Ahmad Said Karama, represented by his lawful Attorney Hussein Karama Said has come to this court seeking orders that he be enjoined in this suit and that this Honourable Court be pleased to grant an ex parte order of stay of execution of judgment delivered on 23rd July 2025 and Decree issued and any other consequential orders.
Moreover, that this honorable court be pleased to order or setting aside all proceedings, judgment delivered on 23rd July 2025, the decree issued and any other consequential orders. The proposed interested party be granted unconditional leave to defend the court claim on its merits. Costs of this application be awarded to the applicant.
The application is based on grounds that on the 11.2.2026, the defendants approached the proposed interested party and informed them that the house sitting on the suit land known as Mombasa/Block XLV/318 would be demolished at any moment.
That after making follow ups at the court registry the proposed interested party has discovered that when this dispute was commenced it was settled by way of a consent between all the parties save for the 9th plaintiff who was not included in the consent. That there was a counter claim that was filed by the defendants as against the claim.
The 9th plaintiff suit which was never prosecuted was dismissed and the defendants counter claim allowed via a judgment delivered on 23.7.2025. That there are warrants for vacant possession dated 21.1.2026 to be executed by Beyond Auctioneers that could be executed anytime now. The applicant states that all along the applicant has never been made a party to these proceedings yet the defendants know and have reasons to know that he is the owner of the house situate on the suit property. The proposed Interested Party was unaware of the proceedings and craves for an opportunity to be heard on merit.
The applicant contends that unless he is accorded an opportunity to be heard, he stands to suffer untold misery and would be rendered destitute. There will be a breach of his fundamental right to a fair hearing if the order sought is not granted. That defendants would suffer no prejudice in the event the orders sought are issued.
In the supporting affidavit Hussein Karama Said stated that he is appointed via a Power of Attorney and thus competent to swear this affidavit. He reiterates the grounds of the application.
The director of the 1st defendant filed a replying affidavit stating that the application is misconceived, dishonest, and a calculated attempt to obstruct execution of a lawful decree of this Honourable Court as the judgment was delivered on 23rd July 2025 after full participation by the applicant. The Court dismissed the 9th Plaintiffs claim and entered judgment in favour of the 1st to 3rd Defendants on the Counterclaim.
The Court made specific findings that the 9th Plaintiff had failed to tender evidence and that the Counterclaim was unchallenged. The court found that the defendants were the registered proprietors whereas 9th Plaintiff was a trespasser. A formal Decree was extracted and sealed reflecting, inter alia, a declaration of exclusive possession; a finding that the 9th Plaintiff is illegally in occupation; a demolition order within ninety (90) days; Mesne profits of KES 1,000,000 Costs and interest. The 9th Plaintiff was personally served on 24th April 2024 at his Bondeni residence with a Hearing Notice.
The Affidavit of Service confirms he accepted service but declined to sign. He did not attend the hearing on 23rd July 2024 even though he was furnished with a virtual link. The Defendants proceeded by formal proof and testified.
On 17th October 2024, Advocate George Egunza appeared for the 9th Plaintiff and informed the Court he required time to set his house in order and file responses. On 3rd December 2024, counsel again appeared when the issue of the missing court file arose.
The respondent contends that the Judgment confirms the Court handled the issue of missing proceedings and directed investigations, after which directions were given and a judgment date fixed. No submissions were ever filed by the 9th Plaintiff despite opportunity. The allegation that the 9th Plaintiff was unaware of proceedings is false.
The respondent states that after judgment, the Decree was forwarded to the 9th Plaintiff's Advocates for approval. The forwarding letter dated 5th September 2025 was served upon the firm of George Egunza & Associates and acknowledged. The 9th Plaintiff's Advocates were also served with: Notice of taxation, Party and Party Bill of Costs, Mention Notices, Execution documents. Affidavits of service confirming service by email pursuant to Order 5 Rule 22B are on record.
The respondent argues that upon lapse of the ninety (90) days granted in the Decree, the decree holder lawfully applied for warrants of demolition. The application for execution is part of the Court record. The 9th Plaintiff only resurfaced when demolition became imminent.
According to the respondent, the application is an abuse of court process as the 9th Plaintiff was served personally and was represented by counsel and failed to file defence to the Counterclaim; and later failed to file submissions; Failed to appeal; Failed to apply for review within time and that More than six (6) months have lapsed since judgment. The application is not made in good faith but solely to scuttle execution and Litigation must come to an end. On the issue of stay, the respondent argues that there are no grounds for setting aside judgment or stay of execution. The 9th Plaintiff has not met the threshold under Order 42 Rule 6 for stay as he has not demonstrated that he will suffer substantial loss and that he has made a timely application. Moreover, he has not offered security. The respondent believes that the Decree is clear, valid and enforceable. The Court already determined ownership conclusively. The issue of possession is res-judicata.
The respondent contends that the 9th Plaintiff continues to occupy the property unlawfully. The Defendants have been denied use and enjoyment of their land since 2020. Further delay perpetuates illegality.
Applicant’s Submissions
The applicant submits that he was never made a party to the suit herein. It is also his argument that after the Counter Claim was determined, the Defendants have commenced execution whose effect would be of the house situate on the suit land known as Mombasa/Block XLV/318. According to the applicant, the execution process is now at advanced stages.
The Applicant submits that he is not the 9th Plaintiff. It is the further submission of the applicant that he owns the house jointly with Fatuma Said Karama & Karama Said Karama.which house is to be demolished.
The said house was bought by the applicant and the other joint owners sometimes in December 1978. The suit house was bought from one Assor Said Basharahil with the express knowledge and consent of Maya binti Salim and Said bin Seif the Defendants predecessors. The applicant refers this Court to the Applicants last annexture marked as HKS-3 which is a copy of the sale agreement of the suit house.
The applicant further submits that the motion is not contested and ought to be allowed. The Replying Affidavit sworn on the 20th February 2026 only refers to the 9th Plaintiff one Said Karama. The Defendants argue that the 9th Plaintiff Said Karama was served and that he was aware of the proceedings giving rise to the judgment of this Court. Whereas it appears that the 9th Plaintiff was served, the same cannot be said of the interested party/Applicant herein. The Applicant has demonstrated that he bought the house sometimes in 1978. He has also demonstrated that he was never a party to this suit and should execution be allowed to proceed his house will be demolished and he would have been condemned unheard.
The applicant contends that should this court decline to allow the Application as sough herein the Applicant would have been condemned unheard and his constitutional right to property under Article 40 as well as his right to be heard under Article 50 of the Constitution breached.
The applicant refers to the dictum of the Court of Appeal in Milicent Zighe Mwachala Vs Teremiah Mghanga Msafari . Appeal No E024 of 2022 while allowing an application similar to the one before this court held;
By reason of the matters aforesaid, the 1st respondent stood condemned unheard in breach of his constitutional right to property under Article 40 as well as his right to be heard under Article 50 of the Constitution. It is for these profound reasons that he moved to the superior Court on appeal against the trial court's decision to deny him the orders sought to set aside of review its decision and allow his joinder as a party in fresh proceedings to facilitate ventilation of the parties' competing claims on merit. Otherwise, he stood to suffer grave injustice,
Further in Alton Homes Limited & another v Davis Nathan Chelogoi & 5 others Court of Appeal held
"decisions reached in breach of the rules of natural justice are liable to be set aside as of right."
According to the applicant, this is a suit where there was blatant breach of the rules of natural justice, the Orders sought ought to issue.
Respondents Submissions
The respondents argue that the governing provision on stay of execution n is Order 42 Rule 6(2) of the Civil Procedure Rules which provides:
"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 such decree has been given by the applicant. "
These three conditions are mandatory and conjunctive. The respondent relies on Butt v Rent Restriction Tribunal [1982) 1 KLR 417 where the Court of Appeal held:
"The power of the court to grant or refuse an application for a stay of execution is discretionary. The discretion should be exercised in such a way as not to prevent an appeal... but the court must also consider the rights of the successful litigant. "
The successful litigant is entitled to enjoy the fruits of judgment,
On whether substantial loss has been demonstrated the respondent argues that the Applicant bears the burden. The respondent refers to the case of Kenya Shell Limited v Benjamin Karuga Kibiru & Another [1986] eKLR Platt JA held:
"It is usually a good rule to see if Order 41 rule 4 (now Order 42 rule 6) 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.”
Further, Gachuhi JA stated:
"Substantial loss is what has to be prevented... it is the cornerstone of both jurisdictions for granting stay.
The 9th Plaintiff merely alleges that demolition will cause loss. That is not substantial loss within the meaning of the law. The Court already declared him a trespasser. A trespasser cannot claim equitable protection against execution of a lawful decree,
The respondent has come to court with unreasonable delay since Judgment was delivered on 23rd July 2025. The Decree granted ninety (90) days stay and that execution only commenced after lapse of that period. The present application has been brought months after delivery of judgment and after lapse of compliance period. The respondent cites the case of Utalii Transport Company Limited & 3 Others v NIC Bank Limited & Another [20141 eKLR Gikonyo J stated:
"Inordinate delay is delay that is not excusable... justice delayed is justice denied. "
The respondent contends that the Applicant offers no plausible explanation for delay. He was represented by counsel up to judgment. Silence for months, then urgency at demolition stage, is indolence and not diligence. Lastly that the respondent contends that the applicant has not offered security for due performance which is fatal. He cites the case of Arun C Sharma v Ashana Raikundalia t/a Rairundalia & Co Advocates & 2 Others [2014] eKLR. The Court held:
"The purpose of security under Order 42 rule 6 is to guarantee the due performance of such decree or order as may ultimately be binding on the applicant."
Failure to offer security disentitles the Applicant to stay.
The respondent argues that the court is functus officio. The Judgment conclusively determined ownership and possession.
In Telkom Kenya Limited v John Ochanda (Suing on his own behalf and on behalf of 996 Former Employees of Tellcom Kenya Limited) [2014] eKLR. The Court of Appeal stated:
"Functus officio is an enduring principle of law that prevents the re-opening of a matter before a court that rendered the final decision thereon”
The Court cannot sit on appeal over its own final decree under the guise of stay where no competent appeal exists.
The respondent in conclusion, the respondent argues that rights of the successful litigant must be granted. He refers to the case of Samvir Trustee Limited v Guardian Bank Limited [2007] eKLR. The Court stated:
"The Court must balance the interests of the applicant with those of the respondent who is entitled to enjoy the fruits of his judgment. "The Defendants have been kept out of possession since 2020.
Mesne profits were awarded. Further delay compounds injustice.
The application is an abuse of process as the applicant was served personally, was represented, filed no defence, filed no submissions, did not appeal, did not seek review and only moved court after warrants issued.
The respondent cites the case of Muchanga investment ltd v Safari’s Unlimited [Africa] Ltd and 2 others [2009] eKLR
The court of appeal defined abuse of process as
“Using the process of the court in a manner significantly different from its ordinary and proper use”
This application is precisely that.
I have considered the application replying affidavit and oral submissions and so find that on the issue of stay of execution pending appeal, this court finds that order 42 of the Civil Procedure Rules does not apply in this case because the applicant has not filed an appeal but an application to set aside the judgment. The prayer for stay pending appeal is superfluous and cannot be allowed as there is no appeal.
Stay of execution pending appeal is based on Order 42 Rule 6 of the Civil Procedure Rules, which establishes that an appeal does not automatically stay the execution of a decree or order. To obtain a stay, the applicant must satisfy the court that substantial loss may result if the order is executed, that the application was made without unreasonable delay, and that security for the due performance of the decree has been provided. The rule provides as follows:-
The principles for granting stay of execution are provided for under Order 42 rule 6 (1) of the Civil Procedure Rules as follows:
“No appeal or a 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 an application being made, to consider such application and to make such orders thereon as may to it seem just, 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 the orders set aside.”
Order 42, rule 6 (2) states:
“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 Hamisi Juma Mbaya v Amakecho Mbaya [2018]eKLR it was held:-
“The appellants need to satisfy the Court on the following conditions before they can be granted the stay orders:
1. Substantial loss may result to the applicant unless the order is made.
2. The application has been made without unreasonable delay, and
3. 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 by the applicant.”
The applicants prayer for stay of execution pending appeal is based on a misapprehension of the law because the applicant has not filed an appeal but an application to set aside a judgment and therefore the court cannot grant an order of stay pending a non-existent appeal.
the applicant was not a party to the suit and was not aware of the proceedings. The applicant is Ahmad Said Karama whereas the 9th plaintiff was Said Karama and they are the different persons. Under the doctrine of judicial precedent and stare decisis, I’m bound to follow the decision of the court of appeal in The Court of Appeal in the case of Alton Homes Limited & another v Davis Nathan Chelogoi & 5 others where it was held:-
"It is not in doubt that the right to be heard is a valued right and which is enshrined in our Constitution. This right was not observed herein because for reasons not made clear to this court, the 2nd defendant failed to bring on board the 1st interested party whom he sold his suit property to thus orders were issued by this court which Orders have adversely affected the 1st interested party. The Constitution of Kenya is very clear on the right to protection of one's property and the said property cannot be arbitrarily taken away from such an owner without being heard or without being accorded an opportunity to ventilate his case."
The right to be heard cannot be wished away as it is a cardinal human right and therefore the applicant ought to have been heard before the house he was occupying was taken away through a decision of this court.
On the other hand, the the respondent has not controverted the allegation that the applicant is in occupation of the house on the suit land and was not a party in the suit. I do find that the applicant should not be condemned unheard as this would be contrary to Article 50 of the Constitution of Kenya 2010.
I do set aside the judgment delivered on 23.7.2025. The matter to be heard denovo. The applicant is enjoined as the 10th defendant in the counter claim.
Moreover, that this honorable court be pleased to order or setting aside all proceedings, judgment delivered on 23rd July 2025, the decree issued and any other consequential orders. The proposed interested party be granted unconditional leave to defend the court claim on its merits. Costs of this application be awarded to the applicant.
The application is based on grounds that on the 11.2.2026, the defendants approached the proposed interested party and informed them that the house sitting on the suit land known as Mombasa/Block XLV/318 would be demolished at any moment.
That after making follow ups at the court registry the proposed interested party has discovered that when this dispute was commenced it was settled by way of a consent between all the parties save for the 9th plaintiff who was not included in the consent. That there was a counter claim that was filed by the defendants as against the claim.
The 9th plaintiff suit which was never prosecuted was dismissed and the defendants counter claim allowed via a judgment delivered on 23.7.2025. That there are warrants for vacant possession dated 21.1.2026 to be executed by Beyond Auctioneers that could be executed anytime now. The applicant states that all along the applicant has never been made a party to these proceedings yet the defendants know and have reasons to know that he is the owner of the house situate on the suit property. The proposed Interested Party was unaware of the proceedings and craves for an opportunity to be heard on merit.
The applicant contends that unless he is accorded an opportunity to be heard, he stands to suffer untold misery and would be rendered destitute. There will be a breach of his fundamental right to a fair hearing if the order sought is not granted. That defendants would suffer no prejudice in the event the orders sought are issued.
In the supporting affidavit Hussein Karama Said stated that he is appointed via a Power of Attorney and thus competent to swear this affidavit. He reiterates the grounds of the application.
The director of the 1st defendant filed a replying affidavit stating that the application is misconceived, dishonest, and a calculated attempt to obstruct execution of a lawful decree of this Honourable Court as the judgment was delivered on 23rd July 2025 after full participation by the applicant. The Court dismissed the 9th Plaintiffs claim and entered judgment in favour of the 1st to 3rd Defendants on the Counterclaim.
The Court made specific findings that the 9th Plaintiff had failed to tender evidence and that the Counterclaim was unchallenged. The court found that the defendants were the registered proprietors whereas 9th Plaintiff was a trespasser. A formal Decree was extracted and sealed reflecting, inter alia, a declaration of exclusive possession; a finding that the 9th Plaintiff is illegally in occupation; a demolition order within ninety (90) days; Mesne profits of KES 1,000,000 Costs and interest. The 9th Plaintiff was personally served on 24th April 2024 at his Bondeni residence with a Hearing Notice.
The Affidavit of Service confirms he accepted service but declined to sign. He did not attend the hearing on 23rd July 2024 even though he was furnished with a virtual link. The Defendants proceeded by formal proof and testified.
On 17th October 2024, Advocate George Egunza appeared for the 9th Plaintiff and informed the Court he required time to set his house in order and file responses. On 3rd December 2024, counsel again appeared when the issue of the missing court file arose.
The respondent contends that the Judgment confirms the Court handled the issue of missing proceedings and directed investigations, after which directions were given and a judgment date fixed. No submissions were ever filed by the 9th Plaintiff despite opportunity. The allegation that the 9th Plaintiff was unaware of proceedings is false.
The respondent states that after judgment, the Decree was forwarded to the 9th Plaintiff's Advocates for approval. The forwarding letter dated 5th September 2025 was served upon the firm of George Egunza & Associates and acknowledged. The 9th Plaintiff's Advocates were also served with: Notice of taxation, Party and Party Bill of Costs, Mention Notices, Execution documents. Affidavits of service confirming service by email pursuant to Order 5 Rule 22B are on record.
The respondent argues that upon lapse of the ninety (90) days granted in the Decree, the decree holder lawfully applied for warrants of demolition. The application for execution is part of the Court record. The 9th Plaintiff only resurfaced when demolition became imminent.
According to the respondent, the application is an abuse of court process as the 9th Plaintiff was served personally and was represented by counsel and failed to file defence to the Counterclaim; and later failed to file submissions; Failed to appeal; Failed to apply for review within time and that More than six (6) months have lapsed since judgment. The application is not made in good faith but solely to scuttle execution and Litigation must come to an end. On the issue of stay, the respondent argues that there are no grounds for setting aside judgment or stay of execution. The 9th Plaintiff has not met the threshold under Order 42 Rule 6 for stay as he has not demonstrated that he will suffer substantial loss and that he has made a timely application. Moreover, he has not offered security. The respondent believes that the Decree is clear, valid and enforceable. The Court already determined ownership conclusively. The issue of possession is res-judicata.
The respondent contends that the 9th Plaintiff continues to occupy the property unlawfully. The Defendants have been denied use and enjoyment of their land since 2020. Further delay perpetuates illegality.
Applicant’s Submissions
The applicant submits that he was never made a party to the suit herein. It is also his argument that after the Counter Claim was determined, the Defendants have commenced execution whose effect would be of the house situate on the suit land known as Mombasa/Block XLV/318. According to the applicant, the execution process is now at advanced stages.
The Applicant submits that he is not the 9th Plaintiff. It is the further submission of the applicant that he owns the house jointly with Fatuma Said Karama & Karama Said Karama.which house is to be demolished.
The said house was bought by the applicant and the other joint owners sometimes in December 1978. The suit house was bought from one Assor Said Basharahil with the express knowledge and consent of Maya binti Salim and Said bin Seif the Defendants predecessors. The applicant refers this Court to the Applicants last annexture marked as HKS-3 which is a copy of the sale agreement of the suit house.
The applicant further submits that the motion is not contested and ought to be allowed. The Replying Affidavit sworn on the 20th February 2026 only refers to the 9th Plaintiff one Said Karama. The Defendants argue that the 9th Plaintiff Said Karama was served and that he was aware of the proceedings giving rise to the judgment of this Court. Whereas it appears that the 9th Plaintiff was served, the same cannot be said of the interested party/Applicant herein. The Applicant has demonstrated that he bought the house sometimes in 1978. He has also demonstrated that he was never a party to this suit and should execution be allowed to proceed his house will be demolished and he would have been condemned unheard.
The applicant contends that should this court decline to allow the Application as sough herein the Applicant would have been condemned unheard and his constitutional right to property under Article 40 as well as his right to be heard under Article 50 of the Constitution breached.
The applicant refers to the dictum of the Court of Appeal in Milicent Zighe Mwachala Vs Teremiah Mghanga Msafari . Appeal No E024 of 2022 while allowing an application similar to the one before this court held;
By reason of the matters aforesaid, the 1st respondent stood condemned unheard in breach of his constitutional right to property under Article 40 as well as his right to be heard under Article 50 of the Constitution. It is for these profound reasons that he moved to the superior Court on appeal against the trial court's decision to deny him the orders sought to set aside of review its decision and allow his joinder as a party in fresh proceedings to facilitate ventilation of the parties' competing claims on merit. Otherwise, he stood to suffer grave injustice,
Further in Alton Homes Limited & another v Davis Nathan Chelogoi & 5 others Court of Appeal held
"decisions reached in breach of the rules of natural justice are liable to be set aside as of right."
According to the applicant, this is a suit where there was blatant breach of the rules of natural justice, the Orders sought ought to issue.
Respondents Submissions
The respondents argue that the governing provision on stay of execution n is Order 42 Rule 6(2) of the Civil Procedure Rules which provides:
"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 such decree has been given by the applicant. "
These three conditions are mandatory and conjunctive. The respondent relies on Butt v Rent Restriction Tribunal [1982) 1 KLR 417 where the Court of Appeal held:
"The power of the court to grant or refuse an application for a stay of execution is discretionary. The discretion should be exercised in such a way as not to prevent an appeal... but the court must also consider the rights of the successful litigant. "
The successful litigant is entitled to enjoy the fruits of judgment,
On whether substantial loss has been demonstrated the respondent argues that the Applicant bears the burden. The respondent refers to the case of Kenya Shell Limited v Benjamin Karuga Kibiru & Another [1986] eKLR Platt JA held:
"It is usually a good rule to see if Order 41 rule 4 (now Order 42 rule 6) 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.”
Further, Gachuhi JA stated:
"Substantial loss is what has to be prevented... it is the cornerstone of both jurisdictions for granting stay.
The 9th Plaintiff merely alleges that demolition will cause loss. That is not substantial loss within the meaning of the law. The Court already declared him a trespasser. A trespasser cannot claim equitable protection against execution of a lawful decree,
The respondent has come to court with unreasonable delay since Judgment was delivered on 23rd July 2025. The Decree granted ninety (90) days stay and that execution only commenced after lapse of that period. The present application has been brought months after delivery of judgment and after lapse of compliance period. The respondent cites the case of Utalii Transport Company Limited & 3 Others v NIC Bank Limited & Another [20141 eKLR Gikonyo J stated:
"Inordinate delay is delay that is not excusable... justice delayed is justice denied. "
The respondent contends that the Applicant offers no plausible explanation for delay. He was represented by counsel up to judgment. Silence for months, then urgency at demolition stage, is indolence and not diligence. Lastly that the respondent contends that the applicant has not offered security for due performance which is fatal. He cites the case of Arun C Sharma v Ashana Raikundalia t/a Rairundalia & Co Advocates & 2 Others [2014] eKLR. The Court held:
"The purpose of security under Order 42 rule 6 is to guarantee the due performance of such decree or order as may ultimately be binding on the applicant."
Failure to offer security disentitles the Applicant to stay.
The respondent argues that the court is functus officio. The Judgment conclusively determined ownership and possession.
In Telkom Kenya Limited v John Ochanda (Suing on his own behalf and on behalf of 996 Former Employees of Tellcom Kenya Limited) [2014] eKLR. The Court of Appeal stated:
"Functus officio is an enduring principle of law that prevents the re-opening of a matter before a court that rendered the final decision thereon”
The Court cannot sit on appeal over its own final decree under the guise of stay where no competent appeal exists.
The respondent in conclusion, the respondent argues that rights of the successful litigant must be granted. He refers to the case of Samvir Trustee Limited v Guardian Bank Limited [2007] eKLR. The Court stated:
"The Court must balance the interests of the applicant with those of the respondent who is entitled to enjoy the fruits of his judgment. "The Defendants have been kept out of possession since 2020.
Mesne profits were awarded. Further delay compounds injustice.
The application is an abuse of process as the applicant was served personally, was represented, filed no defence, filed no submissions, did not appeal, did not seek review and only moved court after warrants issued.
The respondent cites the case of Muchanga investment ltd v Safari’s Unlimited [Africa] Ltd and 2 others [2009] eKLR
The court of appeal defined abuse of process as
“Using the process of the court in a manner significantly different from its ordinary and proper use”
This application is precisely that.
I have considered the application replying affidavit and oral submissions and so find that on the issue of stay of execution pending appeal, this court finds that order 42 of the Civil Procedure Rules does not apply in this case because the applicant has not filed an appeal but an application to set aside the judgment. The prayer for stay pending appeal is superfluous and cannot be allowed as there is no appeal.
Stay of execution pending appeal is based on Order 42 Rule 6 of the Civil Procedure Rules, which establishes that an appeal does not automatically stay the execution of a decree or order. To obtain a stay, the applicant must satisfy the court that substantial loss may result if the order is executed, that the application was made without unreasonable delay, and that security for the due performance of the decree has been provided. The rule provides as follows:-
The principles for granting stay of execution are provided for under Order 42 rule 6 (1) of the Civil Procedure Rules as follows:
“No appeal or a 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 an application being made, to consider such application and to make such orders thereon as may to it seem just, 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 the orders set aside.”
Order 42, rule 6 (2) states:
“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 Hamisi Juma Mbaya v Amakecho Mbaya [2018]eKLR it was held:-
“The appellants need to satisfy the Court on the following conditions before they can be granted the stay orders:
1. Substantial loss may result to the applicant unless the order is made.
2. The application has been made without unreasonable delay, and
3. 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 by the applicant.”
The applicants prayer for stay of execution pending appeal is based on a misapprehension of the law because the applicant has not filed an appeal but an application to set aside a judgment and therefore the court cannot grant an order of stay pending a non-existent appeal.
the applicant was not a party to the suit and was not aware of the proceedings. The applicant is Ahmad Said Karama whereas the 9th plaintiff was Said Karama and they are the different persons. Under the doctrine of judicial precedent and stare decisis, I’m bound to follow the decision of the court of appeal in The Court of Appeal in the case of Alton Homes Limited & another v Davis Nathan Chelogoi & 5 others where it was held:-
"It is not in doubt that the right to be heard is a valued right and which is enshrined in our Constitution. This right was not observed herein because for reasons not made clear to this court, the 2nd defendant failed to bring on board the 1st interested party whom he sold his suit property to thus orders were issued by this court which Orders have adversely affected the 1st interested party. The Constitution of Kenya is very clear on the right to protection of one's property and the said property cannot be arbitrarily taken away from such an owner without being heard or without being accorded an opportunity to ventilate his case."
The right to be heard cannot be wished away as it is a cardinal human right and therefore the applicant ought to have been heard before the house he was occupying was taken away through a decision of this court.
On the other hand, the the respondent has not controverted the allegation that the applicant is in occupation of the house on the suit land and was not a party in the suit. I do find that the applicant should not be condemned unheard as this would be contrary to Article 50 of the Constitution of Kenya 2010.
I do set aside the judgment delivered on 23.7.2025. The matter to be heard denovo. The applicant is enjoined as the 10th defendant in the counter claim.