MARTIN MUNANU WANJIRU WACIRA VS SAMUEL KARENJU WACIRA AND STANLEY THIONGO WACIRA AND 4 Others

1. The Applicants/Appellants have filed the Notice of Motion dated 18th November 2024 seeking the following orders:
1. Spent
2. Spent.
3. THAT the Honourable Court be pleased to grant an order of stay of execution of the Judgment delivered by this Honourable Court on 19th June 2024 pending the hearing and determination of the appeal.
4. THAT costs be provided for.
2. The application is supported by the affidavit of the 1st Applicant on his behalf and on behalf of the 2nd Applicant, his mother. The grounds in support of the application are that the Judgment before the trial court was delivered on 19th June 2024. Being dissatisfied with the judgment, the Applicants filed this appeal through the Memorandum of Appeal dated 9th July 2024.
3. The Applicants stated that since 2020, the Plaintiffs have been utilising the suit parcels of land for cultivation, tea picking and subsistence farming.
4. Upon entry of the judgment of the trial Court, the Respondents are said to have invaded the suit lands and chased the Applicants away, upon which the Applicants filed a police report. They also applied for a stay of execution before the trial court, which was denied. They are now apprehensive that unless stay orders are granted, they will continue to suffer irreparable and substantial loss and damage, as the Respondents have taken away their livelihood.

The Respondents ' Replying Affidavit
5. The Respondents filed a replying affidavit sworn by the 1st Respondent on 16th December 2024, opposing the application. He deposed that the Applicants have failed to annexe a certified copy of the Decree from which they seek a stay of execution.
6. Further, the Respondents deposed that the Applicants have not satisfied the conditions they must meet for the issue of an order for stay of execution. They have not shown that a substantial loss may result from execution, or that the application has been made without unreasonable delay. They have also not provided such security as the Court orders for the due performance of such decree or order as may ultimately be binding on them.
7. The Respondents, therefore, depose that the application lacks merit and should be dismissed with costs.
Applicants’ Written Submissions
8. Counsel for the Applicants submitted that the application is based on the provisions of Order 42, Rule 6(2), and they have satisfied the requirements under the said order. It was submitted that the Applicants have suffered and continue to suffer great loss and damage due to the Respondents' invading the parcels of land and denying them their source of livelihood.
9. They relied on the holding in the case of RWW vs. EKW (2019) eKLR, where it was held that a stay of execution pending an appeal is to preserve the subject matter in dispute so that the rights of the appellant and the appeal are not rendered nugatory if successful.
10. Having already filed a similar application for stay before the Trial Court, which was denied, Counsel submitted that the Rules allow them to file the same in the Court appealed to and that the application has been made without unreasonable delay.
11. It was also submitted that the Applicants are willing to furnish the Court with security and urged the Court to allow it as prayed.
Respondents’ Written Submissions
12. Counsel for the Respondents submitted that the Appellants/Applicants must satisfy all three conditions stipulated under Order 42 rule 6(2) of the Civil Procedure Rules (2010) simultaneously, as was held in the authority of Electro Watts Limited v Alios Kenya Limited (2018) eKLR.
13. On substantial loss, Counsel submitted that the Applicants have merely alleged “substantial loss” without providing evidence to substantiate this claim and relied on the authorities in the cases of:
Adah Nyabok v Uganda Holding Properties Ltd (2012) eKLR
Daniel Chebutul Rotich & 2 Others v Emirates Airlines Civil Case No. 368 of 2001 and Bhutt v Rent Restriction Tribunal (1982) KLR 417
14. Regarding the issue of unreasonable delay, the Respondents submit that the judgment before the trial court was delivered on 19th June, 2024, and the Applicants lodged an appeal in July 2024. However, the present Application for stay was not filed until 18th November, 2024, which is a delay of four months. Counsel relied on the authority in Catherine Njeri Maranga v Serah Chege & Another (2017) eKLR.
15. On security for costs, Counsel submitted that it is a mandatory requirement under Order 42 Rule 6(2)(b) for an applicant to provide security for the due performance of the decree, as they cited the cases of Gianfranco Manenthi & Another v Africa Merchant Assurance Co Ltd (2019) eKLR and
Mwaura Karuga t/a Limit Enterprises v Kenya Bus Services Ltd & 4 Others [2015] eKLR.
16. Finally, it is the Respondents’ submission that the judgment delivered on 19th June, 2024, did not issue any positive order capable of execution. That a stay can only be granted where there is an enforceable order. They relied on the following cases: Western College of Arts and Applied Sciences v Oranga & Others (1976-80) 1 KLR, Titus Kiema v North Eastern Welfare Society [2016] eKLR, and AG v James Hoseah Gitau Mwara [2014] eKLR

Analysis and Determination
17. The issue for determination in this application is whether the Court should grant the Appellant/Applicant an order of stay of execution of the Judgment delivered by the trial court, Hon. Monica Munyendo on 19th June 2024 in Othaya PMCC MCELC E003 of 2022 finding that both claims by the Plaintiffs and Defendants partly succeeded with no order of costs.
18. The Application is made under Order 42 Rule 6 of the Civil Procedure Rules, which provides that:
“No appeal or second appeal shall operate as a stay of execution or proceedings under a decree or order appealed from except appeal case of 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 the application being made, to consider such application and to make such order thereon as may to it seems 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.”
19. The purpose of stay of execution orders is to preserve the subject matter of the appeal so as not to render the appeal nugatory. This was emphasized in the case of RWW vs. EKW¬ (2019) eKLR cited by Counsel for the Applicants, in which the Court held that 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.
20. Similarly, in the famous case of Butt vs. Rent Restriction Tribunal [1979] eKLR cited by Counsel for the Respondents, the Court of Appeal underscored the considerations for the grant or refusal of a stay of execution pending appeal.  The court said that the power of the court to grant or refuse an application for a stay of execution is discretionary, and the discretion should be exercised in such a way as not to prevent an appeal. Secondly, the general principle in granting or refusing a stay is that if there is no other overwhelming hindrance, a stay must be granted so that an appeal may not be rendered nugatory should the appeal court reverse the judge’s discretion. Thirdly, a judge should not refuse a stay if there are good grounds for granting it merely because, in his opinion, a better remedy may become available to the applicant at the end of the proceedings. Finally, the court in exercising its discretion whether to grant or refuse an application for stay, will consider the special circumstances of the case and its unique requirements.
21. Order 46 rule 6(2) provides the elements that the Court will consider in an application for stay of execution:
“(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.
(3) Notwithstanding anything contained in subrule (2), the court shall have power, without formal application made, to order upon such terms as it may deem fit a stay of execution pending the hearing of a formal application.”
22. As to what substantial loss is, Musinga, J (as he then was), the case of Daniel Chebutul Rotich & 2 Others v Emirates Airlines Civil Case No. 368 of 2001 cited with approval in the case of Kenya Power & Lighting Co. Ltd v Julius Ole Sunkuli & 3 Others[2013]eKLR in determining what amounts to substantial loss, held that:
“...substantial loss” is a relative term and more often than not can be assessed by the totality of the consequences which an applicant is likely to suffer if stay of execution is not granted and that applicant is therefore forced to pay the decretal sum.”
23. The Applicants contend that they stand to suffer loss since the Respondents have invaded the suit properties L.R. Chinga/Gathera/S.694, Chinga/Gathera/S.695 and Chinga/Gathera/S.696. The state that since 2020 they have been utilising the suit parcels of land for cultivation, tea picking and subsistence farming.
24. Upon entry of the judgment of the trial Court, the Respondents are said to have invaded the suit lands and chased the Applicants away, upon which the Applicants filed a police report. They also filed an application for stay of execution before the trial court, which was denied. They are now apprehensive that unless stay orders are granted, they will continue to suffer irreparable and substantial loss and damage, as the Respondents have taken away their livelihood.
25.  However, the court notes that the orders made by the trial court, execution of which the Applicant seeks to stay, did not involve possession of the suit parcels of land. The order complained of reads: “An order for rectification of the register for the parcels of land Chinga/Gathera/S.694, Chinga/Gathera/S.695 and Chinga/Gathera/S.696 by cancellation of the current registrations in favour of the Plaintiffs for the same to revert to the name of Wacira Wambugu (deceased) as part of his estate.”
26. In the court's view, such possession of the above-mentioned parcels of land as may have been taken by the Respondents was not done in execution of the decree. It is noted that the Applicants have not complained of possible rectification of the register, cancellation of their names and reversion of the title into the names of the deceased in accordance with the decree. The Applicants have not complained of any substantial loss they may suffer if such rectification and cancellation were carried out. In the court's view, any loss the Applicants may suffer out of being dispossessed of the suit parcels of land, if at all, was not occasioned by the execution of the court's decree.
27. The court is further of the view that even if the order for rectification of the register of the properties Chinga/Gathera/S. 694, Chinga/Gathera/S.695 and Chinga/Gathera/S.696 were to be executed as per the decree; the same would not amount to substantial loss to the Applicants since the trial court did not order that the titles remain in their names but ordered that the title reverts to the name of Wacira Wambugu (deceased) as part of his estate. As part of the deceased's estate, the title would have to go through succession proceedings for the title to be transferred to a third party.
28. For the above reason, the court finds that the applicants have not met the requirement to show the substantial loss they will suffer if the decree is executed.
29. As to whether the application was made without unreasonable delay, the Court notes that the Judgment was delivered on 19th June 2024, while the instant application is dated 18th November 2024, with five months in between. However, considering that the Applicants filed an application for stay of execution before the trial court, that time has been taken into consideration in concluding that the delay in filing the current application was explained, and the delay was not inordinate.
30. For the foregoing reasons, the court finds the application dated 18th November 2024 lacks merit and it is hereby dismissed. Costs of the application will abide the determination of the appeal.

Delivered, Dated and Signed at Nyeri on 1st day of August 2025