The Appellant/Applicant moved this Court by way of a Notice of Motion dated 22nd October 2025 seeking the following orders:
1. THAT this Honourable Court be pleased to grant a stay of execution of the Judgment delivered on 30th September 2025 by Hon. Francis Kyambia (CM) in Embu MCELC No. E041 of 2022; Mercy Murigo Nyaga & Lucy Kinna Nyaga –vs– Samuel Nyaga George, together with the resultant decree pending the hearing and final determination of the appeal herein.
2. THAT any other orders that this Honourable Court may deem just and expedient in the interest of justice be granted.
3. THAT the costs of this application be provided for.
Background
The application is premised on the grounds appearing on the face thereof and is supported by the affidavit of the Appellant sworn on the same date. The Applicant deposed that the subordinate court delivered its judgment on 30th September 2025, following which she filed a Memorandum of Appeal on 16th October 2025. She contends that unless the orders of stay are granted, the Respondent may proceed with execution, which would render the appeal nugatory.
The Applicant further deponed that the subject property ought to be preserved pending the hearing and determination of the appeal as she and her siblings reside thereon and stand to suffer substantial loss through eviction.
The Respondent opposed the application through a Further Replying Affidavit wherein he deposed that the decree sought to be stayed was issued after a full hearing and remains valid and enforceable. He averred that the Applicant was lawfully ordered to vacate Land Parcel No. GATURI/NEMBUTE/929 and that the dispute regarding the property had previously been determined in Nairobi High Court Succession Cause No. 844 of 2021, where the court declared the Respondent and his siblings as the lawful beneficiaries of the property.
The Respondent further contended that the Applicant has no legal or equitable interest in the suit property and that the present application is intended merely to delay the enjoyment of the fruits of a lawful judgment.
Both parties filed written submissions which this Court has carefully considered.
Issue for Determination
Having considered the application, the affidavits on record and the rival submissions of the parties, the single issue falling for determination is:
Whether the Applicant has satisfied the conditions for the grant of stay of execution pending appeal.
The applicable legal framework governing stay of execution pending appeal is Order 42 Rule 6(2) of the Civil Procedure Rules, which provides that:
“No order for stay of execution shall be made unless—(a) the court is satisfied that substantial loss may result to the applicant unless the order is made;(b) the application has been made without unreasonable delay; and(c) such security as the court orders for the due performance of the decree or order as may ultimately be binding on the applicant has been given.”
The principles governing the grant of stay of execution have been settled in numerous decisions of the courts. In Butt v Rent Restriction Tribunal [1982] KLR 417, the Court of Appeal held that the court should exercise its discretion in a manner that does not render the appeal nugatory while at the same time ensuring that a successful litigant is not unjustly deprived of the fruits of his judgment.
Similarly, in Kenya Shell Ltd v Benjamin Karuga Kibiru & Another [1986] KLR 410, the Court of Appeal emphasized that substantial loss is the cornerstone of an application for stay of execution.
ANALYSIS AND DECISION
Substantial loss is the cornerstone upon which an application for stay of execution rests. The Applicant contends that execution of the decree will lead to her eviction together with her siblings from the suit property, thereby rendering them destitute.
The Respondent on the other hand maintains that the Applicant unlawfully entered the suit property and has no legally recognizable interest in the same, particularly in view of the determination made in the succession proceedings.
This Court has considered the rival positions. It is not in dispute that the decree sought to be stayed directs the eviction of the Applicant from Land Parcel No. GATURI/NEMBUTE/929. Eviction from land is not a trivial matter as it entails the loss of possession and occupation of property. If the eviction is carried out before the appeal is heard and the appeal subsequently succeeds, the Applicant may have already been dispossessed of the property.
The Court is therefore satisfied that the Applicant has demonstrated the likelihood of suffering substantial loss if stay is not granted.
The judgment sought to be appealed from was delivered on 30th September 2025. The Memorandum of Appeal was filed on 16th October 2025, while the present application was filed on 22nd October 2025.
In the circumstances of this case, the Court is satisfied that the application was filed timeously and without unreasonable delay.
The third requirement under Order 42 Rule 6 of the Civil Procedure Rules is the provision of security for the due performance of the decree.
The Applicant has expressed willingness to comply with any conditions on security that the Court may impose. The Respondent on his part urged the Court that if stay is granted, the Applicant should be ordered to deposit Kshs. 200,000 as security.
The requirement for security serves the purpose of balancing the interests of both parties so that the Respondent is not prejudiced should the appeal ultimately fail.
In the circumstances of this case, this Court finds it appropriate to order the Applicant to provide reasonable security.
In exercising its discretion, this Court must strike a balance between two competing rights: the right of the successful litigant to enjoy the fruits of his judgment and the right of the appellant to pursue his appeal without the risk of the same being rendered nugatory.
Having carefully considered the material placed before the Court, I am satisfied that the Applicant has met the threshold set out under Order 42 Rule 6 of the Civil Procedure Rules.
Accordingly, the Notice of Motion dated 22nd October 2025 is allowed on the following conditions:
1. There shall be a stay of execution of the Judgment delivered on 30th September 2025 in Embu MCELC No. E041 of 2022 pending the hearing and determination of this appeal.
2. The stay granted herein is conditional upon the Applicant depositing Kshs. 100,000 in Court as security for the due performance of the decree within thirty (30) days from the date of this ruling.
3. In default of compliance with Order (2) above, the stay granted herein shall automatically lapse.
4. Costs of this application shall abide the outcome of the appeal.
It is so ordered.
DATED, SIGNED AND DELIVERED AT EMBU THIS 12TH DAY OF MARCH, 2026.
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E.C.CHERONO
ELC JUDGE
In the presence of;
1. Mr. Mariaria for the Respondent.
2. Mr. Ombachi for the Applicant.
3. Diana Kemboi C/A.
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