I. Introduction
1. This Honourable Court was tasked to make a determination unto the Notice of Motion application dated 8th July 2025 by Patrick Hawkes Karanja Kinyanjui, the Appellant/Applicant, herein. It was filed through the Law firm of Messrs. Okello Kinyanjui & Company LLP under certificate of urgency. The Learned Counsel premised the application under the inherent jurisdiction of this court and all the other enabling provisions of the law.
2. Upon service, the application was opposed through a Replying Affidavit filed by the Interested Party herein and sworn by his Learned Counsel on record Dr. Said Juma Chitembwe herein.
II. The case of the Appellant/Applicant
3. The Applicant sought for the following orders:-
a) Spent.
b) Spent.
c) That this Honourable Court be pleased to order a stay pending appeal of such part of the ruling of this Honourable Court delivered on the 17th March 2025 as decides;
d) That parties to take the dispute to an appropriate forum where issues touching on the legitimate owner of land parcel no Kwale/Galu Kinondo/416 can be determined with finality
e) That the fact that such proceedings in [a] above would have been filled pursuant to the courts direction shall not take away any defence a party may have against the same
f) That pending the determination in [a] an order of prohibition to prohibit the Respondent, the land registrar kwale from registering any transactions with respect to Kwale/Galu Kinondo/416 hereby issues until the determination in [a] above
g) That each party to bear its own costs.
h) That the costs of and incidental to this application be provided.
4. The application was premised on the grounds, testimonial facts and the averment made under the supporting affidavit sworn by PATRICK HAWKES KARANJA KINYANJUI dated 10th June 2025. He averred that:-
a). The averments from the supporting affidavit raised adequate grounds listed in paragraph 4 above herein.
b). The deponent further stated that there was sufficient cause for the court to issue a stay of the decree pending the appeal at the court of appeal.
c). Also that in the event the stay pending appeal is not granted in terms of the application, the Appellant would suffer substantial loss for the following reasons:
i. The Applicant could not place a caution/caveat on his land to protect his interest on his land;
ii. The Applicant could not pay his land rates thus jeopardizing his ownership of his land;
iii. The Applicant could not transact on his own land;
iv. The Appellant's appeal would be rendered totally nugatory;
v. The part of the decision of this Honourable court appealed against was erroneous and should be tested on appeal.
III. The responses by the Interested Party
5. The Interested Party filed a Replying Affidavit sworn by Said Juma Chitembwe an Advocate of the High Court of Kenya practising in the Law firm of Messrs. Osundwa & Company Advocates in conduct of this matter on behalf of the Interested Party. He averred as follows that:-
a) the instant application was intended to delay the hearing of the Civil Case of:- “ELC NO. E050 OF 2025 Swalehe Salimu Kabila – Versus - Patrick Hawkes Karanja Kinyanjui and Land Registrar, Kwale County”.
b) this Honourable Court made its decision, vide Judgement delivered on 17th March, 2025. That the totality of the Judgement was that the Applicant used the wrong procedure (Judicial Review) to seek ownership of the land yet the issues in dispute cannot be determined by way of Judicial Review.
c) It was stated that the original records at the Land Registry at Kwale never showed that the Applicant was the owner of the land and his claim that he could not use his land was misplaced.
d) The Court in essence advised parties to seek redress through a proper forum where each party would testify and the Court make its determination.
e) The Applicant was avoiding to defend case number Kwale Elc No. E050 OF 2025 which had been listed for directions on 15th September, 2025.
f) The Law firm of Messrs. Okello Kinyanjui had been on record for the Applicant.
g) When summons were obtained they were served on behalf of their client but they declined service as stated in Mr. Ousa Okello's Affidavit however Mr. Okello declined service and the Applicant was served by way of registered post using the address he indicated while prosecuting this matter. The address is 121-0091 Kikuyu.
h) The Kwale Land Registrar filed his Defence and documents showing that the land dispute belonged to the Interested Party's late father Salimu Abdalla Mwachatamu.
i) The best forum to determine the dispute was this Honourable Court as the Judicial Review case could not determine ownership.
j) The Honourable Justice Addraya Dena held that the Land Registrar ought to have summoned the Applicant before issuing a Title Deed to the Interested Party who had undergone the Succession process. This does not make the Applicant is the owner of the suit land.
k) The Judicial Review Case was heard by way of Written Submissions and parties were not allowed to highlight the submissions. If indeed the Applicant was serious about his Appeal he would have filed his Record of Appeal by now.
l) The purported draft grounds of Appeal was just meant to hoodwink this Honourable Court that the Applicant was pursuing an Appeal. The Interested Party was sick having suffered stroke and this Honourable Court requested for a medical report and the same was done by Dr. Ndegwa Wanjiku on 14th August, 2024 and was part of the record.
m) The Applicant was now aware of case number Kwale ELC NO. E050 OF 2025 but had refused to enter appearance or file Defence. Further that having registered a caveat and in view of the Court Judgement advising parties to seek redress elsewhere, there was nothing to stay in this file. The Interested Party could not sell the land and therefore there was no risk or danger to the Applicant.
n) After the Interested Party's title was cancelled, the records at the Kwale Land Registry reverted to the original owner, Salimu Abdalla Mwachatamu as per the recent searches provided by the Land registry. Lastly that Salimu Abdalla Mwachatamu is deceased and cannot sell the suit land. The Applicant should defend the Interested Party's case.
o) Allowing the application would be tantamount to staying the Interested Party's case thereby throwing the Interested Party at the Applicant's mercy yet the Applicant seemed to have abandoned the alleged appeal.
p) From 25th March, 2025 when the Notice of Appeal was alleged to have been filed, its over four (4) months now and there is no action.
q) The court was urged to dismiss the application.
IV. Submissions
6. On 23rd October 2025 while Learned Counsels for the applicant and the Interested Party were present in Court, they were directed to have the application dated 8th July 2025 disposed of by way of written submissions.
7. Pursuant to that the parties obliged and the Honourable Court delivered its Ruling on 20th April, 2026 accordingly.
A. The Written Submissions by the Appellant/Applicant
8. The Appellant/Applicant filed their written submissions dated 28th October 2025 though the Law firm of Messrs. Okello Kinyanjui & Co Advocates. Mr. Okello Advocate submitted that the application being a judicial review, the provisions of the Civil Procedure Act, Cap. 21 and Rules do not apply save, of course for the provisions of Order 53 of the Civil Procedure Rules, 2010 and the inherent jurisdiction of this Honourable court.
9. Reference was made to the principles of the grant of a stay pending an appeal as was settled in the case of “Butt – Versus - Rent Restriction Tribunal [1979] eKLR”. That the principles are as follows: -
“It is in 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 way so as not prevent an appeal, if successful from being nugatory”
In short, the Learned Counsel argued that the appeal ought to be triable, it must not be rendered nugatory and lastly the Appellant must prove substantial loss.
10. It was submitted the matters that would be appealed against were that the Learned Judge erred in law and in fact in granting orders that had not been sought by any party, to wit:
a. That parties to take the dispute to an appropriate forum where issues touching on the legitimate owner of Land Parcel No. Kwale/Galu Kinondo/416 can be determined with finality.
b. The fact that such proceedings in (a) above would have been filed pursuant to the court’s direction shall not take away any defence a party may have against the same.
c. That pending the determination in (a) an order of prohibition to prohibit the respondent, the Land Registrar Kwale from registering any transactions with respect to Kwale/Galu Kinondo/416 hereby issues until the determination in (a) above.
11. In granting orders that had not been sought, the Learned Judge erred in law and in fact by failing to follow the principle that had been propounded by the Court of Appeal in the case of:- “Kenya National Examination Council – Versus - the Republic, ex - parte Geoffrey Gathenji Njoroge and 9 others [1997] eKLR”, thus violating the first principles of stare decisis.
12. The Learned Counsel averred that the Learned Judge erred in law and in fact in finding that there was a viable dispute to be determined between the Appellant/Applicant, who is the only title holder and the 1st Respondent, Swalehe Salimu Kabila, who holds no title on the said land. The court was also referred to ground of appeal no. 3 which raised the issue that the learned judge found that there was a viable dispute to be determined between the Appellant, who is the only title holder and the 1st Respondent, Swalehe Salimu Kabila, who holds no title on the said land. It was submitted that once the judge issued an order of certiorari quashing the title of the interested party, there was no longer a dispute as to who was the title holder.
13. It was submitted that the court had made a finding on the issue of fraud and therefore having found as it did, this Honourable court was then estopped from directing the parties go to what it described as an “appropriate forum” because having heard and finally determined on the issue of fraud, i.e., that it was not proved to the required standard, the issue of fraud, which was the hallmark of the proceedings before this Honourable court, and which would be the cornerstone of a proceeding in what this Honourable court described as an “appropriate forum” would be res judicata before any other forum other than a higher court. The court was urged to allow the application as prayed.
B. The Written Submissions by the Interested Party.
14. The Interested Party filed their written submissions dated 3rd November, 2025 through the Law firm of Messrs. Osundwa & Company Advocates. Dr. Chitembwe Advocate commenced his submissions by stating that the Appellant/Applicant initially through the Judicial Review suit only sued the Land Registrar, Kwale. He sought for the following orders:-
i. The Ex – Parte Applicant, Patrick Hawkes Karanja Kinyanjui, the owner of land Reference No. Kwale/Galu Kinondo/416, be granted an order of Certiorari to bring to this Court for purposes of being quashed the decision of the Respondent, the Land Registrar, Kwale, made on the 9th November, 2023 to register one Swalehe Salimu Kabila as the owner of the said Kwale/Galu Kinondo/416.
ii. The Ex – Parte Applicant, Patrick Hawkes Karanja Kinyanjui, the owner of land Reference No. Kwale/Galu Kinondo/416, be granted an order of Certiorari to bring to this Court for purposes of being quashed the title Deed for parcel No. Kwale/Galu Kinondo/416 to Swalehe Salimu Kabila.
iii. The Ex – Parte Applicant, Patrick Hawkes Karanja Kinyanjui, the owner of land Reference No. Kwale/Galu Kinondo/416, be granted an order of Prohibition to prohibit the Respondent, the Land Registrar, Kwale, from illegally registering or issuing the Title Deeds with respect to the parcel No. Kwale/Galu Kinondo/416 to Swalehe Salimu Kabila or any other person without the express concurrence of the legitimate owner of the land ie the Ex – Parte Applicant - Patrick Hawkes Karanja Kinyanjui.
15. Nonetheless, the Court in its wisedom directed that the Interested Party be served with the pleadings accordingly. The Applicant claimed to be the registered owner to the suit land. However, the Counsel contended that the Plot was registered in the names of Salim Abdalla Mwachatamu who was during the land adjudication. He was the father to the Interested Party. The Interested Party conducted an official search and filed a Succession Cause before the Khadhi’s Court at Msambweni. This was almost ten ( 10 ) years after the death of his father. The search showed the plot was still registered in his father’s names. He had been issued with a title deed on 6th January 1981. That the Interested Party completed his succession cause and was issued with a title deed through transmission on 9th November 2023.
16. The Counsel submitted that the court in its judgement rendered on 17th March 2025 held that the Land Registrar was wrong in issuing the title deed to the Interested Party without first hearing the Applicant. That the court did not however declare that the Applicant was the registered owner of the suit property, the court stated that the issue of ownership was to be determined after a full hearing and thus the reference to another forum.
17. According to the Learned Counsel, the issue of fraud arose with regards to the transfer of the suit property to the names of the Defendant at a time when a succession of the deceased registered owner was yet to take place. That therefore the intended appeal was only an afterthought and tactic intended in delaying the Civil Case of:- “KWALE ELC NO E050 of 2025 Swalehe Salimu Kabila - Versus - Patrick Hawkes Karanja Kinyanjui & Another”. That the court of appeal might not declare the Appellant as the owner of the suit property since records at the lands office do not even bear his names. Further that the Applicant knew that the Interested Party was partially paralysed after suffering a stroke and hence the efforts to frustrate the matter. It was stated that the appeal was not arguable as the court of appeal could not determine any issues of ownership since the same did not arise in the Judgement of this court.
18. On the allegation that the court granted orders that were not pleaded. The Learned Counsel submitted that the court issued directions as to the right forum to determine the issues raised. That the court did not make a finding as to the alleged fraud but stated that the same was to be dealt with by a proper court and so was the issue of ownership of the land. It was further submitted that the court issued orders that had been sought and the same were cancellation of the interested party’s title.
19. The Learned Counsel maintained that the appeal was not triable for reasons that the issues as raised were to be canvassed afresh in a court which could determine fraud and ownership and as such the application herein was not merited. It was lastly submitted that no substantial loss was to be suffered as there were prohibitory orders already issued against any registration, that the ground for substantial loss had thus not been met as was stated in several authorities as listed under paragraphs 14 and 15 of the said submissions being the case of:- “Kenya Shell Limited - Versus – Kibiru; Vishram Rarji Halai – Versus – Thornton & Turpin, Civil Application Patrick Hawkes Karanja KinyanjuiNo. Nbi, 15 of 1990, KLR, 365; and James Wangalwa & Another Versus Agnes Naliaka Cheseto [2012] eKLR”.
20. The Learned Counsel asserted that there was no substantial loss would be suffered by the Applicant. There was no Prohibitory orders against the registration of any instrument. The Appellant/Applicant could defend his case before the ELC. In the meantime, should his appeal become successful, then the decision from the Court of Appeal will prevail. The Interested Party was both elderly and sickly. He would like to testify before this Court and tender evidence on how he acquired the suit land.
21. In conclusion, the Interested Party held that the application lacked merit and hence asked the court to dismiss it with costs.
V. Analysis and Determination
22. This court has keenly considered the pleadings in form of the Notice of Motion application dated 8th July, 2025 by the Appellant/Applicant, the Reply by the Interested Party herein, the written submissions, the cited myriad of authorities, the relevant provisions of the Constitution of Kenya, 2010 and the Statutes.
23. In order to arrive at an informed, reasonable and just decision, I have framed the following three (3) salient issues for determination;
a) Whether the Appellant/Applicant through his application date 8th July, 2025 has satisfied the conditions set out under the provision of Order 42 Rule 6 of the Civil Procedure Rules, 2010 for Stay of Execution pending appeal before the Court of Appeal.
b) Whether the parties are entitled to the reliefs sought.
c) Who will bear the costs of the Notice of Motion application dated 8th July 2025?
ISSUE No. a). Whether the Appellant/Applicant through the Notice of Motion application dated 8th July, 2025 has satisfied the conditions set out under the provision of Order 42 Rule 6 of the Civil Procedure Rules, 2010 for stay of execution pending appeal.
24. Under this Sub – title the Honourable Court will be examining whether the Applicant should be granted orders Stay Execution or not. Legally speaking, stay of execution is governed by the provision of Order 42 Rules 1 & 2 and 6 ( 1 ) & (2) of the Civil Procedure Rules, 2010. The purpose and objective of the order for stay of execution is to preserve the substratum of the appeal in order to ensure that the appeal is not defeated. In the case of: “Consolidated Marine – Versus - Nampijja & Another, Civil App.No.93 of 1989 (Nairobi)”, the Court held that: -
“The purpose of the application for stay of execution pending appeal is to preserve the subject matter in dispute so that the right of the appellant who is exercising his undoubted right of appeal are safeguarded and the appeal if successful is not rendered nugatory”.
25. The Court of Appeal decision in “Chris Munga N. Bichange – Versus - Richard Nyagaka Tongi & 2 Others eKLR” the Learned Judges stated the principles to be applied in considering an application for stay of execution as thus;
“The law as regards applications for stay of execution, stay of proceedings or injunction is now well settled. The applicant who would succeed upon such an application must persuade the court on two limbs, which are first, that his appeal or intended appeal is arguable, that is to say it is not frivolous. Secondly, that if the application is not granted, the success of the appeal, were it to succeed, would be rendered nugatory. These two limbs must both be demonstrated and it would not be enough that only one is demonstrated”
26. In the case of:- “Mohamed Salim T/A Choice Butchery – Versus - Nasserpuria Memon Jamat (2013) eKLR”, the court stated that;
“That right of appeal must be balanced against an equally weighty right, that of the Plaintiff to enjoy the fruits of the Judgment delivered in his favour. There must be a just cause for depriving the Plaintiff of that right …………….”
27. The Court of Appeal in the case of:- “RWW – Versus - EKW (2019) eKLR” addressed itself on the issue of stay pending appeal as hereunder: -
“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.
Indeed, to grant or refuse an application for stay of execution pending appeal is discretionary. The Court when granting the stay however, must balance the interests of the Appellant with those of the Respondent.”
28. From the above provisions, an applicant for stay of execution of a decree or order pending appeal is obliged to satisfy the conditions set out under the provision of Order 42 Rule 6(2), aforementioned: namely:-
(a) that substantial loss may result to the applicant unless the order is made,
(b) that the application has been made without unreasonable delay, and
(c) that such security as the court orders for the due performance of such decree or order as may ultimately be binding on the applicant has been given.
29. The first ground to be established is whether substantial loss may result to the Applicant unless stay of execution is granted. What amounts to substantial loss was expressed by the Court of Appeal in the case of: “Mukuma – Versus - Abuoga (1988) KLR 645” where their Lordships stated that:-
“Substantial loss is what has to be prevented by preserving the status quo because such loss would render the Appeal nugatory.”
ISSUE No. b). Whether the parties are entitled to the reliefs sought.
30. Now applying these principles to the instant case. I have perused the impugned Judgement delivered by the court dated 17th March 2025 and noted the contents the orders issued verbatim as follows:-
a) That the Ex - Parte Applicant Patrick Hawkes Karanja Kinyanjui be granted an order of Certiorari to bring to this Honourable Court for purpose of being quashed the decision of the Respondent, the Land Registrar Kwale made on 9th November 2023 to registrar one Swalehe Salimu Kabila as owner of KWALE/GALU KINONDO/416
b) That the Ex - Parte Applicant Patrick Hawkes Karanja Kinyanjui be granted an order of Certiorari to bring into this Honourable court for purpose of being quashed the title deed for land parcel no KWALE/GALU KINONDO/416 to Swalehe Salimu Kabila
c) That parties to take dispute to an appropriate forum where issues touching on the legitimate owner of land parcel no KWALE/GALU KINONDO/416 can be determined with finality.
d) That the fact that such proceedings in [3] above would have been filed pursuant to the courts direction shall not take away any defence a party may have against the same.
e) That pending the determination in [3] an order of Prohibition to prohibit the Respondent, the Land Registrar Kwale from registration any transactions with respect to KWALE/GALU KINONDO/416 hereby issues until determination in [3] above.
f) That each party to bear its own costs.
31. As already indicated above, it is trite that the three (3) conditions for the grant of an order for stay of execution must be met simultaneously as they are conjunctive and not disjunctive. See the cases of:- “Board of Governors Dr. Aloo Gumbi Mixed Secondary School – Versus - EJA (Minor Suing thro' Next friend JANO) (Miscellaneous Application 118 of 2020) [2022] KEHC 11963 (KLR)”.
32. Primarily, it is critical to assess each one of these conditions separately. Essentially, in discussing the issue of substantial loss with reference to the instant application herein, a brief history of the dispute before the court is necessary. From the filed Notice of Motion application dated 9th April 2024 and which gave rise to the above orders in Paragraph 37, the Applicant alleged that he is the absolute and legal registered owner of the suit property KWALE/GALU KINONDO/416 with all its invisible rights, interest and title vested in him by law. He avers that he became registered as the proprietor on 24th April 1974 and was issued with a title deed the same day. This was after purchasing the property from Salim Abdalla Mwachatamu[deceased].
33. According to the Applicant, he procured a loan and the property was charged immediately after purchase of the property. Subsequently, the loan was successfully repaid in year 2016 paving way for discharge of the property. That he had all along been paying land rates but in the year 2023 upon conducting a search of the property, he established that the green card indicated that the Interested Party herein had become the registered owner of the suit property. He got aggrieved and decided to institute this Judicial review case. Thus, it is the Ex - Parte Applicants case that the suit property had been transferred to the Interested Party through unlawful and fraudulent means. Further, that that the registration of the Interested Party as the owner of the suit property was in contravention of the Applicants right to property as envisaged under the provision of Article 40 of the Constitution of Kenya 2010.
34. Ideally, the Ex – Parte Applicant applied to court and sought for orders of Prohibition to prohibit the Respondent the Land Registrar from illegally registering or issuing titles with regards to the suit property to anyone without the express concurrence of the legitimate owner and who is the Ex - Parte Applicant herein. The Applicant also sought for Prerogative writs of Certiorari under judicial review quashing the decision of the Land Registrar from registering the Interested Party as the owner of the suit property.
35. In opposing the Applicant’s case, the Land Registrar Kwale [Steve Mokaya] through an affidavit sworn on 11th October 2024 informed the court that the records at the lands office showed a green card opened under Section 79 of the Land Registration Act and the same had been used by the Ex - Parte applicant to charge the property. That however from their records, the deceased Salim Abdalla Mwachatamu had been issued with a Certificate of Title on 6th January 1981. That a succession case in “Msambweni Succession Cause No E331 of 2023 in the matter of Salim Abdalla Mwachatamu”, the suit property was vested in the names of the Interested Party herein and the land had resulted to transmission of the property to the Interested Party.
36. The Land Registrar maintained that while transferring the property to the Interested Party, he was simply carrying out his duties and was not part of any fraudulent dealings.
37. The Interested Party on the other hand stated that his deceased father was the registered owner of the suit property. That from copies of the register at the adjudication section, the land belonged to his late father. That he had held the land until sometime in the year 2023 when he suffered a stroke an d needed money, upon instructing his son to find a buyer, a site visit of the land was organised but on reaching there, the buyer and the interested party’s son were chased away by hired goons. That from the land registry, there is no documentation showing how the land was transferred to the applicant, that throughout the life of the deceased he had been using the land. The records at adjudication still show that the deceased is the owner of the suit property.
38. The Ex – Parte Applicant holds that the court through its Judgement granting the prerogative orders of “Certiorari” and “Prohibition” having established that the decision of the Land Registrar to register the suit property in the name of the Interested Party without first listening to the Applicant herein was against the rules of natural justice in particular the right to be heard. The Orders of prohibition were issued to preserve the suit property until a determination was made as to who the legitimate owner of the property was.
39. From the above analogy of what the Applicant had sought before the court and what the court in its wisdom ordered in its final Judgement, it is clear that the suit property as of now is preserved with the orders of prohibition granted. Indeed, there cannot be further dealings on the suit property until the contest as to legal ownership and proprietary rights over the suit property is determined by this Honourable Court. Having stated that, I discern that the notion that the Appellant/Applicant herein is bound to suffer any substantial loss as stipulated by law is therefore far-fetched and misplaced whatsoever. The pre – condition has not been demonstrated.
40. The next question would be whether the application has been made within a reasonable period of time. From the record, the Judgement in question was rendered on 17th March 2025 while the instant application for stay was made on 8th July 2025. Thus, the Honourable Court is satisfied that the application has been filed timeously.
41. On the last issue and which is security for costs. The purpose of security was explained in the case of “Arun C. Sharma – Versus - Ashana Raikundalia t/a Raikundalia & Co. Advocates & 2 Others [2014] eKLR” the court stated:-
“The purpose of the security needed under Order 42 is to guarantee the due performance of such decree or order as may ultimately be binding on the applicant. It is not to punish the judgment debtor…Civil process is quite different because in civil process the judgment is like a debt hence the applicants become and are judgment debtors in relation to the respondent. That is why any security given under Order 42 Rule 6 of the Civil Procedure Rules acts as security for the due performance of such decree or order as may ultimately be binding on the applicants. I presume the security must be one which can serve that purpose”.
42. The issue of security is discretionary and it is upon the court to determine the same. The Applicant has not given any proposal for the same.
43. This court has noted the Applicant’s argument that the court in its Judgement issued orders that had not been sought by either parties. I have carefully interrogated the contents of the Judgement vis a vis the issues arising from the application giving rise to the said Judgement. Unlike what is being propagated by the Applicant in his arguments, the court was very clear at Paragraph 72 of the Judgement in stating that it had not declared the Ex - Parte applicant as the legitimate owner of the suit property.
44. The orders being contested by the Ex - Parte Applicant were issued by the court were for the sole purpose of preserving the suit property pending the substantive hearing of the main contest between the parties herein and which is ownership of the suit property. In ordering that the parties herein ventilate further issues in the right forum, the court was clearly pointing out the fact that judicial review is for the sole purpose of examining the lawfulness of the transmission and registration of the suit property in the names of the interested party and not the legitimate ownership of the suit property. Infact, the issue of fraud was but an explicit statement by the court in questioning the whole transmission and registration process having taken place without hearing both parties but the court did not infer that the same was proved.
45. Having said so, it is my firm believe that the orders granted by my siter Lady Justice Dena in her Judgement were solid and necessary in the interest of justice. It is trite that right of appeal must be balanced against an equally weighty rigid right of the Plaintiff to enjoy the fruits of the Judgment delivered in his favour. In the case of “Samvir Trustee Limited – Versus - Guardian Bank Limited [2007] eKLR” the court stated:-
“The Court in considering whether to grant or refuse an application for stay is empowered to see whether there exist any special circumstances which can sway the discretion of the court in a particular manner. But the yardstick is for the court to balance or weigh the scales of justice by ensuring that an appeal is not rendered nugatory while at the same time ensuring that a successful party is not impeded from the enjoyment of the fruits of his judgment. It is a fundamental factor to bear in mind that a successful party is prima facie entitled to fruits of his judgment; hence the consequence of a judgment is that it has defined the rights of a party with definitive conclusion.”
46. In view of the foregoing the Honourable Court holds that the application by the Appellant/Applicant fails to adequately meet the required ingredients for granting Stay of Execution in accordance with the provision of Order 42 Rule 6 ( 1 ) and ( 2 ) of the Civil Procedure Rules, 2010.
ISSUE No. c). Who will bear the costs of the Notice of Motion application dated 8th July 2025?
47. It is trite that the issue of costs is at the discretion of Court. Costs the award granted to a party at the conclusion of the legal action and proceeding of any litigation. The proviso under the provisions of Section 27 (1) of the Civil Procedure Act, Cap. 21 holds that Costs follow events. By following the event, it means the outcome of the legal action or proceedings or the whole circumstances of the case where a party has won the case.
48. In the case of: “Reids Heweet & Company – Versus – Joseph AIR 1918 cal. 717 & Myres – Versus – Defries (1880) 5 Ex. D. 180, the House of the Lords noted:-
“The expression “Costs shall follow the events” means that the party who, on the whole succeeds in the action gets the general costs of the action, but where the action involves separate Issues, whether arising under different causes of action or under one cause of action, the word ‘event’ should be read distributive and the costs of any particular Issue should go to the party who succeeds upon it…..”
49. In the instant case, the Appelant/Applicant has failed to establish his case. Thus, the Interested Party is entitled to Costs for the dismissed Notice of Motion application thereof to be paid by the Applicant.
Conclusion and Disposition
50. I note that at the time of preparing this ruling, the grounds of appeal were yet to be presented before this court. I am not in any way suggesting that the same form a basis of granting stay pending appeal orders but having carefully considered the arguments in the pleadings giving rise to this ruling, I do not seem to find any arguable points of law. It is my considered view that the Applicant has not met the threshold of granting stay of execution pending appeal.
a) THAT the application dated 8th July 2025 lacks merit and hence it is hereby dismissed with costs.
b) THAT the costs to be granted to Interested Party to be borne by the Applicant herein.
IT IS ORDERED ACCORDINGLY.
RULING DELIVERED THROUGH THE MICRO – SOFT TEAMS VIRTUAL MEANS, SIGNED AND DATED AT KWALE THIS… …20TH …. DAY OF…...APRIL….2026
Ruling delivered in the presence of: -
a) Mr. Asmaa Maftah, the Court Assistant.
b) Mr. Ousa Okello Advocate for the Appellant/Applicant.
c) Dr. Chitembwe Juma Advocate for the Interested Party/Respondent.
d) M/s. Kiti Advocate for the Respondent.