Introduction
1. This ruling is in respect of appellant/applicant’s application dated 7th February 2024. Through the application, the appellant/applicant seeks an order of stay of execution of the judgment of this court delivered on 22nd January, 2024. The application is premised on the grounds that the appellant/applicant has appealed against the judgment and the decree emanating therefrom; that the appellant/applicant has been residing in the suit property with his family for over thirty (30) years without disturbance or hinderance; that the application has been brought without unreasonable delay and that unless the order sought is granted, the appellant/applicant may be rendered homeless and desolate.
2. The application is supported by the supporting affidavit of the appellant/applicant in which the grounds on the face of the application are reiterated.
3. The plaintiff/respondent’s response is not in the court file.
4. The application was disposed off by way of written submissions.
Appellant/Applicant’s submissions
5. In his submissions filed on 16th May 2024, the appellant/
applicant has referred to the averment in his affidavit that unless the orders sought are granted he and his family may be rendered homeless and desolate.
6. Based on the provisions of Order 42 Rule 6(2)(a) and the decision in the case of James Wangalwa & Another vs. Agnes Naliaka Cheseto (2012)e KLR, it is submitted that the appellant/applicant has demonstrated that unless stay is granted, he may suffer substantial loss.
7. It is also submitted that the application was filed without inordinate delay as required by Order 42 Rule 2(a) of the Civil Procedure Rules.
8. Based on the provisions of Order 42 Rule 6(2)(b) of the Civil Procedure Rules, it is submitted that the court is required to make an order for security to be provided by the applicant for the due performance of such decree or order as may ultimately be binding on him. In that regard, it is submitted that the appellant/applicant is ready and willing to comply with such order on security as the court may make.
9. Concerning the purpose of an order of stay of execution pending appeal, reference is made to the case of Chinese City Construction Company Ltd v. Minica Nyaore Nyaori & another (suing as legal representatives of the Estate of Silas Okech Nyaori-Deceased)(2021) e KLR where the court made reference to the case of RWW Vs. EKW (2019)e KLR where it was held:-
“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 award of costs.”
Plaintiff/Respondent’s Submissions
10. In the plaintiff’s/respondent’s submissions filed on 16th May 2024, reference is made to Order 42 Rule 6 of the Civil Procedure Rules and decision in the case of Selestica Limited vs. Gold Rock Development (2015) e KLR and submitted that for the appellant/applicant to be granted the orders sought, he must meet the three conditions stipulated in Order 42 Rule 1 and 2 of the Civil Procedure Rules namely, the application has been made without unreasonable delay, possibility of the plaintiff/applicant suffering irreparable loss and giving security for performance of decree.
11. It is further submitted that the right of appeal must be balanced against the equally weighty right of a successful party to enjoy fruits of judgment. In that regard, reference is made to the case of Mohamed Salim t/a Choice Butchery vs. Nasserpuria Memon Japat (2013)e KLR.
12. As to whether the appellant/applicant has met the conditions for being granted an order of stay of the judgment or decree of this court, it is submitted that the appellant/applicant has not demonstrated that unless stay is granted, he would suffer substantial loss.
13. Terming the appellant/applicant’s averment that he stands to be rendered homeless and desolate unsubstantiated, the plaintiff/respondent submits that the appellant/applicant ought to have provided photographs or a further affidavit sworn by his family members to prove that allegation.
14. The plaintiff further submits that there is no valid appeal lodged before the Court of Appeal on which the application for stay can be hinged. The application for stay and the appeal are said to have been filed out of time.
15. According to the plaintiff/respondent, the application for stay and the notice of appeal ought to have been filed within 7 days from the date of delivery of the judgment appealed from.
16. On the requirement of security for the due performance of such decree or order as may ultimately be binding on him, it is pointed out that the appellant/applicant has not offered security and submitted that the appellant/ applicant has not made up a case for being granted the order sought.
17. It is the plaintiff/respondent’s case that for land cases, the suit land needs to be preserved in a state that the successful appellant would not find that it has changed its character. It is submitted that critical factors to take into consideration include the nature and user of land; the length of possession by the applicant and whether the applicant can provide security for loss of use that will be suffered by the respondent while the appeal is pending determination. In that regard, reference is made to the case of George Kiprono Kili vs. Christopher Kili (Eldoret ELC 101 of 2012), where the court allowed an application for stay pending appeal subject to the appellant depositing security for loss of use that was to be occasioned to the successful plaintiff.
18. The plaintiff/respondent urges this court, if it is inclined to grant the order of stay, to order the appellant/applicant, to deposit full costs of the primary suit that was heard and determined by this court together with those of the Court of appeal, assessed at approximately Kshs.1,000,000/-.
Analysis and Determination
19. I have carefully read and considered the applicant’s application and the submissions made in respect thereof.
20. The sole issue for the court’s determination is whether the applicant has made up a case for being granted an order of stay pending the hearing and determination of the appeal.
21. Concerning that issue, the appellant/applicant has made reference to his averment that unless the order sought is granted, he and his family may be rendered homeless and desolate (he may suffer substantial loss).
22. Whereas the plaintiff/respondent submits that the appellant/applicant has not by way of photographs and/or affidavits of his family members, proven that assertion; from the judgment appealed from, it is clear that the appellant/applicant has been in use and possession of the suit property for a long period of time. It is that long period of time that informed the court’s decision to award the plaintiff/respondent’s mesne profits of Kshs. 200,000/-.
23. The subject matter of the appeal being land, found to have been fraudulently registered in the name of the appellant /applicant, I am convinced that if stay is denied and the plaintiff/respondent takes over the suit property, the appellant/applicant may deal with it in a manner prejudicial to the outcome of the appeal, should he succeed in his appeal.
24. I note that the application for stay was filed barely three weeks after the judgment appealed from was delivered hence there was no unreasonable delay.
25. Although the applicant has not offered security, he has stated that he is ready and willing to abide with such order for security as to costs as the court may order.
26. Being of the view that in the circumstances of this case justice will be served by balancing the appellant/ applicant’s right of appeal with the plaintiff/respondent’s right to enjoy the fruits of his judgment, I am inclined to allow the appellant/applicant’s application for stay dated 7th February 2024 on the following conditions:-
i) The appellant/applicant shall, within 21 days from the date of delivery of this ruling deposit in a joint interest account to be opened in the joint names of the advocates for the parties Kshs.400,000/= being the Kshs. 200,000/- granted by the court as mesne profit plus an additional Kshs. 200,000/- as security for costs, failing which the application shall automatically stand dismissed with costs to the plaintiff/respondent.
ii) The appellant/applicant shall, within 21 days from the date of delivery of this ruling, deposit the original title deed in respect of the suit property in court, as additional security for the due performance of his obligations to the plaintiff/respondent, in case he does not succeed in his appeal.
iii) Additionally, the appellant/applicant is directed to file an undertaking to pay such additional mesne profits as may be assessed by the court for the period of use of the suit property during the period of the appeal, should he lose the appeal.
27. Orders accordingly.
Dated, signed and delivered at Iten this 11th day of June, 2024.
Ruling delivered virtually in the presence of:-
Ms. Ngala for the plaintiff/respondent
Mr. Nyamweya holding brief for Mr. Mutonyi for 3rd defendant
N/A for 1st & 2nd defendants/respondents
Court Assistant: Alex