REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT KISUMU
ELC APPEAL NO. E054 OF 2025
CHARLES NYAGUDI BUDI.....................................APPELLANT
-VERSUS-
HOSTINE AUMA KAPERE…………………………..1ST RESPONDENT
LAND REGISTRAR, KISUMU………………………2ND RESPONDENT
HON. ATTORNEY GENERAL..........................3RD RESPONDENT
RULING
This appeal is against the judgment of Hon. K.Cheruiyot, SPM delivered on 24th June 2025 in Kisumu MCELC No. E070 of 2024 (hereinafter referred to as “the lower court suit”). In the lower court, the Appellant, who was the plaintiff, claimed that at all material times, he was the registered owner of all those parcels of land known as Title No. Kisumu/Konya/8642 and Title No. Kisumu/Konya/8643 (hereinafter referred to as “the suit properties”). The Appellant averred that the 1st Respondent in collusion with the 2nd Respondent, fraudulently, unlawfully, illegally, irregularly, and unprocedurally caused the suit properties to be transferred and registered in the name of the 1st Respondent without the Appellant’s involvement. The Appellant sought judgment against the Respondents for: a permanent injunction restraining the 1st Respondent from evicting the Appellant from the suit properties, a declaration that the transfer of the suit properties to the 1st Respondent was irregular, unprocedural, illegal, unlawful, null and void, the cancellation of the titles held by the 1st Respondent in respect of the suit properties, mesne profits, and an order of eviction of the 1st Respondent from the suit properties.
The lower court heard the Appellant’s claim against the Respondents. In a judgment delivered on 24th June 2025, the lower court found no merit in the suit and dismissed the same with no order as to costs. The Appellant was dissatisfied with the judgment of the lower court and filed this appeal on 25th June 2025. In his memorandum of appeal of the same date, the Appellant challenged the lower court judgment on several grounds.
What is before me is the Appellant’s application, brought by way of a Notice of Motion dated 25th June 2025, under Sections 1A, 1B,3A and 63 of the Civil Procedure Act, Chapter 21 Laws of Kenya, and Order 40 Rules 2 (1) and (2) of the Civil Procedure Rules. In the application, the Appellant has sought a stay of sale and/or further transfer of the suit properties pending the hearing and determination of the appeal.
The application is supported by the affidavit and supplementary affidavit of the Appellant sworn on 25th June 2025 and 17th July 2025. The Appellant averred that before the delivery of the lower court judgment, the 1st Respondent had been visiting the suit properties with potential purchasers with whom the 1st Respondent had entered into agreements of sale. The Appellant averred the conclusion of the sale transactions between the Appellant and the said purchasers was only awaiting the determination of the lower court suit. The Appellant averred that the sale of the suit properties would render the appeal nugatory. The Appellant averred that he was willing to abide by any terms or requirements that the court may impose as a condition for granting the stay sought.
The application was opposed by the 1st Respondent through a replying affidavit sworn on 14th July 2025. The 1st Respondent denied that he had visited the suit properties with potential purchasers. The 1st Respondent averred that the lower court merely dismissed the Appellant’s suit. The Respondent averred that the lower court order was negative in nature and as such was not capable of being stayed. The 1st Respondent averred that the Appellant’s application lacked a basis, was procedurally flawed, and amounted to an abuse of the court process.
Analysis and determination
The Application was argued by way of written submissions. The Appellant filed submissions dated 6th August 2025, while the 1st Respondent filed submissions dated 1st September 2025. I have considered the Appellant’s application together with the affidavits filed in support thereof. I have also considered the replying affidavit filed by the 1st Respondent in opposition to the application. Finally, I have considered the submissions by the advocates for the parties. The Appellant anchored his application on Sections 1A, 1B,3A and 63 of the Civil Procedure Act, Chapter 21 Laws of Kenya, and Order 40 Rule 2 (1) and (2) of the Civil Procedure Rules. Sections 1A, 1B,3A and 63 of the Civil Procedure Act deal with the inherent power of the court, the objectives of the Civil Procedure Act and Rules, and the supplemental proceedings. Order 40 Rule 2(1) and (2) of the Civil Procedure Rules on the other hand, deals with injunction pending the hearing and determination of a suit.
Order 40 Rule 2 of the Civil Procedure Rules provides as follows:
“2. (1) In any suit for restraining the defendant from committing a breach of contract or other injury of any kind, whether compensation is claimed in the suit or not, the plaintiff may, at any time after the commencement of the suit, and either before or after judgment, apply to the court for a temporary injunction to restrain the defendant from committing the breach of contract or injury complained of, or any injury of a like kind arising out of the same contract or relating to the same property or right.
(2) The court may by order grant such injunction on such terms as to an inquiry as to damages, the duration of the injunction, keeping an account, giving security or otherwise, as the court deems fit.”
I am of the view that the provisions of the Civil Procedure Act and Rules cited by the Appellant do not apply to the Appellant’s application. The Appellant is seeking a stay-cum-injunction post judgment pending the hearing and determination of an appeal. The Civil Procedure Rules provide for a stay and an injunction pending appeal. It is not necessary, therefore, to anchor an application for such remedies on the inherent power of the court or on supplemental proceedings. The Appellant has sought a stay of sale and/or further transfer of the suit properties pending the hearing and determination of this appeal. The power of this court to stay the execution of the judgment of the lower court is provided for in Order 42 Rule 6 of the Civil Procedure Rules. Order 42 Rule 6(1) and (2) of the Civil Procedure Rules provides 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 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 preferred may apply to the appellate court to have such order set aside.
(2) 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 ultimately be binding on him has been given by the applicant.”
In Kenya Shell Limited v. Karuga (1982 – 1988) I KAR 1018 the court stated that:
“It is usually a good rule to see if order XLI rule 4 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 jurisdictions for granting a stay. That is what has to be prevented. Therefore, without this evidence, it is difficult to see why the respondents should be kept out of their money.”
The Appellant’s application was brought without unreasonable delay. I am, however, not satisfied that the Appellant is likely to suffer substantial loss if the stay sought is not granted. It is not disputed that the lower court merely dismissed the Appellant’s suit against the Respondents and ordered each party to bear its own costs. The court did not order the parties, both the Appellant and the Respondents, to do or refrain from doing anything. The order made by the lower court is referred to as a negative order. The Appellant has sought a stay of the sale of the suit properties. The lower court did not order the sale of the suit properties. This court cannot, therefore, stay a non-existent order or decree pending appeal.
As correctly submitted by the 1st Respondent’s advocate, a negative order is not capable of being stayed. In Kanwal Sarjit Singh Dhiman v. Keshavji Jivraj Shah [20008] eKLR, the Court of Appeal stated as follows:
“The 2nd prayer in the application is for stay (of execution) of the order of the superior court made on 18th December, 2006. The order of 18th December, 2006 merely dismissed the application for setting aside the judgment with costs. By the order, the superior court did not order any of the parties to do anything or refrain from doing anything or to pay any sum. It was thus a negative order which is incapable of execution save in respect of costs only.”
The same reasoning was applied by Makhandia J. (as he then was) in Raymond M. Omboga v. Austine Pyan Maranga, Kisii HCCA No 15 of 2010, where he stated as follows:
“The order dismissing the application is in the nature of a negative order and is incapable of execution save, perhaps, for costs and such order is incapable of stay. Where there is no positive order made in favour of the respondent which is capable of execution, there can be no stay of execution of such an order.”
The order dismissing the Appellant’s suit cannot, therefore, be stayed. This court has the power to grant an injunction pending appeal. The power is provided for in Order 42 Rule 6(6) of the Procedure Rules, which provides as follows:
“(6) Notwithstanding anything contained in subrule (1) of this rule the High Court shall have power in the exercise of its appellate jurisdiction to grant a temporary injunction on such terms as it thinks just provided the procedure for instituting an appeal from a subordinate court or tribunal has been complied with.”
The application before me is not expressly seeking a temporary injunction pending appeal. Even if I were to consider it as an application under Order 42 Rule 6(6) of the Civil Procedure Rules, I am not persuaded that the appellant has established sufficient grounds for such an injunction to issue. The principles that this court applies in applications for injunction pending appeal are not different from those employed by the Court of Appeal on applications for an injunction pending the hearing of appeals to that court under Rule 5(2)(b) of the Court of Appeal Rules. The jurisdiction to grant an injunction pending appeal is discretionary and is guided by the interests of justice. In the exercise of this discretion, the court must be satisfied that the appeal before it is arguable and that if the order sought is not granted and the appeal succeeds, the appeal will be rendered nugatory.
In Trust Bank Limited and Another v. Investech Bank Limited and 3 Others [2000] eKLR, the Court of Appeal stated that:
“The jurisdiction of the Court under Rule 5(2)(b) is original and discretionary and it is trite law that to succeed an applicant has to show firstly that his appeal or intended appeal is arguable, to put another way, it is not frivolous and secondly that unless he is granted a stay the appeal or intended appeal, if successful will be rendered nugatory. These are the guiding principles but these principles must be considered against facts and circumstances of each case…”
In Stanley Kang’ethe Kinyanjui v. Tony Ketter & 5 others [2013] eKLR, the same court stated as follows:
“vi) On whether the appeal is arguable, it is sufficient if a single bonafide arguable ground of appeal is raised. Damji Pragji Mandavia v Sara Lee Household & Body Care (K) Ltd, Civil Application No. Nai 345 of 2004.
vii. An arguable appeal is not one which must necessarily succeed, but one which ought to be argued fully before the court; one which is not frivolous. Joseph Gitahi Gachau & Another v. Pioneer Holdings (A) Ltd. & 2 others, Civil Application No. 124 of 2008.”
I have perused the Appellant’s grounds of appeal against the judgment of the lower court. This court can only determine whether the Appellant’s appeal is arguable or not upon perusing the judgment of the lower court. The Appellant did not annex a copy of the judgment of the lower court to his affidavit in support of the application. I am unable, in the circumstances, to appreciate the issues raised in the grounds of appeal. I cannot, therefore, determine whether any of the grounds of appeal is arguable. Although the sale of land which is the subject of an appeal may render the appeal nugatory, without the Appellant establishing that his appeal is arguable, the court cannot issue an order of injunction pending appeal in his favour.
Conclusion
The upshot of the foregoing is that the Appellant’s Notice of Motion application dated 25th June 2025 has no merit. The application is dismissed with costs to the 1st Respondent.
Delivered and signed at Kisumu on this 23rd day of October 2025
S. OKONG’O
JUDGE
Ruling delivered virtually through Microsoft Teams Video Conferencing Platform in the presence of:
Mr. Matete for the Appellant
Ms. Mutesi h/b for Mr. Omondi for the 1st Respondent
N/A for the 2nd and 3rd Respondents
Ms. J.Omondi-Court Assistant
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