(In respect to the Notice of Motion dated 19th November 2024 brought under the Provisions of Order 42 rule 6 of the Civil Procedure Rules, sections 1A, 3A & 63 of the Civil Procedure Act, article 159 of the Constitution and all enabling provisions of the law).
Introduction.
1. The motion under consideration is dated 19th November 2024 by the Plaintiff herein seeking extension of the order of stay of execution pending hearing and determination of the appeal filed before the Court of Appeal. The Plaintiff too invites the court to make such other or alternative orders as it would deem fit.
2. The Plaintiff/Applicant avers that this court gave a judgement in this matter on 26th September 2024 cancelling its title over the parcel of land L.R No. Ngong/Ngong/528 and vesting it in the County Government of Kajiado. In rendering its judgement, the court gave a stay of execution for 60 days pending filing of the formal application. The application under consideration was filed before the expiry of 60 days.
3. The Plaintiff/Applicant pleads for extension of the stay of execution orders to avoid the risk of execution of the court’s decree before the appeal is heard and determined on the premises that it stands to suffer substantial loss. The Applicant asserts that it runs institutions including schools and a church on the suit property.
4. The application is further supported by the affidavit of Samuel Gatheru Kanyoro, the property Officer of the Plaintiff sworn on 19th November 2024. The deponent reiterates the grounds on the face of the application. He deposes that the Applicant has extensive infrastructural developments on the land including schools and a church which would be put in jeopardy if the title changes hands and a new proprietor takes possession.
5. The deponent opines that the cancellation of the Applicant’s title and vesting of the same in the County Government of Kajiado would expose the land to alienation causing the Applicant substantial loss by rendering the appeal nugatory. The Applicant further argues that it has an arguable appeal on weighty grounds as demonstrated in the attached draft memorandum of appeal. The deponent affirms that the Applicant is ready to comply with such terms as the court may deem fit to impose.
Responses by the Defendants and the Interested Party
6. The Plaintiff’s application is opposed by the Defendants and the Interested Party vide the replying affidavit of Jacob Wangola and Leina Mpoke, respectively.
7. In a nutshell the Defendants and the Interested Party terms the application by the Plaintiff unmeritorious, an afterthought and an abuse of the process of court aimed at frustrating execution of the judgement of this court while the Plaintiff has not taken steps to prosecute its appeal.
8. In its further and supplementary affidavits, the Applicant asserts that it has taken steps to prosecute the appeal as evidenced by the fact that the Court of Appeal has already given directions on the mode of prosecution of the appeal. The application for stay is therefore for the purpose of securing the suit property to ensure that the appeal is not rendered an academic exercise.
Issues for determination.
9. The sole issue for determination in this case is whether the Plaintiff’s application meets the threshold for the grant of order of stay of execution pending appeal.
Determination.
10. The threshold for the grant of an order of stay of execution pending appeal is anchored under Order 42 rule 6 of the Civil Procedure Rules, which provides that;
“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 may ultimately be binding in him has been given by the Applicant.”
11. In this case, the Applicant is fearful that execution of the decree by of cancellation of the title to the suit property and the vesting the property in the County Government of Kajiado will result in substantial loss in view of the extensive infrastructural developments on the suit property including schools.
12. Indeed, the judgement of this court directed the rectification of the register of the suit property by cancellation of all entries showing the Plaintiff as the proprietor and the amendment of the register to reflect the registered owner of the suit property as the County Government of Kajiado.
13. In the case of Silverstein -vs- Chesoni (2002) eKLR 867, the court emphasized that;
“The issue of substantial loss is the corner stone of an application for stay….. the court must be satisfied the loss is not just any loss, but one that is substantial and which cannot be compensated by damages.”
14. In RWW -versus- EKW (2019) KEHC 6523 (KLR), the court discussed the purpose of an order of stay of execution, stating that;
“The purpose of an application for stay of execution pending an appeal is to preserve the subject matter in dispute so that the rights of the appellant who is exercising the undoubted right of appeal are safeguarded and the appeal, if successful, is not rendered nugatory. However, in doing so, the court should weigh this right against the right of a successful litigant who should not be deprived of the fruits of his or her judgement. The court must also ensure that no party suffers prejudice that cannot be compensated by an award of costs.”
15. In the case of Butt -vs- Rent Restriction Tribunal (1979) KECA 22 (KLR), the court of Appeal expressed the view that;
“It is 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…..”
16. A cancellation of the title and rectification of the register to reflect the County Government of Kajiado as the proprietor will interfere with the running of the schools and the other developments on the suit property. Reversing that process, if the appeal were successful, considering that the land will have converted into public land, will be a monumental task. The court is persuaded that the Applicant herein has indeed demonstrated that substantial loss may result to it unless the order of stay of execution is made.
17. The application by the Plaintiff was filed before the expiry of the 60 days granted by the court. There was no inordinate delay on the part of Applicant.
18. On the issue of security, the land itself serves as the security. However, to avoid any dealings that may be prejudicial, the court directs that an inhibition be registered against the title of the suit property, to remain in force until the hearing and determination of the appeal by the Plaintiff before the Court of Appeal.
19. The court makes no orders as to costs.
Final disposition:
20. The final disposition is that;
i. An order of stay of execution be and is hereby issued staying execution of the decree issued herein pending hearing and determination of the appeal before the Court of Appeal.
ii. An inhibition be registered against the title of the suit property forthwith to remain in place pending hearing and determination of the appeal before the Court of Appeal.
iii. Each party shall bear its own costs.
It is so ordered.
Dated, Signed and Delivered Virtually this 21st Day of May, 2026.
M.D. MWANGI
JUDGE
In the virtual presence of:
Mr. Mbigi Njuguna for the Plaintiff/Applicant
N/A by the Defendants and the Interested Party
Court Assistant: Alex
M.D. MWANGI
JUDGE
| RULING ELC/239/2017 2 |