MATHENGE NGATIA NGARI VS CHRISTOPHER WANGOMB'E

1.    The Defendant/Applicant filed the Notice of Motion dated 4th October 2024, filed on the same date, seeking the following orders –
i)    Prayers 1 – 4 are spent.

ii)    Prayer 5 that this Honourable Court be pleased to say execution against the Defendant/Applicant herein pending hearing and determination of the Appeal to the Court of Appeal. 

2.    The application is supported by the Applicant's Affidavit, in which she states her intention to file an appeal before the Court of Appeal, which she believes has a high chance of success. 

3.    The Applicant is apprehensive that the Plaintiff/Respondent has extracted a Decree pursuant to the Judgment entered in her favour by this Honourable Court on 20th September 2024, and that unless a stay is granted, she will be at liberty to execute the decree, thus rendering the Appeal nugatory. 

4.    That the Applicant further claims that she stands to suffer substantial loss if the stay orders sought herein are not granted, she is willing to comply with any justifiable orders by this Honourable Court and that the Plaintiff/Respondent will not suffer any prejudice if the orders sought herein are granted.

5.    After filing the above application, the Applicant filed another application dated 9th December 2024 under Certificate of Urgency seeking the following orders –
i)    That there be an order directing the Maintenance of Status Quo, in terms of occupation, possession, registration and use, over and in respect of all that property known and registered as Title Number Nyeri/Watuka/700 pending the hearing and determination of this application inter partes.

ii)    That there be an order directing the Maintenance of Status Quo, in terms of occupation, possession, registration, and use, over and in respect of all that property known and registered as Title Number Nyeri/Watuka/700 pending the hearing and determination of this application.

iii)    That there be an order directing the Maintenance of Status Quo, in terms of occupation, possession, registration and use, over and in respect of all that property known and registered as Title Number Nyeri/Watuka/700 pending the hearing and determination of the application dated 4th October 2024.

6.    When the matter came up for an inter partes hearing on 22nd January 2025, the counsels for the parties recorded a consent order as follows –
"By consent of counsel for the parties, the current status quo pertaining to the Land Parcel No.Nyeri/Watuka/700 be maintained pending hearing and determination of the application dated 4th October 2024.  The current status quo is that:- 
a)    The land is registered in the name of Christopher Wangombe (Deceased).
b)    Possession of the land is within the Defendants and Angelica Wambui Muteru Ngatia, and such possession of their respective portions shall be retained.
c)    The Respondents are given 7 days to file a search, then reply to the Application. 
d)    Mention to confirm filing and for directions on 25th February 2025.”
7.    In the meantime, the Respondent filed a response to the applications through the Replying Affidavit sworn on 29th January 2025, stating that her Advocates on record on 22nd January 2025 agreed that the status quo be maintained pending the hearing of this application, in terms of the title deed remaining in the name of Christopher Wangombe.

8.    She stated that unbeknownst to her Advocate, she had already registered the Decree issued on 20th September 2024 at the Land Registry on 26th November 2024. Consequently, the suit property Nyeri/Watuka/700 is now registered in the name of Mary Wangui in Trust for the House of Mathenge Ngatia Ngari (Deceased), Jecinta Njeri Wangombe, Mary Wangui Waigi, Anjerica Wambui Muteru Ngatia, Teresa Wanjiku Mugo and Mary Mumbi Gichuki in equal shares.

9.    The Applicant has not demonstrated the way in which she is likely to suffer substantial loss and/or irreparable damage, and she has not offered any security.

10.    The Respondent further stated that this is an old matter, and it is trite law that a litigant must enjoy the fruits of her Judgment.

11.    The Applicant filed a Supplementary Affidavit stating that the Respondent admitted in the Replying affidavit holding the land in Trust for the respective families.

12.    The Applicant says that she has lived on the land with her family for over forty years without any intention of selling the land to third parties, and the application for stay pending appeal seeks to forestall any sale of the land to third parties by the Respondent, which would render the main Appeal nugatory.

13.    She claims that the Respondent has not committed to not sell, transfer or deal with the suit property to Third Parties despite the consent order made on 22nd January 2025 that confirmed the status quo.

14.    The Applicant claims that she is aware that the Respondent does not work for gain and would be in no position to make any recompense if she were to deal in the suit property by selling it to third parties. 

15.    That the Applicant is informed by her Advocates on record, that the intention of the consent order is still enforceable despite the apparent transfer of the title to the Respondent in Trust since the consent order's primary objective is to refrain parties from any dealings with third parties on the suit property. 

The Applicant’s Submissions
16.    Counsel for the Applicant submitted that the issue for determination is "whether the Applicant has shown sufficient cause for the grant of stay of execution orders."  Counsel relied on the case of RWN & EKW (2019)KEHC 6523 (KLR) and Order 42 Rule 6 Civil Procedure Rules to state that the purpose of a stay of execution is to preserve the subject matter in dispute.  That one must show substantial loss that he will suffer, and that the application has been made without undue delay.  An Applicant must also provide such security as the court may order.

17.    Counsel submitted that the application was filed timeously without delay. He relied on the case of John Cheruiyot Mursoi Vs. Austine Chepkwony Murei & Ano. (2020) KEELC 1222.

18.    Counsel stated that the Applicant would suffer substantial loss, his family having lived on the suit land for over 40 years.  He stated that the pace with which the suit land was transferred is indicative of the Respondent's determination to change the status quo. On security, counsel submitted that it may not be necessary since this is not a monetary Judgment/Decree.

The Respondent’s Submissions
19.    Counsel for the Respondent identified 2 issues for determination:-
a)    Whether the Applicant has satisfied the legal threshold for the grant of a stay of execution pending appeal.

b)    Whether the application has been overtaken by events in light of the execution already carried out.

20.    Counsel relied on Order 42 Rule 6(2) Civil Procedure Rules and concluded that the Applicant has not shown that she will suffer any substantial loss if execution proceeds since the Respondent has not undertaken or threatened any forceful eviction.  The Applicant is part of the Trust that has been registered as proprietors of the suit land, thus the land cannot be sold to 3rd parties.  Counsel relied on the case of Joseph Odide Wahome Vs. David Mbaadi Akelo (2022) eKLR.

21.    Further, counsel submitted that the Applicant has not offered any security for the due performance of the Decree if she loses on Appeal.

22.    Counsel further stated that the application has been overtaken by events since the Decree has been executed and the title registered in the names of the beneficiaries as proprietors.

Analysis and Determination
23.    The court has considered the application herein, the replies thereto and submissions by counsel for the parties and considers the issues for determination are as set out by the Respondent. 

a)    Whether the Applicant has satisfied the legal threshold for the grant of a stay of execution pending appeal.

b)    Whether the application has been overtaken by events in light of the execution already carried out.

24.    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.”

25.    In the famous decision on this aspect cited to this court by the Respondents, namely Butt v Rent Restriction Tribunal (1979) e KLR, Madan JA stated that:
“The litigants and their professional advisors are the best judges of their affairs. If there is no other overwhelming hindrance, a stay ought to be granted so that an appeal, if successful, may not be nugatory. A stay which would otherwise be granted ought not to be refused because the judge considers that another, which in his opinion will be a better remedy, will become available to the applicant at the conclusion of the proceedings.
It is in the discretion of the court to grant or refuse a stay, but what has to be judged in every case is whether there are or not particular circumstances in the case to make an order staying execution. It has been said that the court, as a general rule, ought to exercise its best discretion in a way so as not to prevent the appeal, if successful, from being nugatory, per Brett, LJ in Wilson v Church (No 2) 12 Ch D (1879) 454 at p 459. In the same case, Cotton LJ said at p 458:
“I will state my opinion that when a party is appealing, exercising his undoubted right of appeal, this court ought to see that the appeal, if successful, is not nugatory.”
26.    In the case of Kenya Shell v Kibiru and Another (Supra) Platt Ag. JA (as he then was) observed that: -
"It is usually a good rule to see if Order XLI Rule 4 of the Civil Procedure Rules can be substantiated. If there is no evidence of substantial loss to the applicant, it would be a rare case when an appeal would be rendered nugatory by some other event. Substantial loss in its various forms is the cornerstone of both jurisdictions for granting stay. That is what has to be prevented.  Therefore, without this evidence, it is difficult to see why the respondents should be kept out of their money.”
Earlier on, Hancox JA in his ruling observed that:
“It is true to say that in consideration [sic] an application for stay, the court doing so must address its collective mind to the question of whether to refuse it would… render the appeal nugatory…...
As I said, I accept the proposition that if it is shown that execution or enforcement would render a proposed appeal nugatory, then a stay can properly be given.  Parallel with that is the equally important proposition that a litigant, if successful, should not be deprived of the fruits of a judgment in his favour without just cause.”
27.    Having considered the above legal position, the court finds that the application herein was filed timeously since Judgment was delivered on 20th September 2024, while the application was filed on 4th October 2024. 

28.    The court has also considered that upon delivery of the Judgment herein, the Decree was on 27th November 2024 registered at the Lands Office and the following entry was made on the Register of Land Parcel No.Nyeri/Watuka/700;
“Decree dated 20th September 2024 ELC Nyeri Case No.652 of 2014 determining the trust registered in entry 7 above as follows:-
“Mary Waigi in Trust for the House of Mathenge Ngatia Ngari (Dcd) Jecinta Njeri Wangombe, Mary Wangui Waigi, Anjerica Wambui Muteru Ngatia, Teresa Wanjiku Mugo and Mary Mumbi Gichuki in equal shares.”

29.    The court finds that even though the above entry has been made on the register of the suit land, the land remains held in trust by Mary Waigi for the beneficiaries stated above in equal shares. The apprehension by the Applicant of the likelihood that the land could be subdivided equally in accordance with the Decree, in the court's view, is not unfounded or far-fetched.  If that kind of action is taken, the nature of the suit land will have changed, and a lot will be required to change the land back to its initial state in case the appeal herein is successful.

30.    In the circumstances, the court is of the view that an order requiring the parties hereto maintain the current status quo will serve the purpose of preservation of the suit land pending hearing and determination of the Appeal.  Such an order would also ensure that the Appeal is not rendered nugatory if the Applicant succeeds.

31.    On the 2nd issue, the Respondent claims that the registration of the Decree of the court on the register of the suit land as stated above, has rendered the application herein nugatory. The court, however, disagrees with this view since the trust under which the land is held has not been completely determined by way of subdivision of the suit land in equal shares among the beneficiaries. 

32.    The court is satisfied that the status quo described in the consent order dated 22nd January 2025 ought to be adopted pending hearing and determination of the Appeal to the Court of Appeal, save for changes to reflect the current status of the title to the suit land. 

33.    In the case of Bia Tosha Distributors Limited v Kenya Breweries Limited & 6 others  [2023] KESC 14 (KLR), the Court stated as follows on issuance of orders of maintenance of status quo:
“At this juncture, we need to caution that courts should be careful when issuing conservatory and other interim relief to parties. In particular, while it is well intended to preserve the substratum of the case by way of status quo orders, sight should never be lost of the fact that parties appearing before courts for such urgent relief are always at the height of their contest. If indeed the courts must use the term status quo, it is only practical that the same be accompanied by the descriptive particulars of the exact position that the Court seeks to preserve. This will avoid situations like the present one, where each party is left to its own perception as to what the court meant. This ultimately erodes the very essence of court intervention and subjects the court to undesirable controversy regarding compliance with the said order.”
34.    The court thus makes the following orders in disposition of the application dated 4th October 2024 –
a)    Pending hearing and final determination of an Appeal to the Court of Appeal, the current status quo pertaining to Land Parcel No. Nyeri/Watuka/700 be maintained.

b)    The current status quo is that the land is registered in the name of Mary Wangui Waigi in Trust for the house of Mathenge Ngatia Ngari (Deceased), Jecinta Njeri Wang’ombe, Mary Wangui Waigi, Anjerica Wambui Muteru Ngatia, Teresa Wanjiku Mugo and Mary Mumbi Gichuki in equal shares.

c)    That possession and use of the said land is with the Defendants and Angelica Wambui Muteru Ngatia, and such possession of their respective portions shall be retained.

d)    Costs of this application shall abide the outcome of the Appeal.

Dated, Signed and Delivered at Nyeri, this 4th day of December 2025

In the Presence of:-
Ms Kendi        -    Court Assistant
Mrs. Maina         -    For Plaintiff/Respondent
M/S Gitari holding brief for Toro  -    For Defendant/Applicant