Kirobon Farmers Co. Ltd v Nyarangi

arguable appeal; that the Land Registrar made entries on the green card of the suit property without informing the plainti and that the plainti is willing to deposit reasonable security for costs. 3. In response to the application, the defendant led a replying adavit sworn on 26/09/2022 and led on 27/09/2022. He deposes that after delivery of the judgment on 21/06/2022 the plainti used the oce of the Directorate of Criminal Investigations to summon his farm caretaker one Bethsaida Mongina on 08/07/2022; that on the said date the plainti ploughed the entire parcel of land and planted maize while his caretaker was at the oces of the Directorate of Criminal Investigations; that they only left two portions of the land where the houses are located; that there is no resolution attached to the adavit of Samuel K. Birir allowing him to swear the adavit on behalf of the Plainti who is a limited liability company; that the plainti is not the owner of the suit property as the title issued on 21/03/2016 was cancelled by the Registrar of Lands on 08/08/2018; that he has been in possession of the suit property; that the plainti has been trying to evict him; that the current value of the suit property is Kshs.100,000,000 and that the plainti should be compelled to deposit security for costs commensurate to the value of the land. 4. The defendant led his submissions dated 28/02/2023 on the same date while the plainti did not le any submissions. 5. The defendant submitted that the plainti through its agents have been harassing him since the court delivered its judgement on 21/06/2022 and then reiterated the contents of his replying adavit to the application. The defendant relied on Order 42 Rule 6 of the Civil Procedure Rules, the cases of Canvass Manufacturers Ltd vs Stephen Reuben Karunditu Civil Application No. 158 of 1994, (1994) LLR 4853, Stephen Wanjohi vs Central Glass Industries Ltd Nairobi HCC No. 6726 of 1991 as cited in the case of Teresiah Wairimu v Wanjiku Mwangi [2018] eKLR and submitted that for a court to grant an order for stay of execution, there must be sucient cause, risk of substantial loss, no unreasonable delay and that security and the grant of stay is discretionary. 6. The defendant submitted that the plainti has not demonstrated sucient cause or substantial loss that it will suer if stay pending appeal is not granted. The defendant further submitted that the court should consider the prejudice he is likely to suer if it grants orders of stay pending appeal. The defendant also submitted that should the court be inclined to grant the same then the plainti should deposit a sum of Kshs.100,000,000/= being the value of the suit property. 7. The defendant further relied on the case of Butt vs Rent Restriction Tribunal [1982] KLR 417 and submitted the court should consider the undisputed fact that both the plainti and the defendant are in occupation of the suit property and the conduct of the plainti’s agents after the delivery of the judgment in this matter. Analysis and determination 8. After considering the application, the replying adavit and the submissions, the only issue that arises for determination is whether the court should grant orders of stay of execution pending appeal. 9. Order 42 Rule 6 (1) and (2) of the Civil Procedure Rules provides as follows: (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 sucient 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 https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/16801/eng@2023-04-13 2

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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. 10. (2) No order for stay of execution shall be made under sub-rule (1) unless— (a) the court is satised 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. In Civil Appeal No.107 of 2015, Masisi Mwita -vs- Damaris Wanjiku Njeri (2016) eKLR, the Court held that: “ The application must meet a criteria set out in precedents and the criteria is best captured in the case of Halal & Another..Vs…Thornton & Turpin Ltd, where the Court of Appeal (Gicheru JA, Chesoni and Cockar Ag. JA) held that:“The High Court’s discretion to order stay of execution of its Order or Decree is fettered by three conditions, namely; - Sucient Cause, substantial loss would ensue from a refusal to grant stay, the Applicant must furnish security, the application must be made without unreasonable delay.” In addition, the Applicant must demonstrate that the intended Appeal will be rendered nugatory if stay is not granted as was held in Hassan Guyo Wakalo…vs…Straman EA Ltd (2013) as follows:“ In addition, the Applicant must prove that if the orders sought are not granted and his Appeal eventually succeeds, then the same shall have been rendered nugatory.” These twin principles go hand in hand and failure to prove one dislodges the other.” 11. On whether the application was led without unreasonable delay, the plainti led the present application on 19/07/2022 while judgement was delivered on 21/06/2022. There is a Notice of Appeal on the court record dated 22/06/2022 and it is therefore my view that for the purposes of this application, there is an appeal in place and the application was led without unreasonable delay. 12. On whether the plainti will suer substantial loss if the orders sought are not granted, the plainti stated that unless stay is granted, it stands to suer substantial loss as the defendant might execute the judgement and occupy its parcel of land. The defendant on the other hand argued that both the plainti and the defendant are in possession of the suit property and so the plainti will not suer any substantial loss. 13. The court in the case of Elishaphan Omollo Nyasita v Gradus Atieno Othim & another [2019] eKLR held as follows: “ 11. It is trite law that it is not merely sucient for the applicant to state that he or rather she is likely to suer substantial loss if the application for stay of execution sought is not allowed. The applicant has not shown the damage or loss that he is likely to suer if the order sought in the application is not granted. Moreover, to grant the order aforesaid would deny a successful litigant (respondent) the fruits of his Judgment as held in Kenya Shell Ltd case (supra).” https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/16801/eng@2023-04-13 3

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14. It is my view that the plainti in this matter has not demonstrated the substantial loss he stands to suer if the orders of stay of execution are not granted. Consequently, the plainti’s application dated 18/07/2022 lacks merit and it is hereby dismissed with costs. DATED, SIGNED AND DELIVERED AT NAKURU VIA ELECTRONIC MAIL ON THIS 13TH DAY OF APRIL 2023. MWANGI NJOROGE JUDGE, ELC, NAKURU https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/16801/eng@2023-04-13 4

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