RULING
1. By a Notice of Motion dated 22nd September 2025, Newman Peter Mwangombe and Lenadi Salim Msamanga (the Appellants) pray for orders as follows:
a) Spent;
b) That the Court be pleased to grant a stay of execution of the Chief Magistrates Court Judgment delivered on 12th August, 2025 pending the hearing and determination of this Appeal; and
c) That the 1st Respondent be restrained by an order of injunction from evicting or in any way from interfering with the 2nd Appellant’s possession of the Swahili House on Plot No. 622/I/MN located at Kisauni pending the hearing and determination of this Appeal.
2. The application is supported by an Affidavit sworn by the 1st Appellant and is premised on some eight (8) grounds listed as follows:
i. That the subject of the Appeal is a House without land on Plot No. 622/I/MN Kisauni;
ii. That the Chief Magistrates Court has given orders of eviction and mesne profits against the Appellants herein;
iii. That the 1st and 2nd Appellants were innocent purchasers for value of all that Swahili House on Plot No. 622/I/MN without notice;
iv. That at the time of the purchase the 2nd Respondent who was the Vendor was in possession of the house;
v. That the house without land has no title and the Appellants were the first in time to purchase the same;
vi. That the 1st Appellant carried all due diligence before purchase of the said house and even evicted the 2nd Respondent vide a Court order;
vii. That the 1st Respondent has never taken possession of the subject house and she is guilty of indolence and laches; and
viii. That if the eviction proceeds the 2nd Appellant shall suffer irreparably since he is an innocent purchaser for value and it is his source of livelihood.
3. John Changilwa Kidake (the 3rd Respondent) is opposed to the application. In his Replying Affidavit sworn on 7th November 2025, the 3rd Respondent avers that the 2nd Respondent filed a suit against himself alleging that the house on Plot No. 622/44/1/MN was matrimonial property in Mombasa HCCC No. 390 of 2006 wherein the Court ruled that it had no jurisdiction to deal with the matter.
4. The 3rd Respondent asserts that on 6th November 2008, he entered into a sale agreement with the 1st Respondent for the sale of the house without land at a cost of Kshs. 900,000/=. It is his case that on 5th May 2010, he proceeded to issue a notice to all the tenants in the house to vacate the same.
5. I have carefully perused the Applicants’ application as well as the 3rd Respondent’s response thereto. I have similarly perused and considered the submissions placed before the Court by the Learned Advocates representing the parties.
6. By their application before the Court, the Appellants have urged the Court to issue an order staying execution of the Judgment delivered on 12th August 2025 in Mombasa CMCC No. 1366 of 2010. In addition, the Appellants pray for an order restraining the 1st Respondent from evicting or in any manner whatsoever interfering with the 2nd Appellant’s possession of the Swahili house erected on Plot No. 622/1/MN located at Kisauni within Mombasa.
7. It is the Appellants’ case that they were innocent purchasers for value of the said house and that if eviction proceeds as per the orders of the Chief Magistrates Court, they stand to suffer irreparably and be deprived of their source of livelihood.
8. On the other hand, the 3rd Respondent is opposed to the application asserting that he did purchase the same from the 1st Respondent on 6th November 2008 at a consideration of Kshs. 900,000/=. It is the 3rd Respondent’s case that the 1st Appellant entered into a sale agreement for the said property with the 2nd Respondent without carrying out any due diligence.
9. In matters of stay of execution, Order 42 Rule 6 of the Civil Procedure Rules 2010 provides as follows:
“(1) No appeal or second appeal shall operate as a stay of execution or proceeding 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 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.”
10. As was stated in RWW –vs- EKW (2019) eKLR:
“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 success of a litigant who should not be deprived of the fruits of his/her judgment. The court is also called upon to ensure that no party suffers prejudice that cannot be compensated by an award of costs.”
11. In the matter herein it is apparent that if an order of stay of execution is not granted, the Appellants stand to be evicted from the subject matter of the Appeal. Accordingly, I am satisfied that on order to preserve the status quo pending the hearing of the Appeal ought to issue.
12. In the premises, I am satisfied that there is merit in the Motion dated 22nd September 2025 and I hereby allow the same in terms of prayers (b) and (c) thereof.
13. The costs of the application shall be in the Appeal.
Ruling dated, signed and delivered in open court and virtually at Mombasa this 17th day of June, 2026.
J.O. OLOLA
JUDGE
In the presence of:
a) Ms. Firdaus Court Assistant.
b) Mr. Kenzi Advocate for the Appellants
c) Ms. Sidinyu holding brief for Katu Advocate for the 3rd Respondents