This ruling is in respect of the Defendants/Applicants Notice of Motion application dated 28th October, 2024 which sought the following orders;
a. Spent.
b. Spent.
c. THAT this Honourable court be pleased to issue an order of stay of execution and implementation of all the terms of the judgment delivered on 16th October, 2024 pending the inter-parties hearing and determination of the Applicant’s Appeal against the whole of the said judgment.
d. THAT the costs of this application be provided for.
The grounds on the face of the application are that judgement was delivered on 16th October, 2024 and the Applicants being aggrieved by the said judgement, filed an appeal.
The application was supported by the affidavit of JOHN OLE LINTI sworn on 28th October, 2024. He reiterated the grounds on the face of the application and stated that judgment was delivered electronically on 16th October, 2024 and since none of the parties or Advocates were present, no oral application for stay of execution was made. He stated that the Respondents were keen to execute the terms of the judgment. That being dissatisfied with the judgment, the Applicants filed a Notice of Appeal dated 23rd October, 2024 and also requested the court for typed proceedings.
He stated that the appeal shall be rendered nugatory and that the Applicants shall suffer substantial loss if the judgment is executed. He further stated that it would only be fair and in the interest of justice that the status quo and the judgment be maintained pending the hearing and determination of the appeal. He also stated that the Applicants shall abide by any conditions that the court shall deem fit to issue. He added that the Respondents shall not suffer any prejudice if the stay is granted.
Response
In response, the 1st Respondent filed his Replying Affidavit sworn on 30th October, 2024 where he averred that that the application does not meet the criteria for stay of execution. He further averred that the Applicant have not shown how they will be prejudiced if the stay orders are not granted. He averred that advised by their advocates that the court having delivered its judgment, it became functus officio. He further averred that the 1st to 6th Applicants do not stand to suffer any harm since they do not own the suit properties.
The 1st Respondent averred that the Applicants failed to give any reason as to why they ought to continue holding the suit titles which the court found to have been illegally obtained. He also averred that as advised by their advocate, the filing of the present application promptly does not qualify for grant of the stay orders. He averred that the Applicants have not filed an appeal neither have the Respondents commenced execution proceedings and added that the application has since been rushed. He averred that the Applicants have not offered any security for costs.
The Applicants also filed a Further Affidavit sworn on 11th November, 2024 where they reiterated the contents of the supporting affidavit. He added that the notice of appeal is still in force since no contrary orders have been granted. He also added that the decree is not a money decree thus the requirement to provide security for costs does not apply.
Submissions
Counsel for the Applicant filed his submissions dated 11th November, 2024 where he submits that judgment was delivered on 16th October, 2024 after which they filed and served the Notice of Appeal on 23rd October, 2024. He further submits that the present application was presented before court five days after filing of the Notice of Appeal and twelve days after judgment. He submits that the Applicants have therefore approached the court with speed.
He submits that the judgment ordered the immediate cancellation of the title deeds for the suit property and the same be re-issued in the names of the 17 Defendants in Nakuru HCCC No. 89 of 1996. He submits that the Applicants who are the registered proprietors of the present titles shall suffer substantial loss. He submits that it is only fair and just that the status quo and the judgment be preserved as the Applicants pursue their appeal. Counsel further submits that the 1st Respondent shall suffer no prejudice since where he lives shall not be interfered with pending hearing and determination of the appeal. Counsel cited the case of NAKURU H.C ELC NO. E001 OF 2021 DUNCAN GITHAIGA MUCHIRI & 4 OTHERS V CHARLES NJUGUNA MUGANE
On security for costs, he submits that the Applicants are ready to deposit the original title deeds for the suit properties to the court’s custody as security as they pursue the appeal.
Counsel for the 1st Respondent filed his submissions dated 18th November, 2024 where he identified one issue for determination, whether the Applicants’ application for stay is merited. He relied on Order 42 Rule 6 (2) of the Civil Procedure Rules that provides for the conditions to be meet for grant of stay of execution pending appeal. On the first condition, he submits that Applicants have not placed anything before the court to demonstrate that they will suffer any substantial loss if the orders they are seeking are not granted. He further submits that the suit parcels of land do not belong to the 1st to 6th Applicants’ as the said proprietary rights were fraudulently obtained thus they have not demonstrated any loss. He submits that the Applicants admitted in their submissions that the Respondents could suffer a bit longer as they wait for the intended appeal to be heard and determined. He further submits that the same is an admission that the Respondents are suffering prejudice, which the court cannot extend the said suffering for the interests of the Applicants.
The second condition on security for costs he submits that the Applicants have not offered any security as required by law. He further submits that they have purported to offer the title deeds for the suit properties which are not their personal land but community parcels of land. He also submits that the titles they intend to deposit as security have been found to have been obtained fraudulently. It was counsel’s submission that the court having delivered its judgment, it became functus officio and granting stay will be like rewriting its judgment to allow the Applicants to continue holding the fraudulently obtained title.
He submits that the Respondents have not commenced any execution of the decree and the costs awarded have not been assessed yet thus there is no risk of execution. He submits that the Applicants have not met the criteria laid by law for the stay of judgment and urged the court to dismiss the application with costs. He also submits that in the event the court is inclined to grant the sought stay, he urged the court to order the Applicants be ordered to deposit the costs to be assessed so as to balance the interests of the parties herein.
Analysis and determination
The Court has considered the application and the main issue for determination is whether orders of stay of execution pending appeal should issue.
Order 42 Rule 6 (1)(2) of the Civil Procedure Rules provides as follows;
“(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 may ultimately be binding on him has been given by the applicant.
In RWW V EKW [2019] eKLR the court held as follows:
“...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.”
For this court to grant an order of stay of execution, the Applicants must demonstrate that they filed the application under consideration without unreasonable delay, that they will suffer substantial loss if the orders sought are not granted and that they are willing to deposit security for costs. It is also noteworthy that the court should endeavor to balance the interests of both the successful party in litigation so as not to unnecessarily bar them from enjoying the fruits of judgment and that of the Appellant whose appeal may succeed and be rendered nugatory if stay of execution is not granted.
On the issue of delay, a perusal of the court record shows that judgement in the matter was delivered on 16th October, 2024 and the Applicants filed a Notice of Appeal filed on 23rd October, 2024. It is this court’s view that the same was within the statutory time provided to file an appeal. It is noteworthy that judgment was delivered on 16th October, 2024 and the Application filed on 28th October, 2024 translating to a period of about 11 days. This court is of the view that that the period does not amount to inordinate delay.
The Applicants have to also demonstrate that unless the court grants stay of execution orders pending appeal, they stand to suffer substantial loss. The Applicants argued that Respondents were keen to execute the terms of the judgment. It is this court’s view that since execution is yet to commence, the Applicants failed to demonstrate the substantial loss they would suffer if stay is not granted. Moreover, the applicants have not shown the substantial loss that they are likely to suffer since they are not in possession and have not developed the same.
On the issue of security of costs, although the Applicants have expressed their willingness to offer security of costs, this court can exercise its discretion regarding the security for costs to be offered by them.
This court is of the view that grant of stay remains a discretionary order that must consider the fact that the court ought not to make a practice of denying a successful litigant the fruits of their judgment.
In the upshot, this court finds no merit in the application and the same is dismissed with costs. It is so ordered.
a. Spent.
b. Spent.
c. THAT this Honourable court be pleased to issue an order of stay of execution and implementation of all the terms of the judgment delivered on 16th October, 2024 pending the inter-parties hearing and determination of the Applicant’s Appeal against the whole of the said judgment.
d. THAT the costs of this application be provided for.
The grounds on the face of the application are that judgement was delivered on 16th October, 2024 and the Applicants being aggrieved by the said judgement, filed an appeal.
The application was supported by the affidavit of JOHN OLE LINTI sworn on 28th October, 2024. He reiterated the grounds on the face of the application and stated that judgment was delivered electronically on 16th October, 2024 and since none of the parties or Advocates were present, no oral application for stay of execution was made. He stated that the Respondents were keen to execute the terms of the judgment. That being dissatisfied with the judgment, the Applicants filed a Notice of Appeal dated 23rd October, 2024 and also requested the court for typed proceedings.
He stated that the appeal shall be rendered nugatory and that the Applicants shall suffer substantial loss if the judgment is executed. He further stated that it would only be fair and in the interest of justice that the status quo and the judgment be maintained pending the hearing and determination of the appeal. He also stated that the Applicants shall abide by any conditions that the court shall deem fit to issue. He added that the Respondents shall not suffer any prejudice if the stay is granted.
Response
In response, the 1st Respondent filed his Replying Affidavit sworn on 30th October, 2024 where he averred that that the application does not meet the criteria for stay of execution. He further averred that the Applicant have not shown how they will be prejudiced if the stay orders are not granted. He averred that advised by their advocates that the court having delivered its judgment, it became functus officio. He further averred that the 1st to 6th Applicants do not stand to suffer any harm since they do not own the suit properties.
The 1st Respondent averred that the Applicants failed to give any reason as to why they ought to continue holding the suit titles which the court found to have been illegally obtained. He also averred that as advised by their advocate, the filing of the present application promptly does not qualify for grant of the stay orders. He averred that the Applicants have not filed an appeal neither have the Respondents commenced execution proceedings and added that the application has since been rushed. He averred that the Applicants have not offered any security for costs.
The Applicants also filed a Further Affidavit sworn on 11th November, 2024 where they reiterated the contents of the supporting affidavit. He added that the notice of appeal is still in force since no contrary orders have been granted. He also added that the decree is not a money decree thus the requirement to provide security for costs does not apply.
Submissions
Counsel for the Applicant filed his submissions dated 11th November, 2024 where he submits that judgment was delivered on 16th October, 2024 after which they filed and served the Notice of Appeal on 23rd October, 2024. He further submits that the present application was presented before court five days after filing of the Notice of Appeal and twelve days after judgment. He submits that the Applicants have therefore approached the court with speed.
He submits that the judgment ordered the immediate cancellation of the title deeds for the suit property and the same be re-issued in the names of the 17 Defendants in Nakuru HCCC No. 89 of 1996. He submits that the Applicants who are the registered proprietors of the present titles shall suffer substantial loss. He submits that it is only fair and just that the status quo and the judgment be preserved as the Applicants pursue their appeal. Counsel further submits that the 1st Respondent shall suffer no prejudice since where he lives shall not be interfered with pending hearing and determination of the appeal. Counsel cited the case of NAKURU H.C ELC NO. E001 OF 2021 DUNCAN GITHAIGA MUCHIRI & 4 OTHERS V CHARLES NJUGUNA MUGANE
On security for costs, he submits that the Applicants are ready to deposit the original title deeds for the suit properties to the court’s custody as security as they pursue the appeal.
Counsel for the 1st Respondent filed his submissions dated 18th November, 2024 where he identified one issue for determination, whether the Applicants’ application for stay is merited. He relied on Order 42 Rule 6 (2) of the Civil Procedure Rules that provides for the conditions to be meet for grant of stay of execution pending appeal. On the first condition, he submits that Applicants have not placed anything before the court to demonstrate that they will suffer any substantial loss if the orders they are seeking are not granted. He further submits that the suit parcels of land do not belong to the 1st to 6th Applicants’ as the said proprietary rights were fraudulently obtained thus they have not demonstrated any loss. He submits that the Applicants admitted in their submissions that the Respondents could suffer a bit longer as they wait for the intended appeal to be heard and determined. He further submits that the same is an admission that the Respondents are suffering prejudice, which the court cannot extend the said suffering for the interests of the Applicants.
The second condition on security for costs he submits that the Applicants have not offered any security as required by law. He further submits that they have purported to offer the title deeds for the suit properties which are not their personal land but community parcels of land. He also submits that the titles they intend to deposit as security have been found to have been obtained fraudulently. It was counsel’s submission that the court having delivered its judgment, it became functus officio and granting stay will be like rewriting its judgment to allow the Applicants to continue holding the fraudulently obtained title.
He submits that the Respondents have not commenced any execution of the decree and the costs awarded have not been assessed yet thus there is no risk of execution. He submits that the Applicants have not met the criteria laid by law for the stay of judgment and urged the court to dismiss the application with costs. He also submits that in the event the court is inclined to grant the sought stay, he urged the court to order the Applicants be ordered to deposit the costs to be assessed so as to balance the interests of the parties herein.
Analysis and determination
The Court has considered the application and the main issue for determination is whether orders of stay of execution pending appeal should issue.
Order 42 Rule 6 (1)(2) of the Civil Procedure Rules provides as follows;
“(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 may ultimately be binding on him has been given by the applicant.
In RWW V EKW [2019] eKLR the court held as follows:
“...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.”
For this court to grant an order of stay of execution, the Applicants must demonstrate that they filed the application under consideration without unreasonable delay, that they will suffer substantial loss if the orders sought are not granted and that they are willing to deposit security for costs. It is also noteworthy that the court should endeavor to balance the interests of both the successful party in litigation so as not to unnecessarily bar them from enjoying the fruits of judgment and that of the Appellant whose appeal may succeed and be rendered nugatory if stay of execution is not granted.
On the issue of delay, a perusal of the court record shows that judgement in the matter was delivered on 16th October, 2024 and the Applicants filed a Notice of Appeal filed on 23rd October, 2024. It is this court’s view that the same was within the statutory time provided to file an appeal. It is noteworthy that judgment was delivered on 16th October, 2024 and the Application filed on 28th October, 2024 translating to a period of about 11 days. This court is of the view that that the period does not amount to inordinate delay.
The Applicants have to also demonstrate that unless the court grants stay of execution orders pending appeal, they stand to suffer substantial loss. The Applicants argued that Respondents were keen to execute the terms of the judgment. It is this court’s view that since execution is yet to commence, the Applicants failed to demonstrate the substantial loss they would suffer if stay is not granted. Moreover, the applicants have not shown the substantial loss that they are likely to suffer since they are not in possession and have not developed the same.
On the issue of security of costs, although the Applicants have expressed their willingness to offer security of costs, this court can exercise its discretion regarding the security for costs to be offered by them.
This court is of the view that grant of stay remains a discretionary order that must consider the fact that the court ought not to make a practice of denying a successful litigant the fruits of their judgment.
In the upshot, this court finds no merit in the application and the same is dismissed with costs. It is so ordered.