1. The Appellant/Applicant, Sospeter Kariuki Thuo, moved this Court vide a Notice of Motion dated 9th March 2026 (under Certificate of Urgency), seeking, inter alia, a stay of execution of the judgment and decree in Siakago MC-ELC No. 14 of 2018, pending the hearing and determination of the instant appeal. The Application is brought under Order 42 Rule 6 of the Civil Procedure Rules, 2010.
2. The background to this Application is briefly as follows. The Respondents had filed suit in the trial court claiming that land parcels No. NTHAWA/RIANDU/2949 and NTHAWA/RIANDU/2951 had, by error, been interchanged on the ground/map, and that in consequence their parcels lay on land registered in the Appellant's name. The trial court gave judgment in favour of the Respondents on 25th June 2025, and that judgment was subsequently amended on 17th December 2025 pursuant to Section 99 of the Civil Procedure Act, Cap 21. The Appellant, aggrieved by the amended judgment, preferred the instant appeal and simultaneously brought this Application seeking a stay of execution pending the appeal.
3. The Respondents raised a preliminary objection to the effect that the Firm of M/S Victor L. Andande & Co. Advocates is not properly on record for the Appellant for failure to comply with the provisions of Order 9 Rule 9 of the Civil Procedure Rules, 2010, rendering the Application incompetent. The Respondents relied on the decisions in
4. Order 9 Rule 9 CPR requires that where an advocate comes on record in place of another, a Notice of Change of Advocates shall be served on all parties and filed in court. The Respondents contend that this was not done. However, it is notable from the record that the Appellant filed a Notice of Withdrawal of the earlier Application dated 16th July 2025 and proceeded to file the instant Application through the new firm. In the case of Kakuta Maimai Hamisi v Peris Pesi Tobiko & 2 Others [2013] KLR, the Court held that failure to comply with Order 9 Rule 9 does not render the proceedings a nullity but is an irregularity that can be cured. The overriding objective under Article 159(2)(d) of the Constitution is that justice shall be administered without undue regard to procedural technicalities. This Court accordingly declines to strike out the Application on this ground. Any non-compliance with Order 9 Rule 9 is to be regularized by the Applicant's Advocates forthwith, failing which the matter shall be relisted for directions.
5. An application for stay of execution pending appeal is governed by Order 42 Rule 6(2) of the Civil Procedure Rules, 2010. The rule provides that no order of stay shall be made unless the Court is satisfied that: (a) substantial loss may result to the applicant unless the order is made; (b) the application has been made without unreasonable delay; and (c) 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. The seminal authority on stay of execution pending appeal remains Butt v Rent Restriction Tribunal [1979] eKLR, in which the Court of Appeal set out the principles that guide the discretion of the Court in such applications.
ANALYSIS
6. Although Order 42 Rule 6(2) does not expressly include arguability of the appeal as one of the conditions for grant of stay, the Court of Appeal in Butt v Rent Restriction Tribunal (supra) established that the Court must be satisfied that the appeal is not frivolous. The Respondents contend that the appeal is untenable on the ground that the original judgment of 25th June 2025 became functus officio upon the amended judgment of 17th December 2025 and that the Memorandum of Appeal is directed at the original rather than the amended judgment.
7. The Court has perused the pleadings. The Appellant raises several issues for determination in the main appeal, including: that the trial court made findings of a mix-up of parcel numbers on the ground without an expert surveyor's report; that the Appellant was not a party to the transactions alleged to have caused the interchanging of parcels; that the amended judgment issued orders that were not part of the original pleadings; and that the Appellant's first advocate omitted to file a counterclaim to protect his proprietary rights, a lapse that ought not to be visited upon him. These are arguable points that engage the merits of the trial court's decision. This Court is satisfied that the appeal is not frivolous. The case of Muriuki v Muriuki & 2 Others [2023] KEELC 15841 (KLR) is instructive in this regard.
8. The subject matter of the appeal is registered land, specifically parcels NTHAWA/RIANDU/2949 and NTHAWA/RIANDU/2951. The impugned amended judgment, if implemented, would have the effect of directing the Land Registrar to make alterations affecting the Appellant's registered titles. Land by its very nature is unique and irreplaceable. If the decree is executed before the appeal is heard and determined, third parties may be registered as owners or other dealings may occur over the suit parcels that would be difficult, if not impossible, to undo should the Appellant ultimately succeed on appeal.
9. The Appellant deposes that he resides on the suit land with his family and is a peasant farmer who has made extensive improvements thereon. The Respondent, in his replying affidavit, contends that the Appellant forcefully evicted him, demolished his house and uprooted his miraa plants, thus rendering him destitute. While the Court takes note of the Respondent's position, the question at this stage is not who should ultimately prevail on the merits, but whether the Applicant stands to suffer loss that would be difficult to compensate in damages. This Court is satisfied that the potential for irreversible changes to the register and the consequent eviction of the Applicant constitute substantial loss sufficient to warrant the grant of stay.
10. The Respondents contend that a similar application had been filed by the previous firm on 16th July 2025 and that the current Application is an afterthought. The Appellant, however, explains that the earlier Application related to the original judgment and has since been withdrawn. The amended judgment was issued on 17th December 2025, and the current Application was filed on 9th March 2026 — approximately three months later. Whilst the period is not entirely brief, it is not unreasonable in the circumstances, particularly given that the Appellant was in the process of changing advocates and filing the appeal. The Court accordingly finds that the Application was made without unreasonable delay.
11. Order 42 Rule 6(2)(c) requires that such security as the Court orders for the due performance of the decree shall be given. The Respondents have prayed that, if stay is granted, the Appellant be ordered to deposit the original title deeds for both parcels NTHAWA/RIANDU/2949 and NTHAWA/RIANDU/2951 together with Kshs. 200,000/= (being the amount of general damages awarded) in court within seven (7) days.
12. The Appellant in his Further Affidavit states that he is agreeable to depositing the original title deed for parcel NTHAWA/RIANDU/2951 in court, and that the title deed for parcel NTHAWA/RIANDU/2949 was never collected from the Lands Office. Considering the nature of this dispute and the fact that the Respondents have an award of Kshs. 200,000/= in general damages that ought to be secured, this Court finds it appropriate to require the Appellant to deposit both title deeds (to the extent they are in his custody or available to him from the Lands Registry) and to deposit the sum of Kshs. 200,000/= in court as security, as a condition for the grant of stay.
ORDERS
13. Accordingly, and for the foregoing reasons, this Court makes the following Orders:
(i) The Application for stay of execution of the judgment and decree in Siakago MC-ELC No. 14 of 2018 (as amended on 17th December 2025) is hereby allowed subject to the conditions herein below.
(ii) The Appellant/Applicant shall, within twenty-one (21) days of the date hereof:
(a) Deposit the original certificate(s) of title for parcel(s) NTHAWA/RIANDU/2951 (and NTHAWA/RIANDU/2949
(b) Deposit the sum of Kshs. 100,000/= in court as security for the due performance of the decree.
(iii) In default of compliance with condition (ii) above within the stipulated time, the stay of execution shall lapse automatically without further orders of the Court, and the Respondents shall be at liberty to proceed with execution.
(iv) The Advocates for the Applicant shall file a Notice of Change of Advocates in compliance with Order 9 Rule 9 of the Civil Procedure Rules, 2010 within seven (7) days of this Ruling, failing which the matter shall be placed before the Court for appropriate directions.
(v) Costs of this Application shall abide the outcome of the appeal.
IT IS SO ORDERED.
DATED, DELIVERED AND SIGNED AT EMBU THIS 15TH DAY OF JUNE, 2026.
HON. E.C CHERONO
ELC JUDGE, EMBU
In the presence of:
1. Mr. Andande for the Appellant/Applicant
2. M/S Mwangi H/B M/S Ndorongo for the Respondent
3. Casty C/A
| 1 | Page |