1. The court delivered a ruling on 18th July 2025 regarding the application dated 1st April 2025, through which the plaintiff/applicants sought an order of injunction restraining the defendants, their servants, or agents from implementing all the resolutions of the annual general meeting held on 25th March 2025, pending the hearing and determination of the suit.
2. In the said ruling, the court observed at paragraph 38 that:
“The change of the constitution of the club will be difficult to undo; similarly, the damage to the reputation of the plaintiff/applicants may become permanent. It will be better for the weighty issues in this matter to be resolved on merit rather than at the interlocutory stage.”
The court allowed the said application and issued orders of injunction.
3. The court's decision prompted the filing of two applications. The first, by Mr Michael Sangoro, is dated 23rd July 2025. It sought a review of the decision on grounds including, inter alia, the existence of errors apparent on the face of the record and that the impugned decision would cause severe hardships to the applicant, who would then be forced to continue serving as an official of the club despite no longer wishing to do so.
4. After hearing the parties, the court declined to review its decision and ordered that the costs would abide the outcome of the suit.
5. The second application is dated 31st July 2025. It was filed on behalf of the 6th and 10th defendants/applicants and seeks a stay of the execution of the orders issued by this Court pending the hearing and determination of the appeal filed by them at the Court of Appeal.
6. The said application was opposed. As this is a run-of-the-mill stay application, the Court will not rehash the parties' averments and responses.
7. The conditions that a party seeking a stay of execution pending appeal must satisfy are well settled. Order 42 Rule 6 (2) of the Civil Procedure Rules provides that:
“No order for stay of execution shall be made under subrule (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.”
8. An applicant must therefore show that he/she/they:
a. Will suffer substantial loss unless a stay is granted;
b. The application was filed without undue delay; and
c. Give such security as may ultimately be binding on him/her/them.
9. There can be no debate that the application was filed without undue delay. The same was filed on 31st July 2025, 13 days after the impugned ruling was delivered.
10. I have anxiously perused the subject application. While the applicants’ counsel has indicated in the submission dated 7th October 2025 that they have expressly undertaken to abide by the conditions this honourable court may impose regarding security, I have seen no such express statement in the application. In such a case, I am unable to agree that the 3rd condition for granting a stay was met.
11. I have deliberately considered the two conditions first, as they are easier to dispose of, since all that the court needs to consider are the dates and the explicit contents of the application. With those two out of the way, I will now consider the first condition, which is whether the applicants will suffer substantial loss.
12. In RWW v EKW [2019] KEHC 6523 (KLR), it was held that:
“8. 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.”
13. In the case of JAMES WANGALWA & ANOTHER V AGNES NALIAKA CHESETO [2012] KEHC 1094 (KLR), the court held that:
“The applicant must establish other factors which show that the execution will create a state of affairs that will irreparably affect or negate the very essential core of the Applicant as the successful party in the appeal. This is what substantial loss would entail, a question that was aptly discussed in the case of Silverstein N. Chesoni [2002] 1KLR 867, and also in the case of Mukuma V Abuoga quoted above. The last case, referring to the exercise of discretion by the High Court and the Court of Appeal in the granting stay of execution, under Order 42 of the CPR and Rule 5(2) (b) of the Court of Appeal Rules, respectively, emphasized the centrality of substantial loss thus:
“…the issue of substantial loss is the cornerstone of both jurisdictions. Substantial loss is what has to be prevented by preserving the status quo because such loss would render the appeal nugatory.”
With this observation, of course, a frivolous appeal cannot in practical terms be rendered nugatory.”
14. I have considered the matter carefully with utmost respect to the applicants, and I am unable to see how the appeal would be rendered nugatory unless a stay is granted. What the impugned decision did was to preserve the status quo at the club. The manner in which this Court exercised its discretion by allowing the application for an injunction against the proposed amendments to the Constitution of the Club will be considered by the Court of Appeal. I see no loss on the part of the applicants that may not be compensated
15. In my view, the 3 conditions that the court must take into account when considering an application for stay pending appeal must all exist together. In this case, the 1st and 3rd elements are missing. That being the case, the application dated 31st July 2025 cannot succeed. The same is dismissed.
16. Regarding costs, I order that costs shall be in the cause.
17. It is so ordered.
Dated and signed in Mombasa, this 18th day of March 2026. Delivered virtually through Microsoft TEAMS.
2. In the said ruling, the court observed at paragraph 38 that:
“The change of the constitution of the club will be difficult to undo; similarly, the damage to the reputation of the plaintiff/applicants may become permanent. It will be better for the weighty issues in this matter to be resolved on merit rather than at the interlocutory stage.”
The court allowed the said application and issued orders of injunction.
3. The court's decision prompted the filing of two applications. The first, by Mr Michael Sangoro, is dated 23rd July 2025. It sought a review of the decision on grounds including, inter alia, the existence of errors apparent on the face of the record and that the impugned decision would cause severe hardships to the applicant, who would then be forced to continue serving as an official of the club despite no longer wishing to do so.
4. After hearing the parties, the court declined to review its decision and ordered that the costs would abide the outcome of the suit.
5. The second application is dated 31st July 2025. It was filed on behalf of the 6th and 10th defendants/applicants and seeks a stay of the execution of the orders issued by this Court pending the hearing and determination of the appeal filed by them at the Court of Appeal.
6. The said application was opposed. As this is a run-of-the-mill stay application, the Court will not rehash the parties' averments and responses.
7. The conditions that a party seeking a stay of execution pending appeal must satisfy are well settled. Order 42 Rule 6 (2) of the Civil Procedure Rules provides that:
“No order for stay of execution shall be made under subrule (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.”
8. An applicant must therefore show that he/she/they:
a. Will suffer substantial loss unless a stay is granted;
b. The application was filed without undue delay; and
c. Give such security as may ultimately be binding on him/her/them.
9. There can be no debate that the application was filed without undue delay. The same was filed on 31st July 2025, 13 days after the impugned ruling was delivered.
10. I have anxiously perused the subject application. While the applicants’ counsel has indicated in the submission dated 7th October 2025 that they have expressly undertaken to abide by the conditions this honourable court may impose regarding security, I have seen no such express statement in the application. In such a case, I am unable to agree that the 3rd condition for granting a stay was met.
11. I have deliberately considered the two conditions first, as they are easier to dispose of, since all that the court needs to consider are the dates and the explicit contents of the application. With those two out of the way, I will now consider the first condition, which is whether the applicants will suffer substantial loss.
12. In RWW v EKW [2019] KEHC 6523 (KLR), it was held that:
“8. 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.”
13. In the case of JAMES WANGALWA & ANOTHER V AGNES NALIAKA CHESETO [2012] KEHC 1094 (KLR), the court held that:
“The applicant must establish other factors which show that the execution will create a state of affairs that will irreparably affect or negate the very essential core of the Applicant as the successful party in the appeal. This is what substantial loss would entail, a question that was aptly discussed in the case of Silverstein N. Chesoni [2002] 1KLR 867, and also in the case of Mukuma V Abuoga quoted above. The last case, referring to the exercise of discretion by the High Court and the Court of Appeal in the granting stay of execution, under Order 42 of the CPR and Rule 5(2) (b) of the Court of Appeal Rules, respectively, emphasized the centrality of substantial loss thus:
“…the issue of substantial loss is the cornerstone of both jurisdictions. Substantial loss is what has to be prevented by preserving the status quo because such loss would render the appeal nugatory.”
With this observation, of course, a frivolous appeal cannot in practical terms be rendered nugatory.”
14. I have considered the matter carefully with utmost respect to the applicants, and I am unable to see how the appeal would be rendered nugatory unless a stay is granted. What the impugned decision did was to preserve the status quo at the club. The manner in which this Court exercised its discretion by allowing the application for an injunction against the proposed amendments to the Constitution of the Club will be considered by the Court of Appeal. I see no loss on the part of the applicants that may not be compensated
15. In my view, the 3 conditions that the court must take into account when considering an application for stay pending appeal must all exist together. In this case, the 1st and 3rd elements are missing. That being the case, the application dated 31st July 2025 cannot succeed. The same is dismissed.
16. Regarding costs, I order that costs shall be in the cause.
17. It is so ordered.
Dated and signed in Mombasa, this 18th day of March 2026. Delivered virtually through Microsoft TEAMS.