Introduction
1. Before court is a notice of motion dated 5th April 2025 filed by the appellants seeking stay of execution of the judgment and decree in Butali MCELC NO. 52 of 2018 pending hearing and determination of the appeal herein.
2. The application is predicated on the affidavit sworn by James Ngaira, on 5th April 2025. The deponent stated that the trial court in Butali MCELC NO. 52 OF 2018 ordered cancellation of title deeds, eviction and payment of mesne profits of Kshs. 400, 000/=. That the appeal is not frivolous as the trial court ordered cancellation of title deeds whose registered proprietors were not parties to the case. He stated that he was born and raised on the disputed land and he does not know any other home. Further that the co-applicants are merely bona fide purchasers for value without notice. He stated that if eviction proceeds, the applicants will be rendered destitute. That their application for stay in the lower court was declined. In addition, he deponed that the respondent had already sought security to facilitate eviction, that he had filed the application without delay and that they were willing to comply with conditions for security for costs that may be set by the court. He attached a copy of the judgment, ruling dismissing application for stay by the trial court and the respondent’s application for security.
3. The application was opposed. Ngome Natala, the respondent filed a replying affidavit sworn on 9th May 2025. He deponed that the application was only aimed at keeping him away from enjoying the fruits of his judgment. He took the position that the applicants were forum shopping as their application for stay of execution had been dismissed by the trial court. He maintained that allowing the application will cause him substantial loss as he has been denied the use of his land when he is already aged. According to him, the appeal has no chances of success but meant to delay and obstruct the course of justice.
Analysis and determination
4. The court has carefully considered the application and the response. The only issue that arise for determination is whether the applicant has met conditions for grant of orders of stay of execution pending appeal.
5. Order 42 Rule 6 of the Civil Procedure Rules grants this court power to order stay of execution pending appeal and provides as follows;
Stay in case of appeal [Order 42, rule 6]
(1) 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 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.
(2) 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.
6. Therefore, to obtain stay of execution pending appeal, an applicant must demonstrate that they stand to suffer substantial loss if stay is not granted; that they have sought for stay without unreasonable delay and show willingness to provide security for the due performance of the decree.
7. Execution is a lawful process that follows grant of an order, judgment and or decree and therefore imminent execution alone cannot be the basis for granting an order of stay of execution pending appeal. An applicant seeking stay of execution is under obligation to demonstrate that he or she stands to suffer substantial loss which will render the appeal nugatory if execution proceeds.
8. On substantial loss, the applicant must show that execution will cause significant loss and result in rendering the appeal nugatory. In the case of James Wangalwa & Another v. Agnes Naliaka Cheseto [2012] eKLR, the court discussed the element of substantial loss as follows;
No doubt in law the fact that the process of execution has been put in motion or is likely to be put in motion by itself does not amount to substantial loss. Even when execution has been levied and completed, that is to say, the attached properties have been sold, as is the case here, does not in itself amount to substantial loss under Order 42 Rule 6 of the Civil Procedure Rules. This is so because execution is a lawful process.
The applicant must establish 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.
9. In the instant matter, the deponent stated that the trial court cancelled title deeds for persons that were not parties to the suit and that his co-applicants are purchasers for value without notice. He also stated that he had been born and raised on the suit property and knows no other home. According to him, eviction will render the applicants destitute.
10. Having considered the application, it is clear that the deponent is not listed as one of the appellants in this appeal and he is not the registered proprietor of the suit property as he is arguing on behalf of persons he alleges were not party to the suit in the subordinate court. He did not show any nexus or relationship he has with the parties in this matter. He has also not shown his interest on the suit property or the nature of his claim on the same. Being born and raised on the suit property alone cannot be basis for grant of orders of stay of execution, especially for a person who is not one of the appellants. In addition, apart from making allegations, no evidence that the appellants have homes on the suit property or that they will be rendered destitute if stay is not granted, was availed before court. In short, the applicants have not demonstrated that they stand to suffer substantial loss if execution is not stayed.
11. In the premises, I find no merit in the application dated 5th April 2025, which I hereby dismiss with costs to the respondent.
12. It is so ordered.
DATED, SIGNED AND DELIVERED AT KAKAMEGA VIRTUALLY THROUGH MICROSOFT TEAMS VIDEO CONFERENCING PLATFORM THIS 22ND DAY OF MAY, 2025
In the presence of;
Mr. Mondia for the appellant
No appearance for the respondent
Court Assistant: M. Nguyai