Introduction
1. Vide a notice of motion application dated 7th April 2025 and filed on an even date, the appellant/applicant seeks an order of stay of execution of the judgment delivered on 25th April 2025 and the decree issued in respect thereof, dated 25th February 2025 pending the hearing and determination of the application and the appeal.
2. As can be discerned from the grounds on the face of the application and the averments contained in the affidavit sworn in support of the application, the application is premised on the grounds that the applicant who was dissatisfied with the judgment of the lower court preferred an appeal to this court, which appeal is arguable and has high chances of success; that he has been in occupation of the suit property for over 26 years and has done significant development thereon which development now faces imminent danger of total destruction as the respondent has invaded the suit property on the strength of the judgment and decree appealed from (the respondent is said to be carrying activities in the suit property likely to occasion breach of peace).
3. It is the applicant’s case that the actions of the respondent complained of amount to commencement of execution of the decree dated 25th February 2025 un procedurally and in a grotesque, unorthodox manner.
4. The applicant is apprehensive that unless the orders sought are granted, the respondent may execute the decree issued in his favour thereby rendering the appeal nugatory.
5. It is the applicant’s case that the application has been brought without any delay and that it is in the interest of justice that the orders sought be granted.
6. In reply and opposition to the application, the respondent filed the replying affidavit he swore on 15th May 2025 in which he deposes/contends that he has executed the decree issued in his favour by reclaiming possession of the suit property and cultivating it.
7. The respondent avers that when he was organizing to plant crops on the suit property, the appellant/applicant through his agent (a third party) attempted to reclaim the suit property causing him (respondent) to get the applicant’s agent arrested and charged in Nyahururu for trespass to land and damage to property.
8. The respondent has further deponed that upon delivery of the judgment appealed from, the applicant was granted by the trial court 30 days stay of execution which period/stay lapsed without the applicant filing an application for stay or seeking to extend the period of stay granted by the court.
9. The respondent contends that the applicant has not satisfied the conditions set in order 42 Rule 6 of the Civil Procedure Rules for grant of an order for stay of execution pending appeal. In that regard, the respondent contends that the applicant has not demonstrated that unless the orders sought are granted, he stands to suffer irreparable or substantial loss; that the applicant has not offered or proposed to offer any security for due performance of such obligation as may be binding against him as a sign of good faith and that there has been undue delay in lodging the application as judgment was delivered on 23rd April 2024 and the application for stay filed on 15th April 2025, one year after the delivery of the judgment.
10. It is pointed out that the applicant has not given any reason and/or offered explanation for the undue delay in filing the application.
11. It is the respondent’s case that granting the orders sought would amount to an eviction against him.
12. As to whether denial of the orders sought would render the appeal nugatory, the respondent states that it will not as the title for the suit property is still with the Settlement Fund Trustee.
13. The application was heard orally on 20th May 2025.
14. Counsel for the applicant reiterated the averments/contentions contained in the affidavit sworn in support of the application and urged the court to allow the application.
15. Counsel for the respondent relied on the affidavit of the respondent filed in reply and opposition to the application and the cases listed in the respondent’s list of authorities, dated 15th May 2025.
16. Maintaining that there is inordinate unexplained delay in filing the application, counsel for the respondent submitted that the applicant woke up after the respondent extracted a decree and executed it.
17. Counsel for the respondent asserted the averment contained in the respondent’s replying affidavit that it is the respondent who is in occupation of the suit property and asserted the contention that the applicant has not met the conditions set under Order 42 Rule 6 of the Civil Procedure Rules for grant of stay pending appeal. ln that regard, he maintained that there was delay in bringing the application for stay; failure to offer security and failure to demonstrate that unless stay is granted, the applicant stands to suffer substantial loss. He pointed out that the applicant has not attached any photographs to the affidavit he swore in support of the application showing developments referred to.
18. In a rejoinder, Counsel for the applicant submitted that they have demonstrated substantial loss and provided reason for delay. On failure to offer security, he submitted that the court can make any order on security.
19. Regarding the alleged difference between the signature in the pleadings in the lower court and the pleadings in the application herein, Counsel submitted that the issue is neither here nor there and confirmed that the pleadings in this matter were filed by the appellant/applicant.
Analysis and determination
20. As pointed out herein above, the applicant brought the instant application seeking an order of stay of execution of the judgment and decree issued in favour of the respondent by the lower court in the suit hereto.
21. The reasons for seeking stay for execution are as enumerated herein above.
22. The application is opposed by respondent on the grounds flagged out herein above.
23. To be granted an order of stay pending appeal, the applicant has to satisfy the conditions set out in Order 42 Rule 6 subrule 2 of the Civil Procedure Rules. These are:-
a) Substantial loss may result to the applicants unless
the order is made;
b) That the application has been made without
unreasonable delay; and
c) The applicant has given such security as the court
orders for the due performance of such decree or order as may ultimately be binding on him.
24. In applying the above conditions to the case, I start by pointing out that the application for stay was brought one year after the judgment appealed from was delivered. No explanation has been offered by the respondent for the delay, which I find to be inordinate in the circumstances of this case. The applicant has also failed to furnish security for due performance of such obligation as may attach to him arising from the appeal. More importantly, other than claiming that unless the orders sought are granted he may suffer irreparable/substantial loss, the applicant has not bothered to lay bare to the court the kind of loss he stands to suffer if stay is not granted.
25. In the circumstances of this case, the applicant appears to have been awoken by the execution process began/undertaken by the respondent. Initiation of execution process per se cannot form a ground for granting an order of stay of execution. This is so because, unless there exists an order of stay of execution, execution is a lawful legal process.
26. The claim by the applicant that the respondent is carrying the execution without complying with the applicable procedure are issues to be dealt with by the court that issued the decree or the court executing the decree but not an appellate court.
27. In view of the foregoing, I find the applicant’s application dated 7th April 2025 to be lacking in merit and dismiss it with costs to the respondent.
28. Orders accordingly.
Dated, signed and delivered virtually this 4th day of June, 2025.
Ruling delivered virtually in the presence of:
Mr Songoyo for the applicant
Mr Chebii for the respondent
C/A Lilian