(1) This ruling is on the notice of motion dated 5-3-2026. The motion which is by the Plaintiff is brought under Order 42 rule 6(1) and (2) of the Civil Procedure Rules, Sections 1A, 1B and 3A of the Civil Procedure Act and all enabling provisions of the law.
It seeks two residual orders which are as follows.
3. That the Court be pleased to grant a stay of execution of the order granted by the Court on 24-2-2026 by which the Plaintiff was directed to cease all interference with land parcel No. Loc.6/Muthithi/1920 pending the hearing and determination of the intended appeal to the Court of Appeal.
4. That alternatively, the Court be pleased to order status quo over the suit land as it was prior to the ruling of the Court on 24-2-2026 pending the hearing and determination of the intended appeal.
5. That the costs be provided for.
(2) The motion is based on nine (9) grounds and is supported by an affidavit of the Plaintiff dated 5-3-2026. The gist of the grounds and the affidavit is as follows. Firstly on 24-2-2026 this court allowed the Defendant’s applications dated 24-7-2025 and 1-8-2025 allowing the prayer for injunction with costs. Secondly, the Plaintiff has been the sole registered owner of the suit land and has been in actual possession since he purchased it from one James Nduati Njogu. He has extensively developed the land believing that he has a good title free from any lawful claim. He has commenced the process of appealing against the ruling of the Court which mandated that he ceases interference with the said land and the takeover by the Defendant. Unless the orders sought are granted, the Defendant will proceed to evict the Plaintiff and waste his investments on the land and render the intended appeal nugatory. This will occasion him irreparable damage. Thirdly, the appeal has overwhelming chances of success because the Defendant concealed to the Court that there was another case being Kigumo SPMCC No.92 of 2012 through which the Plaintiff obtained title to the suit land. Fourthly, the Plaintiff had annexed a title deed for the suit land issued on 29-3-2021 in reply to the application dated 24-7-2025. If this application is not allowed, the Plaintiff will have been evicted from the suit land yet he is the registered owner thereof. Such possession dates back to the year 2021 when the previous owner James Nduati Njogu handed over possession to the Plaintiff.
(3) The motion is opposed by the Defendant in an affidavit dated April 2026 in which he replies as follows. One, the Plaintiff obtained a monetary decree in this case where the court found that he was only entitled to Kshs. 200,000/=. Two, the Plaintiff was not awarded any land and any title in his name was obtained fraudulently. Three, despite the order of 24-2-2026 the Plaintiff has continued to deny it with impunity by entering the suit land to construct thereon. His continued occupation of the suit land is unlawful and in contempt of lawful court orders. Finally, his application for stay ought to be dismissed as it has no legal basis.
(4) Counsel for the parties filed written submissions dated 17-4-2026 and 5-5-2026. The issues identified are as follows.
(a) Whether there is an appeal filed, and if so , whether it will be rendered nugatory by the execution of the order of this court.
(b) Whether substantial loss may result to the applicant unless the order of stay is made.
(c) Whether the application herein has been made without unreasonable delay.
(d) Whether the Applicant has offered security for the performance of the decree in the event of the intended appeal not succeeding.
(e) Is the appeal arguable.
(f) Prejudice.
(5) I have carefully considered the motion in its entirety including the grounds, the supporting affidavit, the replying affidavit, the written submissions, the law cited therein and the issues framed by learned counsel for the Plaintiff. Before I make a finding on the issues raised by the learned counsel for the parties I wish to make one clarification. The replying affidavit by the Plaintiff dated 21-8-2025 did not have any single annexure. It contains ten (10) paragraphs and there is no mention of even a single annexure. Paragraph 4 of the supporting affidavit dated 5-3-2026 is therefore not correct where it alleges that such annexure was filed.
(6) Since this is an application for stay of execution pending appeal, the applicable provision is Order 42 rule 6(2) of the Civil Procedure Rules. It provides as follows.
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 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 his has been given by the Applicant.”
From the above, there are only three (3) conditions prior to the grant of an order of stay of execution pending appeal.
(a) Whether the Applicant stands to suffer substantial loss if the order of stay is not allowed.
(b) Whether the motion has been filed without unreasonable delay.
(c) Whether the Applicant has given security for the due performance of the decree that may be passed against him.
(7) Looking at the first issue, I find that the Plaintiff does not stand to suffer substantial loss. The judgment of 19-4-2018 awarded the Plaintiff Kshs 200,000/= together with interest. Although I have seen a notice of appeal dated 17-5-2018, the Plaintiff has not pleaded in his affidavit or grounds what became of the appeal. The Plaintiff has also referred to Kigumo SPMCC No. 92 of 2012. I am not aware if this Kigumo suit was pleaded in this case and how it impacts on this case. It was upon the Plaintiff to have pleaded it at the trial rather than raise it here in an application for stay of execution. The Plaintiff has not endeavoured to file even one photograph in this case to demonstrate what he owns on the suit land. Again, it was upon him to prove that he has property on the suit land. I have seen a valuation report dated 15-7-2015 which shows that the suit land was vacant on 14-7-2015. Ultimately, there are many gaps in the current application which ought to have been filled and explained by the Plaintiff and which he has not explained.
(8) Regarding the second issue, I find that the current motion was filed without undue delay. The Plaintiff therefore satisfies the second condition.
(9) On the final issue, I am not sure if the Plaintiff ought to furnish security for the due performance of any decree that may be passed against him but since the suit land is immovable property, it is not really necessary for him to furnish any security because if he loses the appeal, the Defendant will still have the land which he is in occupation of already.
(10) Under Order 42 rule 6 (2) (a) and (b) of the Civil Procedure Rules all the three conditions are conjunctive and not disjunctive. The word ‘and’ after the word ‘made’ and after the word ‘delay’ in rule 6 (2) (a) means that failure to satisfy any one of the three conditions means that the application for stay fails.
(11) In conclusion and for the reasons already given, I find no merit in the motion dated 5-3-2026 which I dismiss with costs in the cause.
It is so ordered.
Dated, Signed and Delivered virtually at Murang’a this 6th day of July, 2026.
M.N. GICHERU JUDGE.
Delivered online in the presence of; -
Court Assistants – Antony/Jackline
Plaintiff’s Counsel – Mr. Njoroge
Defendant’s counsel – Mr. Mbuthia
It seeks two residual orders which are as follows.
3. That the Court be pleased to grant a stay of execution of the order granted by the Court on 24-2-2026 by which the Plaintiff was directed to cease all interference with land parcel No. Loc.6/Muthithi/1920 pending the hearing and determination of the intended appeal to the Court of Appeal.
4. That alternatively, the Court be pleased to order status quo over the suit land as it was prior to the ruling of the Court on 24-2-2026 pending the hearing and determination of the intended appeal.
5. That the costs be provided for.
(2) The motion is based on nine (9) grounds and is supported by an affidavit of the Plaintiff dated 5-3-2026. The gist of the grounds and the affidavit is as follows. Firstly on 24-2-2026 this court allowed the Defendant’s applications dated 24-7-2025 and 1-8-2025 allowing the prayer for injunction with costs. Secondly, the Plaintiff has been the sole registered owner of the suit land and has been in actual possession since he purchased it from one James Nduati Njogu. He has extensively developed the land believing that he has a good title free from any lawful claim. He has commenced the process of appealing against the ruling of the Court which mandated that he ceases interference with the said land and the takeover by the Defendant. Unless the orders sought are granted, the Defendant will proceed to evict the Plaintiff and waste his investments on the land and render the intended appeal nugatory. This will occasion him irreparable damage. Thirdly, the appeal has overwhelming chances of success because the Defendant concealed to the Court that there was another case being Kigumo SPMCC No.92 of 2012 through which the Plaintiff obtained title to the suit land. Fourthly, the Plaintiff had annexed a title deed for the suit land issued on 29-3-2021 in reply to the application dated 24-7-2025. If this application is not allowed, the Plaintiff will have been evicted from the suit land yet he is the registered owner thereof. Such possession dates back to the year 2021 when the previous owner James Nduati Njogu handed over possession to the Plaintiff.
(3) The motion is opposed by the Defendant in an affidavit dated April 2026 in which he replies as follows. One, the Plaintiff obtained a monetary decree in this case where the court found that he was only entitled to Kshs. 200,000/=. Two, the Plaintiff was not awarded any land and any title in his name was obtained fraudulently. Three, despite the order of 24-2-2026 the Plaintiff has continued to deny it with impunity by entering the suit land to construct thereon. His continued occupation of the suit land is unlawful and in contempt of lawful court orders. Finally, his application for stay ought to be dismissed as it has no legal basis.
(4) Counsel for the parties filed written submissions dated 17-4-2026 and 5-5-2026. The issues identified are as follows.
(a) Whether there is an appeal filed, and if so , whether it will be rendered nugatory by the execution of the order of this court.
(b) Whether substantial loss may result to the applicant unless the order of stay is made.
(c) Whether the application herein has been made without unreasonable delay.
(d) Whether the Applicant has offered security for the performance of the decree in the event of the intended appeal not succeeding.
(e) Is the appeal arguable.
(f) Prejudice.
(5) I have carefully considered the motion in its entirety including the grounds, the supporting affidavit, the replying affidavit, the written submissions, the law cited therein and the issues framed by learned counsel for the Plaintiff. Before I make a finding on the issues raised by the learned counsel for the parties I wish to make one clarification. The replying affidavit by the Plaintiff dated 21-8-2025 did not have any single annexure. It contains ten (10) paragraphs and there is no mention of even a single annexure. Paragraph 4 of the supporting affidavit dated 5-3-2026 is therefore not correct where it alleges that such annexure was filed.
(6) Since this is an application for stay of execution pending appeal, the applicable provision is Order 42 rule 6(2) of the Civil Procedure Rules. It provides as follows.
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 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 his has been given by the Applicant.”
From the above, there are only three (3) conditions prior to the grant of an order of stay of execution pending appeal.
(a) Whether the Applicant stands to suffer substantial loss if the order of stay is not allowed.
(b) Whether the motion has been filed without unreasonable delay.
(c) Whether the Applicant has given security for the due performance of the decree that may be passed against him.
(7) Looking at the first issue, I find that the Plaintiff does not stand to suffer substantial loss. The judgment of 19-4-2018 awarded the Plaintiff Kshs 200,000/= together with interest. Although I have seen a notice of appeal dated 17-5-2018, the Plaintiff has not pleaded in his affidavit or grounds what became of the appeal. The Plaintiff has also referred to Kigumo SPMCC No. 92 of 2012. I am not aware if this Kigumo suit was pleaded in this case and how it impacts on this case. It was upon the Plaintiff to have pleaded it at the trial rather than raise it here in an application for stay of execution. The Plaintiff has not endeavoured to file even one photograph in this case to demonstrate what he owns on the suit land. Again, it was upon him to prove that he has property on the suit land. I have seen a valuation report dated 15-7-2015 which shows that the suit land was vacant on 14-7-2015. Ultimately, there are many gaps in the current application which ought to have been filled and explained by the Plaintiff and which he has not explained.
(8) Regarding the second issue, I find that the current motion was filed without undue delay. The Plaintiff therefore satisfies the second condition.
(9) On the final issue, I am not sure if the Plaintiff ought to furnish security for the due performance of any decree that may be passed against him but since the suit land is immovable property, it is not really necessary for him to furnish any security because if he loses the appeal, the Defendant will still have the land which he is in occupation of already.
(10) Under Order 42 rule 6 (2) (a) and (b) of the Civil Procedure Rules all the three conditions are conjunctive and not disjunctive. The word ‘and’ after the word ‘made’ and after the word ‘delay’ in rule 6 (2) (a) means that failure to satisfy any one of the three conditions means that the application for stay fails.
(11) In conclusion and for the reasons already given, I find no merit in the motion dated 5-3-2026 which I dismiss with costs in the cause.
It is so ordered.
Dated, Signed and Delivered virtually at Murang’a this 6th day of July, 2026.
M.N. GICHERU JUDGE.
Delivered online in the presence of; -
Court Assistants – Antony/Jackline
Plaintiff’s Counsel – Mr. Njoroge
Defendant’s counsel – Mr. Mbuthia