RULING
1. By a Notice of Motion dated dfsdfsdfs, brought under Order 42 Rule 6, Sections 3, 3A, 63(e) and 79G of the Civil Procedure Act and Order 51 of the Civil Procedure Rules and “all other enabling provisions of the law”, the Appellant moved this Court for a number of Orders. These were that,
a) …Spent.
b) …Spent.
c) THAT this Honorable Court be pleased to order stay of execution of the judgement delivered by Hon. S. ONGERI Principal Magistrate on the 20th day of November 2025 together with the decretal orders consequential therefrom pending hearing and determination of this Appeal.
d) THAT costs of this application be provided for.
2. The application was brought on the grounds that the Court in Oyugis ELC No. E018 of 2023 delivered judgement on the 20th November 2025 in favour of the Respondents against the appellant. The Appellant/Applicant was not granted any stay of execution. The appellant/Applicant is faced with imminent threat of the Respondents executing the said orders of the judgement and will render the Appeal nugatory. The Appellant is aggrieved by the said judgement. The Appellant has an arguable appeal with a great chance of success and the same will be rendered nugatory if execution takes place. The Appellant are apprehensive that if the Respondent executes the said judgement it will be highly prejudicial and detrimental to the Appellant as the Respondent may not be able to refund the decretal if this Appeal succeeds. The Applicant is ready and willing to abide by the condition /terms that the Honorable Court may impose. This application is made of good faith and will not occasion any prejudice to the Respondent. It is in the interest of justice that the orders sought herein be granted.
3. The application was supported by the Affidavit of Doris Awino Akira, sworn on adsdsadsasda. She repeated the contents of the grounds in deposition form. She annexed and marked as DAA-1 a copy of Memorandum of Appeal and DAA-2 a copy of Judgement, and DAA-3 a copy of the Memorandum of Appeal in this matter. She added that the appeal is arguable and had overwhelming chances of success as it raised strong points of law and fact. The intended appeal would be rendered nugatory unless the stay sought was granted. There was an imminent threat of execution of the judgement which would render the Appeal nugatory. The Respondents would not be prejudiced in the event that the application was allowed. The appellants were willing and ready to abide by any terms the Court may impose. The application was made in good faith and without delay.
4. The application was opposed through a Replying Affidavit sworn by Philip Oloo Ouko, the 2nd Respondent, on ddfdffds . He added that he was the successful Counter-claimant in the lower court suit. He deponed that the Application was an afterthought, brought in bad faith, and intended to delay the enjoyment of the fruits of his successful judgment. He purchased the portion of the suit land, being part of West Kasipul/Kodera Karabach/2693) from the Appellant’s family, paid the full purchase price of Kshs. 120,000/=, and provided an additional sum of Kshs. 20,000/= to the Appellant, specifically for the Succession process. The trial Court correctly found that the Appellant’s attempt to rely on Section 45 of the Law of Succession Act to invalidate the sale was unconscionable and bordered on "bad faith and unconscionable bargain."
5. He added that he had been in peaceful and open possession of the suit land for a period exceeding 12 years, utilizing the same without interference until the Appellant filed the suit in the lower court. The intended Appeal was not arguable and based on a desire to perpetrate "unjust enrichment" at the Respondent’s expense. The Appeal would not be rendered nugatory if the stay was denied. On the contrary, the Respondent was the one suffering irreparable loss because he was being denied the formal legal title to the land he occupied and improved for over a decade. The Appellant had not demonstrated any "substantial loss" she would suffer if the judgment was executed. The Respondent was already in possession of the suit land. The judgment merely sought to regularize the legal title to match the physical reality.
6. If the Court was inclined to grant a stay of execution, it should be on the condition that the Appellant deposits a substantial security for costs in court because the Respondent was apprehensive the Appellant had no means to satisfy the costs of both the Appeal and the Lower Court suit. The Application was fatally defective and an abuse of the court process because the Applicant failed to satisfy the mandatory requirements of Order 42 Rule 6 by not moving the Trial Court first; the Applicant treated the Directions of this Court issued on 11th December 2025 with contempt by failing to file the Decree within the seven-day window provided; the Application was served outside the strict timelines set by this Court; the Applicant had not provided any security for the due performance of the Decree as may be ultimately binding upon them. The provision of security was a cornerstone for the exercise of the Court’s discretion in granting a stay of execution. By failing to propose any form of security—such as a bank guarantee or a cash deposit in Court—the Applicant demonstrated a lack of commitment to the legal process and left the 2nd Respondent’s hard-won judgment at risk of being rendered a paper tiger. The Appellant had exhibited a total lack of diligence and taken no meaningful steps to fast-track the filing or hearing of the intended appeal. The Applicant had not demonstrated that he applied for or obtained the typed proceedings from the Lower Court. This inaction was a tactic designed to frustrate the 2nd Respondent’s enjoyment of the fruits of his judgment.
7. At the inter partes hearing the parties agreed that stay of execution be granted but did not agree on the security to be given by the appellant. The application was disposed of by way of written submissions.
8. The appellant, vide submissions dated, 22nd January 2026, argued that the court allowed the parties herein to deliberate on sufficient security to be paid/deposited in court in compliance with Order 42 Rule 6 of the Civil Procedure Rules. The appellant agreed to deposit her original title deed in court as security for the due performance of the decree. Despite that, the Respondents wanted the Appellant to deposit further security in monetary value besides the title deed. He added that the title deed was valued at Kenya Shillings One Million (1,000,000/=. He then gave the factual background of the application.
9. Regarding the legal framework on the application he argued that Order 42, Rule 6 of the Civil Procedure Rules, 2010, empowered the Court to grant a stay of execution where the Applicant demonstrated substantial loss, files the application without unreasonable delay, and provides such security as the court may order for the due performance of the decree. He added that the deposit of an original title deed created an equitable charge or mortgage, enforceable by the court through sale if necessary. Such security was recognized as sufficient to satisfy the requirements of Order 42, Rule 6 of the Civil Procedure Rules. He relied on the Court of Appeal case of National Bank of Kenya Ltd v. Pipeplastic Samkolit Kenya Ltd [2001] eKLR. In it their Lordships emphasized that refusing a stay solely because the security is in the form of a title deed, rather than cash or a bank guarantee, would be erroneous where the property's value is demonstrably adequate. He also relied on the case of Kenya Commercial Bank Ltd v. Muiri Coffee Estate Ltd [2011] eKLR and the Giella v. Cassman Brown & Co. Ltd [1973] eKLR, and the Court of Appeal case of African Highland Produce Ltd v. John Kisorio [2000] eKLR; and Butters (Kenya) Ltd v. Haji [1986] KLR 386.
10. He prayed that the court confirms that the title deed deposited constituted sufficient security under Order 42, Rule 6 of the Civil Procedure Rules, 2010.
11. The 2nd Respondent filed written submissions dated 5th February 2026. She argued that while the court has the discretion to accept various forms of security, that discretion must be exercised to ensure that the Respondents were not prejudiced by the delay of an appeal. She urged the 2nd Respondent be ordered to supplement the title deed (deposited), with a cash deposit of Kshs 100,000/= for each Respondent. He argued that for security to be "Sufficient", it must be effective, realizable, and certain hence the title was a non-liquid asset. Its "Forced Sale Value" of Kshs 750,000/= and a buyer of a disputed parcel of land as the one in issue could take years to sell. Further, using the entire title deed as security for costs when the land itself is the subject of the dispute creates a circular legal problem. He proposes a cash security of Kshs 100,000/= per Respondent to be deposited in a joint interest-earning account. He gave reasons for this because an appeal was a costly venture. He discounted the Appellant’s age of seventy four (74) years and status as widow as factors to consider. He relied on the case of Westmont Holdings SDN BHD v Central Bank of Kenya & 2 others [2023] KESC 11 (KLR). in it the Supreme Court reiterated that security for costs serves to safeguard a Respondent against the real risk that a costs order may be rendered nugatory due to the appellant’s inability or unwillingness to pay.
12. She distinguished the Appellant’s cited authorities, such as National Bank of Kenya Ltd v. Pipeplastic Samkolit (sic), as relating to commercial disputes where land value was undisputed and "clear." she urged that the Court orders a hybrid security: the title deed to secure the performance of the land transfer, and Kshs 200,000/= (total) to secure the costs for both Respondents.
ISSUE, ANALYSIS AND DETERMITION
13. This court has considered the instant application, the facts, the law and the parties’ submissions. The only issue for determination is whether the Applicant should be ordered to provide security for the due performance of the decree pending the determination of the appeal given that she has already deposited the original title in court, to safeguard the land from disposition or otherwise.
14. I have carefully considered the parties’ submissions. The Applicant argues that the title whose forced value he places above KShs 750,000/= is sufficient and that having been deposited in court that of itself creates a charge over it. The Respondent thinks otherwise and argues that a sum of KShs 200, 000/= in total should be deposited besides the title. The parties place reliance on a number of decisions as cited above, and which this court has very deeply considered.
15. In Arun C Sharma -v- Ashana Raikundalia T/A Rairundalia & Co. Advocates, [2014] eKLR the Court stated that:
“The purpose of the security needed under Order 42 is to guarantee the due performance of such decree or order as may ultimately be binding on the applicant. It is not to punish the judgment debtor………. Civil process is quite different because in civil process the judgment is like a debt hence the applicants become and are judgment debtors in relation to the respondent. That is why any security given under Order 42 rule 6 of the Civil Procedure Rules acts as security for due performance of such decree or order as may ultimately be binding on the applicants. I presume the security must be one which can serve that purpose.”
16. Similarly, in the case of Focin Motorcycle Co. Limited v Ann Wambui Wangui & another [2018] eKLR, it was stated that:
“Where the applicant proposes to provide security as the Applicant has done, it is a mark of good faith that the application for stay is not just meant to deny the respondent the fruits of judgment. My view is that it is sufficient for the applicant to state that he is ready to provide security or to propose the kind of security but it is the discretion of the Court to determine the security. The Applicant has offered to provide security and has therefore satisfied this ground for stay.”
17. Further, this court is persuaded by the decision of National Bank of Kenya Ltd v. Pipeplastic Samkolit Kenya Ltd [2001] eKLR. In it their Lordships emphasized that refusing a stay solely because the security is in the form of a title deed, rather than cash or a bank guarantee, would be erroneous where the property's value is demonstrably adequate. He also relied on the case of Kenya Commercial Bank Ltd v. Muiri Coffee Estate Ltd [2011] eKLR and the Giella v. Cassman Brown & Co. Ltd [1973] eKLR, and the Court of Appeal case of African Highland Produce Ltd v. John Kisorio [2000] eKLR; and Butters (Kenya) Ltd v. Haji [1986] KLR 386.
18. Additionally, in the case of Westmont Holdings SDN BHD v Central Bank of Kenya & 2 others [2023] KESC 11 (KLR), the Supreme Court reiterated that security for costs serves to safeguard a Respondent against the real risk that a costs order may be rendered nugatory due to the appellant’s inability or unwillingness to pay.
19. She distinguished the Appellant’s cited authorities, such as National Bank of Kenya Ltd v. Pipeplastic Samkolit (sic), as relating to commercial disputes where land value was undisputed and "clear."
20. Guided by the above decisions, it is my considered view that the requirement to for a party deposit security for due performance of the decree should not be a tool for punishing an Appellant or bar them from pursuing justice for the reason of inability to raise the sums that may be required by the court for such a purpose. In my humble view as long as the appellant is willing to raise the sum of money or give property that would safeguard the interests of both parties during the pendency of an Appeal then the court should receive such security as it would consider sufficient to be deposited in order to facilitate access to injustice. In the instant case I have considered the fact that the Appellant has already deposited a title deed whose value, it has been submitted by the respondent, to be a forced value of Kenyan shillings 750,000/= of which he is to give that as security and or add any other sum that the Court may deem fit. It has been submitted that he should raise a sum of Kenyan Shillings 200,000/=. However, it is my considered view that since he already has deposited the title deed in court, a sum of Kenya shillings 15,000/= to be deposited within the next 30 days would be reasonable security in addition to the already deposited title deed. In arriving at this, the court has considered the factual offer by the appellant that he is willing to first track appeal and also the proceedings in the original file have been typed. Therefore, the appeal can proceed to hearing within the shortest time possible. The record of appeal has since been filed and the appellant has filed written submissions on it today. Thus, this appeal is admitted today for hearing by way of written submissions. Since the appellant has filed his written submissions, the Respondent has 15 days to file theirs upon service. The appeal be heard on 15th May 2026.Hearing Notice and the directions on the timelines to issue to counsel for the other Respondent who is absent.
21. Orders accordingly.
Ruling dated, signed and delivered virtually via the Teams Platform this 24th day of April 2026.
Hon. Dr. iur Nyagaka
Judge