Rosemary Khamete Mwanje (hereinafter referred to as the appellant) has come to this court seeking orders that pending the hearing and determination of the appeal, this Honourable Court be pleased to Order Stay of Execution of the Judgment and decree of the Trial Court in Mombasa MELC NO. 78 OF 2018 dated 07th July, 2023 and all consequential Orders thereto. That the costs of this Application be provided for. The application is based on the Supporting Affidavit of the Appellant and the grounds listed thereunder. The main grounds are that on 07th May, 2026, this Honourable Court delivered Judgment in favour of the 1st Respondent on an Appeal from the Judgment of the Lower Court. The Appellant/Applicant has lodged an Appeal to the Court of Appeal against the Judgment and decision of this Honourable Court. That in its Judgment, the Lower Court ordered on 07th July, 2023 that the Applicant to demolish the buildings and structures standing on the suit property within 45 days which days have since expired.
The developments on the Suit Property are of substantial value in the nature of a school with over 300 children and such move as to demolish will not only adversely affect the Applicant but also the education and learning of the pupils as well. The Intended Appeal raises weighty issues with overwhelming chances of success. That the Order of Stay will not affect the 1st Respondent as in his own admission he has never been in possession of the Suit Property since the purported sale in the year 2012. The Sale Agreement upon which the 1st Respondent claims ownership, granting of vacant possession was between the Vendor and not the 1st Respondent.
The Applicant will suffer substantial loss unless stay Orders are issued in respect to the Trial Court's Decree of 07th July, 2023 and the Intended Appeal to the Court of Appeal will be rendered nugatory. The Applicant is ready to abide by any conditions that this Honourable Court may deem just. That it is in the interest of justice that the Application be allowed.
In the supporting affidavit, the appellant states she is the Administratrix of the Estate of John Matisi, deceased. That on 07th July, 2023, the Chief Magistrate's Court in Mombasa ELC NO.78 OF 2018, Charles Opulu =V= John Matisi & 2 Others, delivered Judgment in this matter in favour of the 1st Respondent that essentially entails eviction of the Applicant from the Suit Property within 45 days and payment of costs. Aggrieved by the said Judgment and decree, the Applicant appealed against the said Judgment to this Honourable Court. That on the 07th May, 2026, this Honourable Court delivered Judgment in favour of the 1st Respondent upholding the Judgment of the Lower Court. She has instructed her advocates on Record to Appeal against the said Judgment to the Court of Appeal. It is on record that the Estate John Matisi, deceased, purchased the suit property sometimes in the year 2009 and is in possession to-date whereas the 1st Respondent claims to have also purchased the same in the year 2012/2013 and thus the decedent's estate is first in time in terms of ownership.
The Applicant has at all material times since the year 2009 been in possession and occupation of the Suit Property and runs a school with permanent facilities and amenities that is in operation by the name Shanzu Josma Junior School with present capacity of over 300 pupils. Sometimes on 24th March 2018 a portion of the development in form of classrooms, washrooms and other amenities was unlawfully invaded and demolished occasioning the Applicant substantial loss and damage. Upon inquiry, the 1st Respondent herein admitted and indeed pleaded as being responsible for the said destruction. On the night of 21st May, 2026 there was another illegal attempt to demolish the Applicant's structures but the Police intervened and the culprits managed to escape. In his evidence and Pleadings the 1st Respondent admitted not to have had any Court Order in his quest to obtain vacant possession for what he believed to have been part of his property pursuant to a purported sale sometimes in the year 2012
The 1st Respondent instituted Proceedings for vacant possession even when there was no privity of contract.
The Intended Appeal to the Court of Appeal has overwhelming chances of success and therefore unless the Orders sought are granted the Applicant will suffer loss and damage which loss may extend to third parties in form of pupils whose learning will be adversely affected. The granting of the Orders of Stay sought will not prejudice the 1st Respondent as in his admission he has never occupied the Suit Property since the purported sale in the year 2012. The applicant is ready to abide by any condition that this Honourable Court may deem.
In his replying affidavit, Charles A. Opulu an advocate States that the Applicant's appeal against the Judgment of the Magistrate's court delivered in Mombasa MCELC NO. 78 OF 2018 dated 7th July, 2023 was heard and dismissed in its entirety by this Honorable court on 7th May, 2026.
The present application is fatally defective, incompetent, and bad in law, as this Honourable Court lacks jurisdiction to entertain an application seeking to stay proceedings and/or judgment in Mombasa MCELC No. 78 of 2023. The appeal arising therefrom was already heard and determined by this Court, and there is presently no subsisting or active appeal upon which such an order for stay can be anchored. That this Honourable Court lacks jurisdiction to grant an order of stay in respect of a decision of a subordinate court where the appeal against such decision has already been dismissed. Upon dismissal of the appeal, this Court became functus officio in respect of the merits of the lower court's judgment, and cannot purport to indirectly stay or suspend the same.
The respondent contends that in any event, the judgment delivered by this Honourable Court dismissing the appeal constitutes a negative order, which is incapable of execution and therefore not amenable to an order of stay. The only consequential effect of such dismissal is to leave the lower court's judgment intact, and there is nothing arising from this Court's judgment that can be stayed.
The present application is an attempt to delay and obstruct me from enjoying the fruits of my Judgment.
The issues raised have already been fully concluded and determined by both trial court and this honorable court. The intended Appeal is frivolous and an abuse of the court process.
This court has considered the application and the reply and does find that it has no power to stay execution of the decree of the lower court at this stage because the decree of the lower court was subject to the appeal in this court which was dismissed and therefore the court is functus officio. Moreover, the decision of this court amounted to a dismissal of the appeal from the decree of the lower court, being a negative order, it cannot be logically stayed.
ORDER 42 RULE 6 OF THE Civil Procedure Rules 2010 provides that:-
(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 subrule (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.
The import of the above is that the only power this has is to stay execution of the decree appealed from and not the decree of the lower court. The decree appealed from is the decree of this court which is negative. The application is dismissed with costs.