BRIEF FACTS
The Applicants filed the instant application dated 10th June, 2024 seeking the following orders:
1. Spent.
2. Spent.
3. THAT pending the hearing and determination of the intended appeal, this honourable court be pleased to stay the execution of the judgment of 22nd September, 2023 and decree arising therefrom and/or issue preservatory orders maintain the status quo in respect of the land parcel KIAMBOGO/KIAMBOGO BLOCK 2/405 subdivided into land parcel KIAMBOG/KIAMBOGO BLOCK.
4. THAT cost of this application be provided for.
The Application was based on grounds set out and supported by the Affidavit of ANN WANJIKU NGETHE the 1st Defendant/Applicant herein sworn on 10th June, 2024.
It was stated that the Plaintiff/Respondent instituted this suit against the Applicants claiming interest in respect of KIAMBOGO/KIAMBOGO BLOCK 2/405. That judgment was delivered on 22nd September, 2023 in favour of the Respondent. She stated that the court found that the Respondent had acquired the suit parcel by way of adverse possession and ordered that the titles registered in the Applicants’ names be cancelled.
That the Applicants filed an appeal that raised weighty grounds with high probability of success. She stated that it would be in the interest of justice that execution of the judgment be stayed. She added that execution of the judgment will create a state of affairs that will irreparably affect the very core in the event the appeal succeeds.
It was further stated that the Applicants will abide by any conditions issued by the court in an effort to preserve the subject matter.
Response
The Plaintiff/Respondent filed his Replying Affidavit through his counsel one Githui John sworn on 21st June, 2024. He averred that the application was an abuse of the court process and unmerited. He further averred that the Applicants filed a Notice of Appeal on 11th October, 2023 for a judgment delivered on 22nd September, 2023 thus out of time.
It was his contention that the Applicants filed an application for extension of time to file Notice of Appeal where the court on 24th November, 2024 allowed the same. That 7 months later, the Applicants failed to file the Notice of Appeal. He averred that the Applicants ought to have filed a Record of Appeal within 60 days from the date of the Notice of Appeal. It was his contention that the Applicants failed to demonstrate the requirements for grant of stay of execution pending appeal.
In conclusion he urged the court to dismiss the application with costs.
Submissions
The Applicants filed their submissions dated 30th September, 2024 and identified one issue for determination, whether the Applicants application for stay of execution of the judgment/decree should be granted. They relied on the case of RWW V EKW [2019] eKLR and submitted that to dismiss the application would occasion great injustice to the Applicants. They argued that they may loose their interest in the suit property despite being the registered proprietors. They also cited the case of MFI Document Solutions Ltd V Paretto Printing Works Limited [2021] eKLR where the court cited with approval the case of Butt V Rent Restriction Tribunal [1982] eKLR 417 that outlined the considerations the court applies to grant stay of execution orders.
They cited Order 42 Rule 6(2) of the Civil Procedure Rules and the case of Kenya Shell Limited V Kibiru [1986] KLR 410. It was their submission that the Respondent was adjudged to have adversely possessed the suit property and thus execution was already in the progress. It was further their submission that should the Respondent be allowed to complete the execution process, the subject matter of the suit would lapse. They added that the Applicants would also suffer irreparable loss. They also submitted that the issue of security did not suffice in the present case since the Respondent is already in possession of the suit property. They urged the court to allow the application as prayed.
Analysis and Determination
This court has considered the application and is of the view that the main issue for determination is whether the Applicant is deserving of the stay orders sought for.
This court is alive to the fact that the principles governing the grant of an order for stay of execution pending appeal are now settled. The relevant law is provided for under Order 42 Rule 6 1(2) of the Civil Procedure Rules which states 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.”
Before delving into whether the above conditions for stay were fulfilled, it is important to first establish the facts of the case as it is. This court has perused the court record and it is a fact that vide an application dated 25th October, 2023, the Applicants moved this court seeking extension of time to file appeal out of time. It is not in dispute that on 24th November, 2023, this court delivered its ruling granting the Applicants time to file their appeal.
I have further perused the court record and note that the Applicants filed a Notice of Appeal dated 11th October, 2023 on 23rd October, 2023. It is not in dispute that the said Notice of Appeal was filed before the court’s ruling on 24th November, 2023 granting the Applicants leave to file appeal out of time. It is this court’s view that the said Notice of Appeal remains null and void since at the time of filing the same, leave had not been granted to the Applicants to file appeal out of time. I have also keenly perused the court records and there is no record of any other Notice of Appeal filed by the Applicants after being granted leave to file appeal out of time.
In view of the foregoing, this court shall not go into the requirements for stay of execution pending appeal since there is no appeal on record for the court to even consider the prayers as sought in the application.
The upshot is that the application is dismissed with costs to the Respondent. It is so ordered.
The Applicants filed the instant application dated 10th June, 2024 seeking the following orders:
1. Spent.
2. Spent.
3. THAT pending the hearing and determination of the intended appeal, this honourable court be pleased to stay the execution of the judgment of 22nd September, 2023 and decree arising therefrom and/or issue preservatory orders maintain the status quo in respect of the land parcel KIAMBOGO/KIAMBOGO BLOCK 2/405 subdivided into land parcel KIAMBOG/KIAMBOGO BLOCK.
4. THAT cost of this application be provided for.
The Application was based on grounds set out and supported by the Affidavit of ANN WANJIKU NGETHE the 1st Defendant/Applicant herein sworn on 10th June, 2024.
It was stated that the Plaintiff/Respondent instituted this suit against the Applicants claiming interest in respect of KIAMBOGO/KIAMBOGO BLOCK 2/405. That judgment was delivered on 22nd September, 2023 in favour of the Respondent. She stated that the court found that the Respondent had acquired the suit parcel by way of adverse possession and ordered that the titles registered in the Applicants’ names be cancelled.
That the Applicants filed an appeal that raised weighty grounds with high probability of success. She stated that it would be in the interest of justice that execution of the judgment be stayed. She added that execution of the judgment will create a state of affairs that will irreparably affect the very core in the event the appeal succeeds.
It was further stated that the Applicants will abide by any conditions issued by the court in an effort to preserve the subject matter.
Response
The Plaintiff/Respondent filed his Replying Affidavit through his counsel one Githui John sworn on 21st June, 2024. He averred that the application was an abuse of the court process and unmerited. He further averred that the Applicants filed a Notice of Appeal on 11th October, 2023 for a judgment delivered on 22nd September, 2023 thus out of time.
It was his contention that the Applicants filed an application for extension of time to file Notice of Appeal where the court on 24th November, 2024 allowed the same. That 7 months later, the Applicants failed to file the Notice of Appeal. He averred that the Applicants ought to have filed a Record of Appeal within 60 days from the date of the Notice of Appeal. It was his contention that the Applicants failed to demonstrate the requirements for grant of stay of execution pending appeal.
In conclusion he urged the court to dismiss the application with costs.
Submissions
The Applicants filed their submissions dated 30th September, 2024 and identified one issue for determination, whether the Applicants application for stay of execution of the judgment/decree should be granted. They relied on the case of RWW V EKW [2019] eKLR and submitted that to dismiss the application would occasion great injustice to the Applicants. They argued that they may loose their interest in the suit property despite being the registered proprietors. They also cited the case of MFI Document Solutions Ltd V Paretto Printing Works Limited [2021] eKLR where the court cited with approval the case of Butt V Rent Restriction Tribunal [1982] eKLR 417 that outlined the considerations the court applies to grant stay of execution orders.
They cited Order 42 Rule 6(2) of the Civil Procedure Rules and the case of Kenya Shell Limited V Kibiru [1986] KLR 410. It was their submission that the Respondent was adjudged to have adversely possessed the suit property and thus execution was already in the progress. It was further their submission that should the Respondent be allowed to complete the execution process, the subject matter of the suit would lapse. They added that the Applicants would also suffer irreparable loss. They also submitted that the issue of security did not suffice in the present case since the Respondent is already in possession of the suit property. They urged the court to allow the application as prayed.
Analysis and Determination
This court has considered the application and is of the view that the main issue for determination is whether the Applicant is deserving of the stay orders sought for.
This court is alive to the fact that the principles governing the grant of an order for stay of execution pending appeal are now settled. The relevant law is provided for under Order 42 Rule 6 1(2) of the Civil Procedure Rules which states 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.”
Before delving into whether the above conditions for stay were fulfilled, it is important to first establish the facts of the case as it is. This court has perused the court record and it is a fact that vide an application dated 25th October, 2023, the Applicants moved this court seeking extension of time to file appeal out of time. It is not in dispute that on 24th November, 2023, this court delivered its ruling granting the Applicants time to file their appeal.
I have further perused the court record and note that the Applicants filed a Notice of Appeal dated 11th October, 2023 on 23rd October, 2023. It is not in dispute that the said Notice of Appeal was filed before the court’s ruling on 24th November, 2023 granting the Applicants leave to file appeal out of time. It is this court’s view that the said Notice of Appeal remains null and void since at the time of filing the same, leave had not been granted to the Applicants to file appeal out of time. I have also keenly perused the court records and there is no record of any other Notice of Appeal filed by the Applicants after being granted leave to file appeal out of time.
In view of the foregoing, this court shall not go into the requirements for stay of execution pending appeal since there is no appeal on record for the court to even consider the prayers as sought in the application.
The upshot is that the application is dismissed with costs to the Respondent. It is so ordered.