Bonito Properties Ltd v Bungoma Teachers Housing & Investment Cooperative Society Ltd

replying adavit and further adavits dated 6th July 2026 and 10th July 2026, respectively, sworn by Peter Simiyu Sirengo, the respondent’s chairman. BS Advocates LLP, the respondent’s advocates, led written submissions dated 6th July 2026 in opposition to the application. 3. We heard the application on 14th July 2026 through this Court’s virtual platform, and learned counsel Mr. Teddy Ochieng, appeared for the applicant, while learned counsel Mr. Saul Wasilwa was present for the respondent. Both counsel highlighted their respective written submissions. The applicant is in this regard required to satisfy two conditions for an order of stay of execution to be issued by this Court. Firstly, that its intended appeal is arguable, and secondly, that unless the orders sought are granted, the intended appeal, if successful, will be rendered nugatory. These requirements were amplied by this Court in Stanley Kang’ethe Kinyanjui vs Tony Ketter & 5 Others [2013] eKLR. 4. As regards the demonstration of an arguable appeal, the applicant averred that the learned trial Judge erred and exercised discretion injudiciously in allowing, through an interim application, the claim for special damages of Kshs 47,250,170/= without conducting a full trial contrary to the established law that special damages must be specically pleaded; by allowing the prayer for mandatory injunction assaulting the interim application contrary to the established law that such an injunction he’s only granted in clear and special circumstances which were not present; and by holding that the respondent had demonstrated ownership of the suit property on the basis of a disputed lease agreement without calling for more evidence. Thereby rendering the exercise of her discretion in- judicious. As regards the application being rendered nugatory, the applicant averred that if stay orders are not granted before 13th June 2026, the respondent will execute the ruling for Kshs. 47,250,170/=, causing severe and irreversible nancial/operational damage to the applicant and rendering the appeal useless even if successful. 5. In this regard, the applicant’s counsel, while referencing the annexed draft Memorandum of Appeal, outlined ve grounds of appeal, and highlighted two primary legal issues for determination, namely whether the trial court properly exercised its discretion by granting a mandatory injunction before the main suit had been heard, and whether the court prematurely determined contested issues. Counsel cited the decisions in Damji Paragji Mandaria vs. Sara Lee Household & Body Care (K) Limited (Civil Application No. 345 of 2004) that it is sucient to raise a single bona de arguable ground of appeal, and in Kimani & Another vs. Benson (Civil Appeal No. E006 of 2023) that an arguable appeal does not necessarily have to be one that will succeed, but rather one that deserves the consideration of the court. Lastly, counsel reiterated that if execution proceeds, the subject matter of the appeal will be spent, the applicant will suer substantial nancial prejudice and will be compelled to comply with the mandatory orders before this Court determines if they were lawfully granted, and the lease agreement will eectively be determined without following due process. 6. On its part, the respondent contended that the trial judge properly determined that the applicant has occupied the premises for approximately 10 years (since 2014) while deriving commercial benet without paying rent, and the applicant failed to present any receipts, bank statements, or evidence demonstrating payment of rent. Further, that the sum ordered to be paid of Kshs. 47,250,170/= represented accrued unpaid rent. In addition, that the applicant was attempting to raise the issue of property ownership for the rst time in its draft Memorandum of Appeal, and this issue was neither pleaded, canvassed, nor determined at the trial court, where the respondent’s title was duly submitted. While making reference to attempts by the applicant to withdraw the suit in the trial Court, the respondent averred that the applicant has failed to show that the appeal will be rendered nugatory if stay is denied, as the decree is primarily monetary and the respondent is capable of refunding the sum should the appeal succeed. https://new.kenyalaw.org/akn/ke/judgment/keca/2026/2069/eng@2026-09-25 2

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7. The respondent’s advocates reiterated these averments, and cited the decisions in Independent Electoral & Boundaries Commission & Anor vs Stephen Mutinda Mule & 3 Others (C.A. 219 of 2013) that parties are bound by their pleadings in an adversarial system and a party cannot introduce fresh claims or unpleaded issues on appeal without due amendment, to prevent taking the opposing party by surprise; in Kenya Shell Ltd vs Benjamin Karuga Kibiru & Another [1986] KLR 410 that substantial loss is the cornerstone for granting a stay of execution and that in a monetary decree, without evidence that the respondent lacks the nancial ability to refund the decretal sum if the appeal succeeds, a stay should be refused; and in Machira t/a Machira & Co. Advocates vs East African Standard (No. 2) [2002] KLR 63 that a successful party is ordinarily entitled to the fruits of their judgment. 8. We have considered the arguments made by the applicant and respondent. On the rst requirement on arguability, the law is settled that an arguable appeal is not one that must ultimately succeed, but one that raises at least a single bona de issue that deserves full consideration on appeal. An applicant need not proer a multiplicity of arguable points and for a point to be arguable it needs merely to raise a bona de point of law or fact sucient to call for an answer from the respondent and is worthy of the Court’s consideration. Given this low threshold, we are prepared to accept that the issue raised by the applicant as to whether the trial Court injudiciously gave nal orders at an interlocutory stage is arguable. We accordingly nd that the applicant has demonstrated that the intended appeal is arguable. 9. Turning to the nugatory aspect, this Court stated in Stanley Kang’ethe Kinyanjui vs Tony Ketter & 5 Others (supra) that whether or not an appeal will be rendered nugatory depends on whether what is sought to be stayed, if allowed to happen is reversible, or if it is not reversible, whether damages will reasonably compensate the party aggrieved. The applicant in this regard has averred that it will be exposed to irreparable prejudice and suer substantial nancial prejudice and operational consequences if compelled to comply with the mandatory orders, and the lease agreement will eectively be determined without following due process. We are however of the view that these eects are reversible since they can be adequately compensated by way of damages, and the respondent in this respect averred that the applicant has not demonstrated that it is not a position to refund the amount that it was ordered to pay as outstanding rent We are therefore not satised that the applicant’s intended appeal will be rendered nugatory in the event it succeeds. 10. Consequently, although its appeal is arguable, the applicant has not established that the appeal will be rendered nugatory in the event the stay orders that it seeks are not granted. The applicant was required to satisfy both limbs and has not, and the Notice of Motion dated 9th June 2026 is accordingly dismissed with costs to the respondent. 11. Orders accordingly. DATED AND DELIVERED AT KAKAMEGA THIS 25TH DAY OF SEPTEMBER, 2026 P. NYAMWEYA ……………………………. JUDGE OF APPEAL ALI-ARONI ……………………………. JUDGE OF APPEAL R. NGETICH …………………………… https://new.kenyalaw.org/akn/ke/judgment/keca/2026/2069/eng@2026-09-25 3

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JUDGE OF APPEAL I certify that this is a true copy of the original. Signed DEPUTY REGISTRAR https://new.kenyalaw.org/akn/ke/judgment/keca/2026/2069/eng@2026-09-25 4

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