in the body of the application and the supporting affidavit of Francis Ranogwa sworn on 18/3/2026. The kernel and quintessence of the Applicant deposition is that they are aggrieved by the Judgment of the court(Odeny J) delivered on 3/3/2026, dismissing the Applicant's Originating Summons seeking adverse possession over L.R. Nakuru Municipality Block 24/753 (hereinafter referred to as the suit land) with costs. Antithetically, they adjure that they have continuously occupied and worshipped on the suit property for upwards of twenty four (24) years, such that execution and eviction would render the intended appeal nugatory.
[3] The 1st Respondent opposed the application vide grounds of opposition dated 8/4/ 2026, adumbrating that the application seeks to stay orders and outcomes incapable of stay, that the application is frivolous, vexatious and an abuse of the process of court, and that there is no offer on security for costs or performance.
[4] The application is equally vivaciously balked by the 2nd Respondent, by way of a Replying Affidavit dated 25/3/2026. He deposes inter alia that he is the registered owner of the suit property and that he should not be detracted from enjoy the fruits of the judgment. He contends that the appeal does not raise arguable grounds to merit the prayers sought and that the Applicant does not stand to suffer any loss that cannot be compensated monetarily. He finally entreaty, that the Applicant should deposit a sum of Kshs 500,000 as security as a prerequisite for allowing the application.
[5] Parties agreed to canvass the application by way of written submission.
APPLICANT'S SUBMISSIONS
[6] Counsel for the Plaintiff/Applicant filed written submissions dated 10/4/2026, submitting that the application is anchored on Order 42 Rule 6(2) of the Civil Procedure Rules , which requires an applicant to demonstrate: (a) that substantial loss will result unless stay is granted; (b) that the application has been made without unreasonable delay; and (c) that security has been furnished or offered for the due performance of the decree. Counsel relied on Halai & Another v Thornton & Turpin (1963) Ltd [1990] KLR 365 for the proposition that these three conditions fetter the court's discretion.
[7] On substantial loss, counsel submits that the 2nd Respondent, as the registered proprietor, holds the statutory right to sell, alienate, dispose of or charge the suit property and that exercise of any such right during the pendency of the appeal would place the property beyond the reach of the appellate process and render the appeal nugatory, relying on the case of Consolata Catholic Mission Trustees (Registered) v Nyamu [2024] KEELC 13471 (KLR) . Counsel further submitted that without stay, the Respondents would proceed to evict the Applicant's congregation from its place of worship of over 24 years, occasioning irreparable loss. They referred to the case of Apungu v Justinice Limited [2024] KECA 99 (KLR) .
[8]On delay, counsel submits that the Judgment was delivered on 3/3/2026 and briskly they filed a Notice of Appeal and requested for proceedings the day after on the 4/3/2026. They asseverated that this application was filed on the 18/3/2026 and as such brought without unreasonable delay. They relied on Ongeche v Molyn Credit Ltd & another [2024] KEELC 1217 (KLR) for the proposition that an intending appellant "does not have the laxity of going to sleep " and that a Notice of Appeal is what clothes the court with jurisdiction to entertain the stay application.
[9] On the arguability of the appeal; counsel points chiefly to the grounds set out in the draft Memorandum of Appeal annexed to the application, urging that the appeal raises high chances of success.
[10] On the issue of security, counsel submitted that the sum of Kshs. 500,000/= proposed by the 2nd Respondent was unreasonably high and had the potential to defeat the Applicant’s right of appeal altogether. Counsel relied on Arun C. Sharma v Ashana Raikundalia t/a Rairundalia & Co. Advocates & 2 Others [2014] eKLR and Focin Motorcycle Co. Ltd v Ann Wambui Wangui [2018] eKLR. Counsel further submitted that the Applicant had made an offer on security and urged the Court to find that this condition had accordingly been satisfied.
[11] In conclusion, counsel urged that the court ought to balance the Respondents' right to enjoy the fruits of judgment against the Applicant's corresponding right to pursue its appeal without it being rendered nugatory and urged the court to exercise its discretion in the Applicant's favor.
RESPONDENTS’ SUBMISSION
[12] The Respondents' did not file written submissions.
ANALYSIS AND DETERMINATION
[13] Flowing from foregoing, the overarching question for determination is whether the Applicant has satisfied the threshold set out under Order 42 Rule 6(2) of the Civil Procedure Rules for grant of a stay of execution pending appeal,
[14] The framework and the test for consideration in stay pending appeal is axiomatic or if I can adopt the colloquial, is old hat. Applications of such nature are guided by the provisions of Order 42 Rule 6 which provides as follows :-
“Order 42 Rule 6 (2) :- No order for stay of execution shall be made under subrule (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.'
[15] Juxtaposing the foregoing principles with the instant application, the Applicant is required to satisfy three conditions. First, the Applicant must demonstrate that substantial loss may result if the order for stay is not granted. Secondly, the application must have been made without unreasonable delay. Thirdly, the Applicant must provide such security as may be required for the due performance of the decree
[16] Another fundamental jurisprudential underpinning, apart from the three elements, is the appreciation of the essence of an application for stay pending appeal, which is aimed at preserving the subject matter of litigation to avoid a situation where a successful appellant only gets a paper judgment; whilst not losing sight of the fact that a successful litigant is entitled to benefit from the fruits of the judgment. See Reliance Bank vs Norlake Investments Ltd (2002) 1 EA 227
[17] Let me start with the most elementary, as to whether the Applicant has demonstrated that the application was made without unreasonable delay. The impugned Judgment was delivered on 3/3/2026. The Applicant filed a Notice of Appeal on 4/3/2026 together with a letter requesting certified copies of the typed proceedings and Judgment. The draft Memorandum of Appeal was also prepared. The present application for stay was filed on 18/3/2026, a period of only fifteen (15) days from the date of delivery of the Judgment. It is thus ineluctable, from the sequence of events contextualized on the surrounding circumstances, that the Applicant did not go to slumber but acted without unreasonable delay.
[18] On the second condition, which I deem to be a foundational consideration, is to examine whether substantial loss may result to the Applicant unless an order for stay is made. “Substantial loss” was defined in Ngetich v Temor (Small Claims Appeal E010 of 2025) [2025] KEHC 15048 (KLR) (23 October 2025) where the court stated that:
“Substantial loss in the sense of Order 42 Rule 6 has been described as a qualitative concept. It refers to any loss, great or small, that is of real worth or value as distinguished from a loss without value or a loss that is merely nominal. In Kenya Shell Limited v. Benjamin Karuga Kigibu & Ruth Wairimu Karuga [1982-1988] 1 KAR 1018, the Court of Appeal stated that: “It is usually a good rule to see if Order 42 Rule 6 of the Civil Procedure Rules can be substantiated. If there is no evidence of substantial loss to the applicant, it would be a rare case when an appeal would be rendered nugatory by some other event. Substantial loss in its various forms, is the cornerstone of both jurisdiction for granting stay .". (emphasis is mine .
[19] Juxtaposing the foregoing principles with the instant application, the Applicant is required to satisfy three conditions. First, the Applicant must demonstrate that substantial loss may result if the order for stay is not granted. Secondly, the application must have been made without unreasonable delay. Thirdly, the Applicant must provide such security as may be required for the due performance of the decree
[20] In the instant case, the suit land is none like any other, it is utilized as a sanctuary of worship by the Applicants. From the scrutable reading of the impugned judgment it is common ground that the Applicants have been in occupation of the suit property for an extended period of time. The fact that the Applicant are in possession cannot be swept under the rug in view of the need to protect the subject matter of litigation. I hasten to add, that solely is not adequate.
[21] In the case of Kemfro Ltd v Kabare Baragwi & Ngariama Co-operative Society & 3 Others , High Court at Nairobi, Civil Case No. 2069 of 1996 where Mbogholi Msahga J(as he was then), allowed an application for stay pending appeal, in a matter where the appellant was in possession of certain premises. Similarly stay was also granted in the case of Kukyama Mbuvi v Mutisya Kisangi, Court of Appeal at Nairobi, Civil Application No. NAI 234 of 1995 on the basis that if the property exchanged hands, the respondent could dispose of the land, and a successful appeal would be rendered worthless.
[22] In the absence of a stay, the Applicants faces a real and imminent risk of eviction, with the consequent disruption of its continued occupation and use of the suit property. Further, any alienation, transfer, or other disposition of the suit property during the pendency of the appeal may place the subject matter beyond the effective reach of the appellate process and thereby render the appeal nugatory.
[23] On the last condition of security for the due performance of the decree; Order 42 Rule 6(2)(b) requires the Applicant to furnish such security as the Court may order for the due performance of the decree or order as may ultimately be binding upon him. In Barasa v Nambale (Civil Appeal E135 of 2024) [2025] KEHC 4986 (KLR) , the Court reiterated that an Applicant seeking stay must demonstrate, inter alia , that “ he is willing to furnish security for the due performance of the decree .
[24] In the present matter, both parties are, in principle, agreeable to the provision of security. Indeed, the 2nd Respondent was willing to concede to the stay sought, subject to the provision of appropriate security. In the circumstances, and given that the issue of security can adequately safeguard the interests of the Respondents, there is no sufficient basis upon which the Court ought to decline the application for stay.
[25] The only point of divergent is on the amount. The Court must therefore determine an amount that adequately safeguards the Respondents’ interests without imposing an onerous condition that would unnecessarily impede the Applicant’s right of appeal. In Chege & another v Ngari (Civil Appeal E349 of 2023) [2025] KEHC 3877 (KLR) , the Court considered the security already furnished and the circumstances of the decree before making consequential orders regarding the security and execution. The decision underscores the need for the Court to fashion security in light of the circumstances of each case rather than mechanically impose a uniform figure.
[26] Ultimately, the nature of the security is in the discretion of the Court. Like all other discretions, the same should not be exercised capriciously but judiciously.
[27] In the circumstances, this Court finds that a deposit of Kshs. 300,000/= constitutes reasonable security that balances the competing interests of the parties without imposing a condition that would unduly impede the Applicant’s right of appeal.
DISPOSITION
[28] In denouement, I hereby allow the Applicant's application dated 18/3/2026 and grant stay of execution of the Judgement delivered on 3/3/2026 and all consequential orders emanating therefrom, pending the hearing and determination of the appeal on the following conditions:
a) The Applicant shall deposit a sum of Kshs. 300,000/= (three hundred Thousand Shillings) in a joint interest earning account in the names of both counsel within twenty-one (21) days from the date hereof;
b) In default of the above(a), the stay of execution granted herein shall automatically lapse and the Respondents shall be at liberty to proceed with execution of the decree.
c) The costs of this application shall be in the appeal.
[29] It is so ordered.
DATED,SIGNED AND DELIVERED IN NAKURU ON THIS 16TH SEPTEMBER,2026
B.M. EKHUBI
JUDGE.
PROLOGUE
[1] For determination is the Notice of Motion dated 18/3/2026, expressed to be brought under Order 42 Rules 6, Order 22 Rule 22 and 25 and Order 51 Rule 1 of the Civil Procedure Rules , Section 3A of the Civil Procedure Act , the Plaintiff/Applicant sought the following orders:
a)(spent)
b)(spent),
c) A stay of execution of the Judgment and all subsequent orders thereto, delivered on 3rd March 2026, pending the hearing and determination of the intended Appeal at the Court of Appeal at Nakuru; and
d) Costs of the application.
[2] The application is predicated on the grounds encapsulated in the body of the application and the supporting affidavit of Francis Ranogwa sworn on 18/3/2026. The kernel and quintessence of the Applicant deposition is that they are aggrieved by the Judgment of the court(Odeny J) delivered on 3/3/2026, dismissing the Applicant's Originating Summons seeking adverse possession over L.R. Nakuru Municipality Block 24/753 (hereinafter referred to as the suit land) with costs. Antithetically, they adjure that they have continuously occupied and worshipped on the suit property for upwards of twenty four (24) years, such that execution and eviction would render the intended appeal nugatory.
[3] The 1st Respondent opposed the application vide grounds of opposition dated 8/4/ 2026, adumbrating that the application seeks to stay orders and outcomes incapable of stay, that the application is frivolous, vexatious and an abuse of the process of court, and that there is no offer on security for costs or performance.
[4] The application is equally vivaciously balked by the 2nd Respondent, by way of a Replying Affidavit dated 25/3/2026. He deposes inter alia that he is the registered owner of the suit property and that he should not be detracted from enjoy the fruits of the judgment. He contends that the appeal does not raise arguable grounds to merit the prayers sought and that the Applicant does not stand to suffer any loss that cannot be compensated monetarily. He finally entreaty, that the Applicant should deposit a sum of Kshs 500,000 as security as a prerequisite for allowing the application.
[5] Parties agreed to canvass the application by way of written submission.
APPLICANT'S SUBMISSIONS
[6] Counsel for the Plaintiff/Applicant filed written submissions dated 10/4/2026, submitting that the application is anchored on Order 42 Rule 6(2) of the Civil Procedure Rules , which requires an applicant to demonstrate: (a) that substantial loss will result unless stay is granted; (b) that the application has been made without unreasonable delay; and (c) that security has been furnished or offered for the due performance of the decree. Counsel relied on Halai & Another v Thornton & Turpin (1963) Ltd [1990] KLR 365 for the proposition that these three conditions fetter the court's discretion.
[7] On substantial loss, counsel submits that the 2nd Respondent, as the registered proprietor, holds the statutory right to sell, alienate, dispose of or charge the suit property and that exercise of any such right during the pendency of the appeal would place the property beyond the reach of the appellate process and render the appeal nugatory, relying on the case of Consolata Catholic Mission Trustees (Registered) v Nyamu [2024] KEELC 13471 (KLR) . Counsel further submitted that without stay, the Respondents would proceed to evict the Applicant's congregation from its place of worship of over 24 years, occasioning irreparable loss. They referred to the case of Apungu v Justinice Limited [2024] KECA 99 (KLR) .
[8]On delay, counsel submits that the Judgment was delivered on 3/3/2026 and briskly they filed a Notice of Appeal and requested for proceedings the day after on the 4/3/2026. They asseverated that this application was filed on the 18/3/2026 and as such brought without unreasonable delay. They relied on Ongeche v Molyn Credit Ltd & another [2024] KEELC 1217 (KLR) for the proposition that an intending appellant "does not have the laxity of going to sleep " and that a Notice of Appeal is what clothes the court with jurisdiction to entertain the stay application.
[9] On the arguability of the appeal; counsel points chiefly to the grounds set out in the draft Memorandum of Appeal annexed to the application, urging that the appeal raises high chances of success.
[10] On the issue of security, counsel submitted that the sum of Kshs. 500,000/= proposed by the 2nd Respondent was unreasonably high and had the potential to defeat the Applicant’s right of appeal altogether. Counsel relied on Arun C. Sharma v Ashana Raikundalia t/a Rairundalia & Co. Advocates & 2 Others [2014] eKLR and Focin Motorcycle Co. Ltd v Ann Wambui Wangui [2018] eKLR. Counsel further submitted that the Applicant had made an offer on security and urged the Court to find that this condition had accordingly been satisfied.
[11] In conclusion, counsel urged that the court ought to balance the Respondents' right to enjoy the fruits of judgment against the Applicant's corresponding right to pursue its appeal without it being rendered nugatory and urged the court to exercise its discretion in the Applicant's favor.
RESPONDENTS’ SUBMISSION
[12] The Respondents' did not file written submissions.
ANALYSIS AND DETERMINATION
[13] Flowing from foregoing, the overarching question for determination is whether the Applicant has satisfied the threshold set out under Order 42 Rule 6(2) of the Civil Procedure Rules for grant of a stay of execution pending appeal,
[14] The framework and the test for consideration in stay pending appeal is axiomatic or if I can adopt the colloquial, is old hat. Applications of such nature are guided by the provisions of Order 42 Rule 6 which provides as follows :-
“Order 42 Rule 6 (2) :- No order for stay of execution shall be made under subrule (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.'
[15] Juxtaposing the foregoing principles with the instant application, the Applicant is required to satisfy three conditions. First, the Applicant must demonstrate that substantial loss may result if the order for stay is not granted. Secondly, the application must have been made without unreasonable delay. Thirdly, the Applicant must provide such security as may be required for the due performance of the decree
[16] Another fundamental jurisprudential underpinning, apart from the three elements, is the appreciation of the essence of an application for stay pending appeal, which is aimed at preserving the subject matter of litigation to avoid a situation where a successful appellant only gets a paper judgment; whilst not losing sight of the fact that a successful litigant is entitled to benefit from the fruits of the judgment. See Reliance Bank vs Norlake Investments Ltd (2002) 1 EA 227
[17] Let me start with the most elementary, as to whether the Applicant has demonstrated that the application was made without unreasonable delay. The impugned Judgment was delivered on 3/3/2026. The Applicant filed a Notice of Appeal on 4/3/2026 together with a letter requesting certified copies of the typed proceedings and Judgment. The draft Memorandum of Appeal was also prepared. The present application for stay was filed on 18/3/2026, a period of only fifteen (15) days from the date of delivery of the Judgment. It is thus ineluctable, from the sequence of events contextualized on the surrounding circumstances, that the Applicant did not go to slumber but acted without unreasonable delay.
[18] On the second condition, which I deem to be a foundational consideration, is to examine whether substantial loss may result to the Applicant unless an order for stay is made. “Substantial loss” was defined in Ngetich v Temor (Small Claims Appeal E010 of 2025) [2025] KEHC 15048 (KLR) (23 October 2025) where the court stated that:
“Substantial loss in the sense of Order 42 Rule 6 has been described as a qualitative concept. It refers to any loss, great or small, that is of real worth or value as distinguished from a loss without value or a loss that is merely nominal. In Kenya Shell Limited v. Benjamin Karuga Kigibu & Ruth Wairimu Karuga [1982-1988] 1 KAR 1018, the Court of Appeal stated that: “It is usually a good rule to see if Order 42 Rule 6 of the Civil Procedure Rules can be substantiated. If there is no evidence of substantial loss to the applicant, it would be a rare case when an appeal would be rendered nugatory by some other event. Substantial loss in its various forms, is the cornerstone of both jurisdiction for granting stay .". (emphasis is mine .
[19] Juxtaposing the foregoing principles with the instant application, the Applicant is required to satisfy three conditions. First, the Applicant must demonstrate that substantial loss may result if the order for stay is not granted. Secondly, the application must have been made without unreasonable delay. Thirdly, the Applicant must provide such security as may be required for the due performance of the decree
[20] In the instant case, the suit land is none like any other, it is utilized as a sanctuary of worship by the Applicants. From the scrutable reading of the impugned judgment it is common ground that the Applicants have been in occupation of the suit property for an extended period of time. The fact that the Applicant are in possession cannot be swept under the rug in view of the need to protect the subject matter of litigation. I hasten to add, that solely is not adequate.
[21] In the case of Kemfro Ltd v Kabare Baragwi & Ngariama Co-operative Society & 3 Others , High Court at Nairobi, Civil Case No. 2069 of 1996 where Mbogholi Msahga J(as he was then), allowed an application for stay pending appeal, in a matter where the appellant was in possession of certain premises. Similarly stay was also granted in the case of Kukyama Mbuvi v Mutisya Kisangi, Court of Appeal at Nairobi, Civil Application No. NAI 234 of 1995 on the basis that if the property exchanged hands, the respondent could dispose of the land, and a successful appeal would be rendered worthless.
[22] In the absence of a stay, the Applicants faces a real and imminent risk of eviction, with the consequent disruption of its continued occupation and use of the suit property. Further, any alienation, transfer, or other disposition of the suit property during the pendency of the appeal may place the subject matter beyond the effective reach of the appellate process and thereby render the appeal nugatory.
[23] On the last condition of security for the due performance of the decree; Order 42 Rule 6(2)(b) requires the Applicant to furnish such security as the Court may order for the due performance of the decree or order as may ultimately be binding upon him. In Barasa v Nambale (Civil Appeal E135 of 2024) [2025] KEHC 4986 (KLR) , the Court reiterated that an Applicant seeking stay must demonstrate, inter alia , that “ he is willing to furnish security for the due performance of the decree .
[24] In the present matter, both parties are, in principle, agreeable to the provision of security. Indeed, the 2nd Respondent was willing to concede to the stay sought, subject to the provision of appropriate security. In the circumstances, and given that the issue of security can adequately safeguard the interests of the Respondents, there is no sufficient basis upon which the Court ought to decline the application for stay.
[25] The only point of divergent is on the amount. The Court must therefore determine an amount that adequately safeguards the Respondents’ interests without imposing an onerous condition that would unnecessarily impede the Applicant’s right of appeal. In Chege & another v Ngari (Civil Appeal E349 of 2023) [2025] KEHC 3877 (KLR) , the Court considered the security already furnished and the circumstances of the decree before making consequential orders regarding the security and execution. The decision underscores the need for the Court to fashion security in light of the circumstances of each case rather than mechanically impose a uniform figure.
[26] Ultimately, the nature of the security is in the discretion of the Court. Like all other discretions, the same should not be exercised capriciously but judiciously.
[27] In the circumstances, this Court finds that a deposit of Kshs. 300,000/= constitutes reasonable security that balances the competing interests of the parties without imposing a condition that would unduly impede the Applicant’s right of appeal.
DISPOSITION
[28] In denouement, I hereby allow the Applicant's application dated 18/3/2026 and grant stay of execution of the Judgement delivered on 3/3/2026 and all consequential orders emanating therefrom, pending the hearing and determination of the appeal on the following conditions:
a) The Applicant shall deposit a sum of Kshs. 300,000/= (three hundred Thousand Shillings) in a joint interest earning account in the names of both counsel within twenty-one (21) days from the date hereof;
b) In default of the above(a), the stay of execution granted herein shall automatically lapse and the Respondents shall be at liberty to proceed with execution of the decree.
c) The costs of this application shall be in the appeal.
[29] It is so ordered.
DATED,SIGNED AND DELIVERED IN NAKURU ON THIS 16TH SEPTEMBER,2026
B.M. EKHUBI
JUDGE.