'This ruling is in respect of the 2nd Defendant/Applicant’s Notice of Motion application dated 18th May, 2025 which sought the following orders;
a. Spent.
b. Spent.
c. THAT the Honourable Court be pleased to order for stay of execution of the judgment/decree herein delivered and dated the 8th May, 2025 in all its interpretation and all the consequential orders thereto pending the hearing and determination of the intended appeal from the decree herein to the Court of Appeal.
d. THAT such orders be made as is just and expedient in the interest of justice.
e. THAT costs of this application be provided for.
The application was supported by the affidavit of WILLIAM NJOROGE KARANJA sworn on 19th May, 2025. He stated that on 8th May, 2025 the court delivered judgment in favour of the Plaintiff/Respondent. He further stated that in the said judgment especially the portion ordering permanent injunction has been interpreted by the Respondent to amount to eviction. He stated that the Respondent sent officers to his premises demanding that he vacates.
He stated that he appealed the said judgment and served the Notice of Appeal to the Respondent. He added that his advocates have also applied for certified copies of typed proceedings for purposes of preparing the record of appeal. He went on to state that the intended appeal raises arguable issues with chances of success. He stated that he was apprehensive that the Respondent in conjunction with the Kenya National Trading Corporation which has since misinterpreted the decree may move at any time and commence execution of the decree.
He stated that if the Respondent executes the decree, it would supplant his factory, demolish his premises and even scuttle his employees. He added that in the likely event the appeal succeeds, the same would be rendered nugatory since the suit property together with the factory would have been demolished which ramifications cannot be compensated by costs.
He stated that no prejudice will be suffered by the Respondent which cannot be compensated by way of costs or damages if the application was allowed. He further stated that he was ready and willing to provide such security as the court orders for the due performance of such decree.
In conclusion, he stated that there was no delay in filing the instant application.
Response
Respondent filed its Replying Affidavit sworn by one MILDRED AMOJONG on 5th June, 2025. She averred that the judgment was comprehensive which declared that the suit property Nakuru/Municipality Block 6/158 and its subdivisions were illegal. She further averred that the court’s findings were anchored on uncontroverted evidence. She averred that the Corporation was a well-funded public entity with substantial annual budget allocation thus capable of compensating the Applicant damages in the unlikely event the appeal succeeds. She also averred that the Applicant failed to provide any security for due performance of such decree as may be binding upon him when the intended appeal fails. She further averred that the judgment was delivered after full trial with all parties accorded an opportunity to be heard thus the application was an abuse of the court process. She urged the court to dismiss the application with costs.
Submissions
Counsel for the Applicant filed his submissions dated 26th June, 2025 where he identified one issue for determination, whether the application is merited. He relied on Order 42 Rule 6(2) of the Civil Procedure Rules on what the court needs to consider in granting an order for stay of execution. He also cited the case of Tabro Transporters Ltd V Absalom Dova Lumbasi [2012] eKLR cited with approval in Catridge and Print Services (K) Limited V Techno Service Limtied (Civil Appeal E037 of 2021) [2021] KEHC 295 (KLR). On the first condition, he submits that the application has been made without unreasonable dely. He submits that judgment was delivered on 8th May, 2025 whereas the application for stay lodged on 18th May, 2025, hardly 10 days after delivery of the judgment.
On the second condition of substantial loss, it was counsel’s submission that the Applicant stood to suffer irreparably if the stay orders are not granted. He submits that the Applicant has been in occupation of the suit parcel for over 20 years and has built a manufacturing plant with employees relying on it as their source of income. He further submits that the Kenya National Trading Corporation threats to take over the factory would render many employees jobless. He added that the Applicant will also end up loosing his massive investment. He submits that the uniqueness of the plant constituted special circumstances to warrant stay of execution. He also submits that the Respondent does not stand to suffer irreparably if the application is allowed since it is not in possession of the suit parcel as compared to the Applicant. He relied on a number of cases including Nyatera V Nyakundi (Civil Appeal E033 of 2022) [2023] KEHC 3086 (KLR) and James Wangalwa & Another V Agnes Naliaka Cheseto [2012] eKLR. It was his submission that the appeal will be rendered nugatory if stay is not ordered. He relied on the case of Butt V Rent Restriction Tribunal (1979) eKLR.
The third condition of security, he submits that the Applicant has demonstrated that he was willing to meet all the conditions the court may deem fit to order.
Counsel for the Respondent on the other hand filed her submissions dated 15th July, 2025 where she cited the Court of Appeal case in Carter & Sons Ltd V Deposit Protection Fund Board & 2 Others Civil Appeal No. 291 of 1997. She submits that the intended appeal lacked merit as it was fundamentally flawed. She went on to submit that the appeal appeared to be nothing more than a mere rehashing of arguments already considered and rejected by the court. She further submits that the appeal constituted an abuse of the court process designed to delay the inevitable restoration of public land to its rightful owner. She relied on the case of Kenya Anti-Corruption Commission V Mwalimu National Sacco Society Ltd & Others [2013 eKLR. She also submits that the Applicant having failed to convince the court of his entitlement to the suit parcel during the substantive hearing of the case, he now sought to use procedural mechanisms to perpetuate unlawful occupation of public property.
She relied on the case of Attorney General V David Njoroge Macharia [2011] eKLR and submits that the appeal will not be rendered nugatory. She further submits that the Applicant bore the burden of proving the Respondent’s inability to provide adequate restitution which burden has not been discharged. It was her submissions that public interest opposed the grant of stay as granting the orders would reward land grabbing. She cited Article 79 of the Constitution and the case in Ethics and Anti-Corruption Commission V Hillview Investment Limited & Others [2019] eKLR.
Counsel submits that the Applicant approached the court with unclean hands as he has been in occupation of public land without lawful title. She added that having benefited from the unlawful transactions, he cannot now seek equity’s assistance to perpetuate his unlawful occupation. She relied on the case of Issa Shivji V Standard Bank [1997] 1EA 505. She also submits that the balance of convenience favoured the Respondent as well as public interest. She submits that the application was filed 10 days after judgment thus confirming that it was not as urgent as the Applicant portrayed. She urged the court to dismiss the application with costs.
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 Applicant must demonstrate that he filed the application under consideration without unreasonable delay, that he will suffer substantial loss if the orders sought are not granted and that he was 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 8th May, 2025 and the Applicant filed his Notice of Appeal filed on 9th May, 2025. The Applicant also filed the present application on 20th May, 2025 about 12 days after delivery of judgment. It is this court’s view that the same was filed timeously and that there was no delay.
The Applicant has to also demonstrate that unless the court grants stay of execution orders pending appeal, he stood to suffer substantial loss. The Applicant argues that Respondent was keen to execute the terms of the judgment by ensuring that he was evicted from the suit parcel in accordance with the orders.
Notably, the Respondent vide her replying affidavit contends that the suit parcel being public property, public interest overrode the request for stay of execution. She further contends that the Applicant being allowed to remain in occupation the suit land does not amount to substantial loss as the same could be compensated by costs. It is not in dispute that the Applicant is in possession of the suit parcel having constructed a plant factory. It is my opinion that the substratum of the suit being land must be sustained. It is this court’s view that ownership and possession will be at the core of the appeal and thus, the same ought to be preserved pending determination of the appeal. It is therefore this court’s view that the same would be sufficient ground to demonstrate the substantial loss the Applicant may suffer if stay is not granted.
In the case of Absalom Dora V Turbo Transporters (2013) (eKLR) the court held that:
“The discretionary relief of stay of execution pending Appeal is designed on the basis that no one would be worse off by virtue of an order of the Court; as such order does not introduce any disadvantage, but administers the justice that the case deserves. This is in recognition that both parties have rights; the Appellant to his Appeal which includes the prospects that the Appeal will not be rendered nugatory; and the decree holder to the decree which includes full benefits under the decree. The Court in balancing the two competing rights focuses on their reconciliation which is not a question of discrimination.”
On the issue of security of costs, the Applicant has expressed his willingness to offer security of costs and this court shall exercise its discretion regarding the security of costs to be offered by them.
In the case of Siegfried Busch V MCSK [2013] eKLR, the court held as follows:
“A superior court to which an application has been made must recognize and acknowledge the possibility that its decision for refusal to grant a stay of execution could be reversed on appeal. It would be best in those circumstances to preserve the status quo so as not to render an appeal nugatory. Even in doing so, the court should weigh this against the success of a litigant who should not be deprived of the fruits of his judgment...”
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 shall exercise its discretion and order of stay of execution of this court’s judgement delivered on 8th May, 2025 on the following conditions;
a. The Applicant to deposit a sum of Kshs. 1,000,000/= as security for costs in a fixed joint interest earning account in the names of both counsel for the parties within 21 days from the date of this ruling.
b. The Applicant shall compile, file and serve a record of appeal within 60 days and move the Court appropriately towards the finalization of this Appeal within 180 days from the date of this ruling.
In the event the Applicant fail to abide by any of the above stated two conditions within the fixed time lines there will be an automatic lapse of the stay of execution herein irrespective of whether or not one condition shall have been met earlier than the failure of the latter.
Orders accordingly.
'
a. Spent.
b. Spent.
c. THAT the Honourable Court be pleased to order for stay of execution of the judgment/decree herein delivered and dated the 8th May, 2025 in all its interpretation and all the consequential orders thereto pending the hearing and determination of the intended appeal from the decree herein to the Court of Appeal.
d. THAT such orders be made as is just and expedient in the interest of justice.
e. THAT costs of this application be provided for.
The application was supported by the affidavit of WILLIAM NJOROGE KARANJA sworn on 19th May, 2025. He stated that on 8th May, 2025 the court delivered judgment in favour of the Plaintiff/Respondent. He further stated that in the said judgment especially the portion ordering permanent injunction has been interpreted by the Respondent to amount to eviction. He stated that the Respondent sent officers to his premises demanding that he vacates.
He stated that he appealed the said judgment and served the Notice of Appeal to the Respondent. He added that his advocates have also applied for certified copies of typed proceedings for purposes of preparing the record of appeal. He went on to state that the intended appeal raises arguable issues with chances of success. He stated that he was apprehensive that the Respondent in conjunction with the Kenya National Trading Corporation which has since misinterpreted the decree may move at any time and commence execution of the decree.
He stated that if the Respondent executes the decree, it would supplant his factory, demolish his premises and even scuttle his employees. He added that in the likely event the appeal succeeds, the same would be rendered nugatory since the suit property together with the factory would have been demolished which ramifications cannot be compensated by costs.
He stated that no prejudice will be suffered by the Respondent which cannot be compensated by way of costs or damages if the application was allowed. He further stated that he was ready and willing to provide such security as the court orders for the due performance of such decree.
In conclusion, he stated that there was no delay in filing the instant application.
Response
Respondent filed its Replying Affidavit sworn by one MILDRED AMOJONG on 5th June, 2025. She averred that the judgment was comprehensive which declared that the suit property Nakuru/Municipality Block 6/158 and its subdivisions were illegal. She further averred that the court’s findings were anchored on uncontroverted evidence. She averred that the Corporation was a well-funded public entity with substantial annual budget allocation thus capable of compensating the Applicant damages in the unlikely event the appeal succeeds. She also averred that the Applicant failed to provide any security for due performance of such decree as may be binding upon him when the intended appeal fails. She further averred that the judgment was delivered after full trial with all parties accorded an opportunity to be heard thus the application was an abuse of the court process. She urged the court to dismiss the application with costs.
Submissions
Counsel for the Applicant filed his submissions dated 26th June, 2025 where he identified one issue for determination, whether the application is merited. He relied on Order 42 Rule 6(2) of the Civil Procedure Rules on what the court needs to consider in granting an order for stay of execution. He also cited the case of Tabro Transporters Ltd V Absalom Dova Lumbasi [2012] eKLR cited with approval in Catridge and Print Services (K) Limited V Techno Service Limtied (Civil Appeal E037 of 2021) [2021] KEHC 295 (KLR). On the first condition, he submits that the application has been made without unreasonable dely. He submits that judgment was delivered on 8th May, 2025 whereas the application for stay lodged on 18th May, 2025, hardly 10 days after delivery of the judgment.
On the second condition of substantial loss, it was counsel’s submission that the Applicant stood to suffer irreparably if the stay orders are not granted. He submits that the Applicant has been in occupation of the suit parcel for over 20 years and has built a manufacturing plant with employees relying on it as their source of income. He further submits that the Kenya National Trading Corporation threats to take over the factory would render many employees jobless. He added that the Applicant will also end up loosing his massive investment. He submits that the uniqueness of the plant constituted special circumstances to warrant stay of execution. He also submits that the Respondent does not stand to suffer irreparably if the application is allowed since it is not in possession of the suit parcel as compared to the Applicant. He relied on a number of cases including Nyatera V Nyakundi (Civil Appeal E033 of 2022) [2023] KEHC 3086 (KLR) and James Wangalwa & Another V Agnes Naliaka Cheseto [2012] eKLR. It was his submission that the appeal will be rendered nugatory if stay is not ordered. He relied on the case of Butt V Rent Restriction Tribunal (1979) eKLR.
The third condition of security, he submits that the Applicant has demonstrated that he was willing to meet all the conditions the court may deem fit to order.
Counsel for the Respondent on the other hand filed her submissions dated 15th July, 2025 where she cited the Court of Appeal case in Carter & Sons Ltd V Deposit Protection Fund Board & 2 Others Civil Appeal No. 291 of 1997. She submits that the intended appeal lacked merit as it was fundamentally flawed. She went on to submit that the appeal appeared to be nothing more than a mere rehashing of arguments already considered and rejected by the court. She further submits that the appeal constituted an abuse of the court process designed to delay the inevitable restoration of public land to its rightful owner. She relied on the case of Kenya Anti-Corruption Commission V Mwalimu National Sacco Society Ltd & Others [2013 eKLR. She also submits that the Applicant having failed to convince the court of his entitlement to the suit parcel during the substantive hearing of the case, he now sought to use procedural mechanisms to perpetuate unlawful occupation of public property.
She relied on the case of Attorney General V David Njoroge Macharia [2011] eKLR and submits that the appeal will not be rendered nugatory. She further submits that the Applicant bore the burden of proving the Respondent’s inability to provide adequate restitution which burden has not been discharged. It was her submissions that public interest opposed the grant of stay as granting the orders would reward land grabbing. She cited Article 79 of the Constitution and the case in Ethics and Anti-Corruption Commission V Hillview Investment Limited & Others [2019] eKLR.
Counsel submits that the Applicant approached the court with unclean hands as he has been in occupation of public land without lawful title. She added that having benefited from the unlawful transactions, he cannot now seek equity’s assistance to perpetuate his unlawful occupation. She relied on the case of Issa Shivji V Standard Bank [1997] 1EA 505. She also submits that the balance of convenience favoured the Respondent as well as public interest. She submits that the application was filed 10 days after judgment thus confirming that it was not as urgent as the Applicant portrayed. She urged the court to dismiss the application with costs.
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 Applicant must demonstrate that he filed the application under consideration without unreasonable delay, that he will suffer substantial loss if the orders sought are not granted and that he was 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 8th May, 2025 and the Applicant filed his Notice of Appeal filed on 9th May, 2025. The Applicant also filed the present application on 20th May, 2025 about 12 days after delivery of judgment. It is this court’s view that the same was filed timeously and that there was no delay.
The Applicant has to also demonstrate that unless the court grants stay of execution orders pending appeal, he stood to suffer substantial loss. The Applicant argues that Respondent was keen to execute the terms of the judgment by ensuring that he was evicted from the suit parcel in accordance with the orders.
Notably, the Respondent vide her replying affidavit contends that the suit parcel being public property, public interest overrode the request for stay of execution. She further contends that the Applicant being allowed to remain in occupation the suit land does not amount to substantial loss as the same could be compensated by costs. It is not in dispute that the Applicant is in possession of the suit parcel having constructed a plant factory. It is my opinion that the substratum of the suit being land must be sustained. It is this court’s view that ownership and possession will be at the core of the appeal and thus, the same ought to be preserved pending determination of the appeal. It is therefore this court’s view that the same would be sufficient ground to demonstrate the substantial loss the Applicant may suffer if stay is not granted.
In the case of Absalom Dora V Turbo Transporters (2013) (eKLR) the court held that:
“The discretionary relief of stay of execution pending Appeal is designed on the basis that no one would be worse off by virtue of an order of the Court; as such order does not introduce any disadvantage, but administers the justice that the case deserves. This is in recognition that both parties have rights; the Appellant to his Appeal which includes the prospects that the Appeal will not be rendered nugatory; and the decree holder to the decree which includes full benefits under the decree. The Court in balancing the two competing rights focuses on their reconciliation which is not a question of discrimination.”
On the issue of security of costs, the Applicant has expressed his willingness to offer security of costs and this court shall exercise its discretion regarding the security of costs to be offered by them.
In the case of Siegfried Busch V MCSK [2013] eKLR, the court held as follows:
“A superior court to which an application has been made must recognize and acknowledge the possibility that its decision for refusal to grant a stay of execution could be reversed on appeal. It would be best in those circumstances to preserve the status quo so as not to render an appeal nugatory. Even in doing so, the court should weigh this against the success of a litigant who should not be deprived of the fruits of his judgment...”
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 shall exercise its discretion and order of stay of execution of this court’s judgement delivered on 8th May, 2025 on the following conditions;
a. The Applicant to deposit a sum of Kshs. 1,000,000/= as security for costs in a fixed joint interest earning account in the names of both counsel for the parties within 21 days from the date of this ruling.
b. The Applicant shall compile, file and serve a record of appeal within 60 days and move the Court appropriately towards the finalization of this Appeal within 180 days from the date of this ruling.
In the event the Applicant fail to abide by any of the above stated two conditions within the fixed time lines there will be an automatic lapse of the stay of execution herein irrespective of whether or not one condition shall have been met earlier than the failure of the latter.
Orders accordingly.
'