Abel Hayora Onditi, the judgment debtor herein has come to this court with an application dated 30/8/2024, seeking orders that this Honorable Court does issue an injunction staying any further execution of this Judgment dated 23rd August 2024 pending the hearing and determination Of the Applicants Appeal on this Court\'s Judgment to the Court of Appeal. That the costs of this Application be in the Cause. The application is based on grounds that the Applicant being aggrieved by this Court\'s Judgment of 23rd August 2024 is intent on appealing against the Judgment to the Court of Appeal and has given notice and intention of the same to the Court and the Respondents.
The applicant alleges that he is in possession of the property that was the subject matter of the suit and the applicant fears that unless restrained the Plaintiff/Respondent will proceed to execute on the Judgment and evict the Applicant his servants and agents from the suit property thus rendering any appeal by the Applicant nugatory. According to the applicant he has valid grounds to base his Appeal and stands to suffer irreparable loss and damage if the 1st Respondent is not injuncted from proceeding to execute on the Judgment of the Court. The Applicant has its right to have its Appeal heard without the threat of duress from execution by the Respondent. The applicant contends that this Court has the jurisdiction to grant the Orders sought.
In the supporting affidavit the applicant states that he has an arguable Appeal based on valid grounds because this court erred in its Judgment against him as can be discerned from the Judgment. That the Court determined that he was not the owner of the property and granted the Plaintiff/Respondent Orders restraining him from entering onto the suit Property.
The applicant claims that he has invested heavily on the property and he fears that the decree holder will proceed to demolish his property and evict his servants from the Property unless restrained by this honorable Court. On the property he does farming and raises chickens. He believes that under the Article 40 of the Constitution he has a right not to have his property protected. The urgency of the matter is that I have received reports that the plaintiff/Respondent intends to take urgent steps to take possession of the property
The applicant believes that the decree holder armed with the judgment of the Court will proceed to use excessive force at the earliest to remove all vestiges of the suit Property thereby causing him to suffer a great loss and damage. His belief is grounded on the fact that the plaintiff /Respondent has a history of using excessive force and Police Officers to obstruct his use of the property. That as the construction done on Property is his, as allowed under the provisions of Article 260 of the Constitution, he fears that the plaintiff/Respondent’s intended action will render any appeal he makes nugatory as his property will have been destroyed.
The respondent Jason Nyaruri Onditi opposes the application on grounds that the applicant herein does not do farming and or raise chickens on the suit property. This can be discerned from the photos of the empty chicken coop. As can be gleaned from the instant application, no order for leave to come on record after judgment for the 1st Defendant /Applicant has been sought and therefore the Applicant\'s advocates are improperly on record. He deposes that there being no order sought by the Applicant\'s advocates to come on record after judgment, the application herein is an abuse of the court process for reason that it has been brought by a firm which is not properly before the court are thus mere busy bodies. That the court pronounced itself on the issue of ownership of the parcel of land known as NJORO/NGATA BLOCK 2/1613 (KIROBON“A\') and cannot therefore sit as an appeal court to determine whether or not the Applicant\'s right to property will be infringed as a result of a lawful process of execution. That it is upon the Applicant to prove the substantial loss he would suffer if the court declines to issue the orders sought. As things stand, he is not on the disputed land as he is residing in New Jersey.
I have considered the application and reply and order 42 rule 6 provides. Order 42 Rule 6 (1) and 2 of the Civil Procedure Rules which stipulates as follows: -6.(1)No appeal or second appeal shall operate as a stay of execution or proceedings under a decree or order appealed from except appeal case of in so far as the court appealed from may order but, the court appealed from may for sufficient cause order stay of execution of such decree or order, and whether the application for such stay shall have been granted or refused by the court appealed from, the court to which such appeal is preferred shall be at liberty, on application being made, to consider such application and to make such order thereon as may to it seem just, and any person aggrieved by an order of stay made by the court from whose decision the appeal is referred may apply to the appellate court to have such order set aside.(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.
The fact that the application has been filed timeously is not in doubt. On substantial loss, I do find that the there is no evidence that the applicant will suffer substantial loss if he stops farming or rearing chickens on the land. Both the applicant and the respondent were in possession of the property at the time of judgment and therefore there would be no substantial loss if he remains in possession. However, this court has a duty to preserve the subject matter to pre-empt any disposal before the determination of the appeal. The court, in RWW v EKW [2019] eKLR, considered the purpose of a stay of execution order pending appeal, in the following words: “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 success of a litigant who should not be deprived of the fruits of his/her judgment. The court is also called upon to ensure that no party suffers prejudice that cannot be compensated by an award of costs. Indeed to grant or refuse an application for stay of execution pending appeal is discretionary. The Court when granting the stay however, must balance the interests of the Appellant with those of the Respondent.”
I do find the application is merited only to the extent of preserving the subject matter and therefore I do order that the parcel of land should not be disposed by sale, mortgage or otherwise pending the hearing and determination of appeal. There should be no demolition of any structure on the suit property. Otherwise, the application is not allowed. No order as to costs.
Ruling dated, signed and delivered electronically this 30th day of September 2024.
The applicant alleges that he is in possession of the property that was the subject matter of the suit and the applicant fears that unless restrained the Plaintiff/Respondent will proceed to execute on the Judgment and evict the Applicant his servants and agents from the suit property thus rendering any appeal by the Applicant nugatory. According to the applicant he has valid grounds to base his Appeal and stands to suffer irreparable loss and damage if the 1st Respondent is not injuncted from proceeding to execute on the Judgment of the Court. The Applicant has its right to have its Appeal heard without the threat of duress from execution by the Respondent. The applicant contends that this Court has the jurisdiction to grant the Orders sought.
In the supporting affidavit the applicant states that he has an arguable Appeal based on valid grounds because this court erred in its Judgment against him as can be discerned from the Judgment. That the Court determined that he was not the owner of the property and granted the Plaintiff/Respondent Orders restraining him from entering onto the suit Property.
The applicant claims that he has invested heavily on the property and he fears that the decree holder will proceed to demolish his property and evict his servants from the Property unless restrained by this honorable Court. On the property he does farming and raises chickens. He believes that under the Article 40 of the Constitution he has a right not to have his property protected. The urgency of the matter is that I have received reports that the plaintiff/Respondent intends to take urgent steps to take possession of the property
The applicant believes that the decree holder armed with the judgment of the Court will proceed to use excessive force at the earliest to remove all vestiges of the suit Property thereby causing him to suffer a great loss and damage. His belief is grounded on the fact that the plaintiff /Respondent has a history of using excessive force and Police Officers to obstruct his use of the property. That as the construction done on Property is his, as allowed under the provisions of Article 260 of the Constitution, he fears that the plaintiff/Respondent’s intended action will render any appeal he makes nugatory as his property will have been destroyed.
The respondent Jason Nyaruri Onditi opposes the application on grounds that the applicant herein does not do farming and or raise chickens on the suit property. This can be discerned from the photos of the empty chicken coop. As can be gleaned from the instant application, no order for leave to come on record after judgment for the 1st Defendant /Applicant has been sought and therefore the Applicant\'s advocates are improperly on record. He deposes that there being no order sought by the Applicant\'s advocates to come on record after judgment, the application herein is an abuse of the court process for reason that it has been brought by a firm which is not properly before the court are thus mere busy bodies. That the court pronounced itself on the issue of ownership of the parcel of land known as NJORO/NGATA BLOCK 2/1613 (KIROBON“A\') and cannot therefore sit as an appeal court to determine whether or not the Applicant\'s right to property will be infringed as a result of a lawful process of execution. That it is upon the Applicant to prove the substantial loss he would suffer if the court declines to issue the orders sought. As things stand, he is not on the disputed land as he is residing in New Jersey.
I have considered the application and reply and order 42 rule 6 provides. Order 42 Rule 6 (1) and 2 of the Civil Procedure Rules which stipulates as follows: -6.(1)No appeal or second appeal shall operate as a stay of execution or proceedings under a decree or order appealed from except appeal case of in so far as the court appealed from may order but, the court appealed from may for sufficient cause order stay of execution of such decree or order, and whether the application for such stay shall have been granted or refused by the court appealed from, the court to which such appeal is preferred shall be at liberty, on application being made, to consider such application and to make such order thereon as may to it seem just, and any person aggrieved by an order of stay made by the court from whose decision the appeal is referred may apply to the appellate court to have such order set aside.(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.
The fact that the application has been filed timeously is not in doubt. On substantial loss, I do find that the there is no evidence that the applicant will suffer substantial loss if he stops farming or rearing chickens on the land. Both the applicant and the respondent were in possession of the property at the time of judgment and therefore there would be no substantial loss if he remains in possession. However, this court has a duty to preserve the subject matter to pre-empt any disposal before the determination of the appeal. The court, in RWW v EKW [2019] eKLR, considered the purpose of a stay of execution order pending appeal, in the following words: “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 success of a litigant who should not be deprived of the fruits of his/her judgment. The court is also called upon to ensure that no party suffers prejudice that cannot be compensated by an award of costs. Indeed to grant or refuse an application for stay of execution pending appeal is discretionary. The Court when granting the stay however, must balance the interests of the Appellant with those of the Respondent.”
I do find the application is merited only to the extent of preserving the subject matter and therefore I do order that the parcel of land should not be disposed by sale, mortgage or otherwise pending the hearing and determination of appeal. There should be no demolition of any structure on the suit property. Otherwise, the application is not allowed. No order as to costs.
Ruling dated, signed and delivered electronically this 30th day of September 2024.