There is no dispute that on 26th April 2024, I decided that Michael Kimani Kariuki was the legal owner of LR No Molo Township Block2/86. I did find that the defendants were trespassers and ordered them to pay the plaintiff Kshs2,000,000 as general damages. The court further granted the plaintiff orders of permanent injunction restraining the defendant from inter alia remaining on the parcel of land. The counter- claim was dismissed with costs. The defendant has come to this court vide application dated 4th June 2024 seeking orders that pending the hearing and determination of an appeal against the entire decision of this court there be stay of execution of the orders. The applications was filed more than 30 days of the decision. To be precise 39 days after the decision of this court. The application is based on grounds that the decision took away the applicants ownership of the land and that the applicant filed an appeal which will be rendered nugatory unless stay is granted. Moreover, that the land is now at the disposal of the respondent who can deal with it in a manner that is prejudicial to the applicant. That substantial loss is likely to arise unless stay is granted. The application according to the applicant has been made without unreasonable delay. The supporting affidavit reiterates the grounds. The respondent in reply states that the notice of appeal is not formally lodged as by law required hence it does not satisfy the threshold to prove an existing appeal. Moreover, that no memorandum of Appeal has been filed
I have considered the application replying affidavit, supporting affidavit and rival submissions and do find that the applicant took approximately 39 days to file the application for stay of execution pending appeal. This according to this court is inordinate delay considering the age of the case. There is no explanation why the application was filed days.
Order 42 rule 6 provides:
6. Stay in case of appeal [Order 42, rule 6]
(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.
(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.
(4) For the purposes of this rule an appeal to the Court of Appeal shall be deemed to have been filed when under the Rules of that Court notice of appeal has been given.
In this case, I do find that the loss of Kshs2,000,000 has not been demonstrated to be substantiThere is no dispute that on 26th April 2024, I decided that Michael Kimani Kariuki was the legal owner of LR No Molo Township Block2/86. I did find that the defendants were trespassers and ordered them to pay the plaintiff Kshs2,000,000 as general damages. The court further granted the plaintiff orders of permanent injunction restraining the defendant from inter alia remaining on the parcel of land. The counter- claim was dismissed with costs. The defendant has come to this court vide application dated 4th June 2024 seeking orders that pending the hearing and determination of an appeal against the entire decision of this court there be stay of execution of the orders. The applications was filed more than 30 days of the decision. To be precise 39 days after the decision of this court. The application is based on grounds that the decision took away the applicants ownership of the land and that the applicant filed an appeal which will be rendered nugatory unless stay is granted. Moreover, that the land is now at the disposal of the respondent who can deal with it in a manner that is prejudicial to the applicant. That substantial loss is likely to arise unless stay is granted. The application according to the applicant has been made without unreasonable delay. The supporting affidavit reiterates the grounds. The respondent in reply states that the notice of appeal is not formally lodged as by law required hence it does not satisfy the threshold to prove an existing appeal. Moreover, that no memorandum of Appeal has been filed
I have considered the application replying affidavit, supporting affidavit and rival submissions and do find that the applicant took approximately 39 days to file the application for stay of execution pending appeal. This according to this court is inordinate delay considering the age of the case. There is no explanation why the application was filed days.
Order 42 rule 6 provides:
6. Stay in case of appeal [Order 42, rule 6]
(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.
(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.
(4) For the purposes of this rule an appeal to the Court of Appeal shall be deemed to have been filed when under the Rules of that Court notice of appeal has been given.
In this case, I do find that the loss of Kshs2,000,000 has not been demonstrated to be substantial and that there is no evidence that it cannot be refunded by the respondent. Moreover, there is no evidence that the land is developed as no valuation report was produced. For an order of stay of execution pending appeal to be granted, the applicant must demonstrate that he can offer a security. It is not the duty of this court to grant orders that the applicant do furnish security without evidence that the applicant can furnish security. The applicant should prove that he is able to give security. This has not been demonstrated. I do find, the application not merited and is dismissed with costs.
Ruling dated, signed and delivered electronically at Nakuru this 26th day of September 2024.
al and that there is no evidence that it cannot be refunded by the respondent. Moreover, there is no evidence that the land is developed as no valuation report was produced. For an order of stay of execution pending appeal to be granted, the applicant must demonstrate that he can offer a security. It is not the duty of this court to grant orders that the applicant do furnish security without evidence that the applicant can furnish security. The applicant should prove that he is able to give security. This has not been demonstrated. I do find, the application not merited and is dismissed with costs.
Ruling dated, signed and delivered electronically at Nakuru this 26th day of September 2024.
I have considered the application replying affidavit, supporting affidavit and rival submissions and do find that the applicant took approximately 39 days to file the application for stay of execution pending appeal. This according to this court is inordinate delay considering the age of the case. There is no explanation why the application was filed days.
Order 42 rule 6 provides:
6. Stay in case of appeal [Order 42, rule 6]
(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.
(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.
(4) For the purposes of this rule an appeal to the Court of Appeal shall be deemed to have been filed when under the Rules of that Court notice of appeal has been given.
In this case, I do find that the loss of Kshs2,000,000 has not been demonstrated to be substantiThere is no dispute that on 26th April 2024, I decided that Michael Kimani Kariuki was the legal owner of LR No Molo Township Block2/86. I did find that the defendants were trespassers and ordered them to pay the plaintiff Kshs2,000,000 as general damages. The court further granted the plaintiff orders of permanent injunction restraining the defendant from inter alia remaining on the parcel of land. The counter- claim was dismissed with costs. The defendant has come to this court vide application dated 4th June 2024 seeking orders that pending the hearing and determination of an appeal against the entire decision of this court there be stay of execution of the orders. The applications was filed more than 30 days of the decision. To be precise 39 days after the decision of this court. The application is based on grounds that the decision took away the applicants ownership of the land and that the applicant filed an appeal which will be rendered nugatory unless stay is granted. Moreover, that the land is now at the disposal of the respondent who can deal with it in a manner that is prejudicial to the applicant. That substantial loss is likely to arise unless stay is granted. The application according to the applicant has been made without unreasonable delay. The supporting affidavit reiterates the grounds. The respondent in reply states that the notice of appeal is not formally lodged as by law required hence it does not satisfy the threshold to prove an existing appeal. Moreover, that no memorandum of Appeal has been filed
I have considered the application replying affidavit, supporting affidavit and rival submissions and do find that the applicant took approximately 39 days to file the application for stay of execution pending appeal. This according to this court is inordinate delay considering the age of the case. There is no explanation why the application was filed days.
Order 42 rule 6 provides:
6. Stay in case of appeal [Order 42, rule 6]
(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.
(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.
(4) For the purposes of this rule an appeal to the Court of Appeal shall be deemed to have been filed when under the Rules of that Court notice of appeal has been given.
In this case, I do find that the loss of Kshs2,000,000 has not been demonstrated to be substantial and that there is no evidence that it cannot be refunded by the respondent. Moreover, there is no evidence that the land is developed as no valuation report was produced. For an order of stay of execution pending appeal to be granted, the applicant must demonstrate that he can offer a security. It is not the duty of this court to grant orders that the applicant do furnish security without evidence that the applicant can furnish security. The applicant should prove that he is able to give security. This has not been demonstrated. I do find, the application not merited and is dismissed with costs.
Ruling dated, signed and delivered electronically at Nakuru this 26th day of September 2024.
al and that there is no evidence that it cannot be refunded by the respondent. Moreover, there is no evidence that the land is developed as no valuation report was produced. For an order of stay of execution pending appeal to be granted, the applicant must demonstrate that he can offer a security. It is not the duty of this court to grant orders that the applicant do furnish security without evidence that the applicant can furnish security. The applicant should prove that he is able to give security. This has not been demonstrated. I do find, the application not merited and is dismissed with costs.
Ruling dated, signed and delivered electronically at Nakuru this 26th day of September 2024.