The application before court is the Notice of Motion dated 5th November 2024 brought by the appellants pursuant to the provisions of section 3A Civil Procedure Act, Order 42 Rule 6 (1), (2) & (6) of the Civil Procedure Rules, 2010.
The application seeks for an order of temporary injunction restraining the Respondents, their agents, servants, employees or any other person acting on their behalf from interfering with the appellant/applicant’s occupation of land NO. KISUMU/CHIGA/315, (herein after known as the suit parcel of land) wherein their homes are situated and/or stay of execution of the decree in KSM CM MELC NO.54 of 2017 do issue pending hearing and determination of the appeal herein.
The application also seeks for an order that costs be provided for.
The application was supported by the averments in the Supporting Affidavit of OLIVER OLOO sworn on 5th November 2024.
The application was opposed vide the Grounds of Opposition dated 15th November 2024. The Respondents’ case is that the application does not demonstrate that the applicants will suffer substantial loss both in the context of the case and the meaning attached to the phrase in Order 42 Rule 6 (2) Civil Procedure Rules. That failure to demonstrate substantial loss is fatal. That the application was brought after undue delay. That the applicants have not explained the delay, that they admit that they failed to take advantage of 90 days given. That the applicants have not filed the record of appeal and that the delay is contemptuous of the court. It is the Respondents’ case that the applicant failed to provide security and that the appeal does not have chance of success.
The application was argued orally on 21/01/2025. It was submitted on behalf of the applicants that the judgement appealed against orders the applicants to vacate the suit land or be forcefully evicted. That the 2nd and 3rd appellants have their home on the suit land. That unless an order of a stay of execution is granted, their home is destined from destruction before the appeal is heard. Counsel submitted that the loss will be enormous and substantial. Counsel submitted further that the applicants are ready and willing to abide by any directions that the court may give on security. That the application had been brought without undue delay. Counsel relied on the provisions of sections 1A & 1B of the Civil Procedure Act and article 159 (2) (d) of the Constitution and the authorities contained in the list of authorities dated 20/11/2024.
On behalf of the Respondents, it was submitted that the applicants had not demonstrated that they will suffer substantial loss if the orders are not granted. That the application was brought after a delay of over 90 days.
That in the event that in the court grants the application, the court should include auctioneers’ fee and cost of eviction as part of the amount of the security.
I have considered the application, grounds of opposition and the submissions made.
The application seeks for an order of temporary injunction pending the hearing and the disposal of the appeal herein or in the alternative, an order of stay of execution of the judgement and decree of the trial court pending appeal. While a temporary injunction is meant to stop unlawful acts pending an event or for a given period, execution of a decree is a lawful process of implementing a judgement, decree, order or other decision of a court.
A reading of the application shows that what the applicants are apprehensive about is the execution of the judgement and decree passed by the trial court and which is the subject of the appeal herein.
While both reliefs of temporary injunction and stay of execution are available to an appellant, in the present case the applicable relief is stay of execution of the decree.
The Application is brought pursuant to, inter alia, the provisions of Order 42 Rule 6(1) Civil Procedure Rules 2021. The same provides that:
“ 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 of execution 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.”
The grounds for grant of orders of stay of execution of decree/judgement are provided for in Order 42 Rule 6(2) of the Civil Procedure Rules 2010 as follows:
“No order for stay of execution may be made under sub rule (1) unless-
- 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
- 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.”
The first ground is that the court must be satisfied that the Applicant will suffer substantial loss if the order of stay of execution is not granted. In Dr. Daniel Chebutuk Rotich –vs- Morgan Kimaset Chebutuk Nakuru H.C.C.C No.368 of 2001 substantial loss was said to be
“Substantial loss is a relative term and more often than not can be assessed by the totality of the consequences which an Applicant is likely to suffer if stay of execution is not granted and the Applicant is therefore forced to pay the decretal sum.”
The burden of proof lies with the Applicant to prove that substantial loss will result to him if the order sought is not granted. In the case of Charles Wahome Gethi vs Angela Wairimu Gethi [2008]eKLR the Court of Appeal held-
“...it is not enough for the Applicants to say that they live or reside on the suit land and that they will suffer substantial loss. The Applicants must go further and show the substantial loss that the applicants stand to suffer if the Respondent executes the decree in this suit against them.”
In the case of Shell Kenya Ltd vs Benjamin Karuga Kibiru & Another [1986] eKLR 410 the court stated that
“if it is shown that execution would render a proposed appeal nugatory then a stay can properly be granted.”
In the present case it is not denied that the Respondents are in the process of executing the decree. Counsel for the Respondent submitted that the decree which is due for execution was obtained after a lawful process and that costs of the execution and auctioneer’s fee should be included in the amount of the security if the court allows the application.
It was submitted that the 2nd and 3rd applicants have their homes on the suit land where they reside and where they have interred the remains of their relatives. These are matters to be canvassed in the in the appeal. However, it is not denied that the execution of the decree entails eviction of the applicants from the land. If this happens it will no doubt result in the destruction of their homes before the appeal is heard. And should the appeal be decided in their favor, it will have been nugatory.
I find that the applicants have demonstrated that they will suffer substantial loss if the orders sought are not granted. The applicants have undertaken to abide by the terms of security as the court may direct.
The applicants have also under taken to abide by any directions to be given by the court on the issue of security.
While minding the right of the Respondent to enjoy the fruit of his judgement, the court has an obligation to ensure that the appeal is not rendered nugatory.
I find that the applicant has merit and hereby allow it in the following terms;
- An order of stay of execution of the judgement and decree in KSM CM MELC CASE NO. 54 OF 2017 is hereby granted pending hearing and determination of the appeal on condition that the applicant deposits a sum of Kshs 150, 000/-( one hundred fifty thousand only) in an interest earning account in the joint names of Counsel for the applicant and Counsel for the Respondent within 45 days hereof, in default of which the order of stay of execution hereby granted shall lapse.
- Costs of the application to the Respondent.
Orders accordingly.
Ruling, dated and signed at Kisumu, read virtually this 6th day of June, 2025 through Microsoft Teams Online Application.
E. ASATI,
JUDGE.
In the presence of:
Maureen: Court Assistant.
Ouma Njoga for the Appellants/Applicants.
Cheruiyot h/b for Juliet Dima for the Respondents.