Yegon v Sang & another

Factual Background. 4. 5. 6. The Plainti/Respondent commenced the present proceedings vide the Plaint dated 19th November, 2008 wherein he sought the following prayers; a. A declaration that the Defendants are trespassers on the Plainti’s land parcel number Kericho/Kipchimchim/2059 and an order that they deliver up vacant possession in default eviction order do issue. b. Mesne prots from 2004 till (sic) vacation. c. Cost of the suit and interest. d. Any other or further relief. The 1st Defendant who is deceased and the 2nd Defendant/Applicant led a joint Statement of Defence and Counterclaim dated 9th December, 2008 where they sought the following orders; a. That the Defendants (now the Plaintis) are the legally entitled to a portion of 128 ft x 122 ft to be excised from Kericho/Kipchimchim/2059. (sic) b. That the Plainti (now the Defendant) be compelled by this Honourable Court to execute the relevant documents and transfer the same to the Defendants (now Plaintis) to facilitate the transfer of the said portion to them and in default of this Court do nominate the Executive ocer in place of the Plainti (now the Defendant). c. Costs of this Counter Claim be granted by this Honourable Court and any other relief that this Court deems t to grant. On 22nd February, 2024, the Court delivered judgement in this matter in the following terms; a. A declaration that the Defendant is a trespasser on the Plainti’s land parcel No. Kericho/ Kipchimchim/2059 and therefore must deliver vacant possession within 30 days and in default an eviction order do issue. b. The Plainti shall also have the cost of the suit and Counterclaim with interest at Court rate. 7. The application under consideration rst came up for hearing on 19th March, 2024 when the Court directed that it be served upon the Respondents. 8. On 24th April, 2024 the 2nd Defendant/Applicant was granted leave to le a supplementary adavit and on 20th June, 2024 the Court directed that the application be heard by way of written submissions. 9. On 25th July, 2024 the application was mentioned to conrm ling of submissions and reserved for ruling. The 2nd Defendant/Applicant’s Contention. 10. The 2nd Defendant/Applicant contends that the 1st Defendant is deceased and the suit against him abated. 11. The 2nd Defendant/Applicant also contends that this Court delivered judgement in this matter on 22nd February, 2024 in favour of the Plainti/Respondent. https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/13292/eng@2024-11-21 2

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12. The 2nd Defendant/Applicant further contends that she was dissatised by the Court’s decision and instructed her advocates on record to le an appeal and that a Notice of Appeal dated 27th February, 2024 was led. 13. It is her contention that the Plainti/Respondent also wrote the letter dated 27th February, 2024 requesting for certied copies of the judgement and proceedings. 14. It is also her contention that the Court in its judgement ordered her to vacate the suit property within thirty days from the date of the judgement failure to which an eviction order would issue. 15. It is further her contention that on 10th March, 2024 she received information from her tenants that the Plainti/Respondent had stuck vacation notices on the doors of the rental houses built on the suit property. 16. She contends that she is apprehensive that the Plainti/Respondent will execute the judgement to her detriment. 17. She also contends that she has an arguable appeal with high chances of success and as such the suit property ought to be preserved pending the outcome of the appeal. 18. She further contends that the appeal will be rendered nugatory unless the Court issues orders of stay of execution pending the hearing and determination of the intended appeal. 19. It is her contention that she stands to suer substantial loss and irreparable prejudice, loss and damage if the orders of stay of execution are not issued. 20. It is further her contention that the Plainti/Respondent may sell or dispose of the suit parcels and the developments thereon given that he has begun to issue vacation notices to her tenants. 21. She contends that she is ready and willing to abide by any condition that will be given by this Honourable Court. 22. She also contends that the Plainti/Respondent will not suer any prejudice if the application is allowed and that it is in the interest of justice that that she be allowed to exercise her right of appeal. 23. She ends her deposition by stating that the application has been led timeously, in utmost good faith and that this Court has jurisdiction to grant the prayers sought. The Plainti/Respondent’s Response. 24. In response to the 2nd Defendant/Applicant’s application, the Plainti/Respondent led a Replying Adavit sworn on 19th April, 2024. 25. He deposes that he opposes the grant of orders of stay of execution as sought by the 2nd Defendant/ Applicant herein because the judgement delivered by this Court on 22nd February, 2024 was precise, detailed and well-reasoned. He adds that an appeal against the said judgement is a mere exercise in futility. 26. He also deposes that the suit property is not registered in his name and reiterates that the appeal is an exercise in futility no matter the outcome. 27. He further deposes that the 2nd Defendant/Applicant’s aim is to delay justice and prevent him from enjoying the fruits of his judgement as the 2nd Defendant/Applicant will continue collecting rent and therefore enjoying and/or proting from the suit property despite losing the suit. https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/13292/eng@2024-11-21 3

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28. It is his deposition that he is informed by his Advocates on record that on 22nd February, 2024 when the judgement was delivered, counsel for the 2nd Defendant/Applicant did not indicate to the Court her dissatisfaction and/or intention to appeal but rather prayed for thirty days to comply with the judgement. 29. It is also his deposition that the 2nd Defendant/Applicant thereafter led a Notice of Appeal and the present application before the thirty days within which she was to vacate the suit property were up. 30. It is further his deposition that the orders sought in the present application are unenforceable as the suit property is registered to a third party who is not a party to this suit which fact is well within the knowledge of the 2nd Defendant/Applicant. 31. He deposes that the 2nd Defendant/Applicant opted not to join the said third party to the suit. 32. He also deposes that due to his nancial status, he was forced to sell the suit property and transfer it to a third party who assisted him in nancing this suit while undertaking to pay the balance of the consideration once the suit is concluded. 33. He further deposes that he has no intentions of taking any action that would frustrate the outcome of the intended appeal but does not expect the 2nd Defendant/Applicant to continue to enjoy the suit property after losing the suit. 34. It is his deposition that when he instituted the present suit in the year 2008, he was unemployed and he struggled hard to raise nances. He reiterates that this forced him to commence the sale and transfer of the suit property. 35. It is also his deposition that he will be mentally tortured and will incur further nancial strain if he is prevented from enjoying the fruits of his judgement. 36. It is further his deposition that the conduct of the 2nd Defendant/Applicant shows that her only intention is to frustrate justice and to continue enjoying the occupation and use of the suit property to which she does not have proprietary interest. 37. He deposes that he is angry, exhausted, depressed, anxious and frustrated and he therefore pleads, begs and/or prays that justice be done and he be allowed to complete the sale of the suit property. 38. He ends his deposition by reiterating that he is unemployed with ve school going children and is nancially struggling to educate them. He adds that he has never enjoyed his inheritance owing to the 2nd Defendant/Applicant’s encroachment. The 2nd Defendant/Applicant’s Response to the Plainti/Respondent’s Replying Adavit. 39. The 2nd Defendant/Applicant led a supplementary adavit sworn on 17th May, 2024. 40. She reiterates that she has an arguable appeal with high chances of success and as such the suit property ought to be preserved pending the appeal. She adds that her late husband is the registered owner of the suit property and she is therefore the legal beneciary. 41. She deposes that she has been in occupation and/or possession of the suit property since it was purchased in the early 1970’s and that the rental premises were developed upon taking possession. She adds that the same is clearly indicated in the ground report. 42. She also deposes that she has a constitutional right to appeal after being dissatised with the judgement. https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/13292/eng@2024-11-21 4

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43. She further deposes that the Plainti/Respondent sold the suit property to third parties while the suit was pending in order to defeat justice and the counterclaim that she had led. 44. It is her deposition that the Plainti/Respondent has never been in possession of the suit property and he will therefore suer no prejudice if the orders sought are granted. 45. It is also her deposition that she is advised by her advocates on record that the Plainti/Respondent has no interest in the suit property and he is not deprived in any way from enjoying the fruits of the judgement. 46. It is further her deposition that the Plainti/Respondent has begun executing the judgement to her detriment as he has started issuing vacation notices to her tenants and has also subdivided and fenced a portion of the suit land. 47. She reiterates her averments in her adavit in support of her application and ends her deposition by stating that it is in the interest of justice that this Honourable Court grants the prayers sought. Issues for Determination. 48. The 2nd Defendant/Applicant led her submissions dated 22nd July, 2024 while the Plainti/ Respondent led his submissions dated 24th July, 2024. 49. The 2nd Defendant/Applicant relies on Order 42 Rule 6(2) of the Civil Procedure Rules and identies the following issues for determination; a. Whether the Applicant will suer substantial loss if stay orders are granted. (sic) b. Whether there was unreasonable delay in making the present application. c. 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. (sic) 50. With regard to the rst issue, the 2nd Defendant/Applicant relies on the judicial decision of George Mutisya v Faith Mwende Philip & another [2020] eKLR and submits that she stands to suer substantial loss if the Plainti/Respondent is allowed to proceed with execution of the judgement as she has built rental premises on the suit property where she has been collecting rent for more than forty years. 51. The 2nd Defendant/Applicant also submits that she is an old lady with no other source of livelihood apart from the income from the said rental premises. 52. With regard to the second issue, the 2nd Defendant/Applicant submits that the application under consideration has been timeously led. 53. The 2nd Defendant/Applicant also submits that after judgement was delivered on 22nd February, 2024, she lodged a Notice of Appeal on 27th February, 2024 and led the application under consideration on 18th March, 2024. She adds that this shows that she is determined to have the matter expeditiously concluded in accordance to the law. 54. On the third issue, the Defendant/Applicant relies on the judicial decision of Focin Motorcycle Co. Limited v Ann Wambui Wangui & another [2018]eKLR and submits that she is ready to provide security. She urges the Court to allow her application as prayed. 55. The Plainti/Respondent submits on whether the application satises the conditions for grant of orders of stay of execution. https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/13292/eng@2024-11-21 5

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56. The Plainti/Respondent relies on Order 42 Rule 6(2) of the Civil procedure Rules, the judicial decisions of Vishram Ravji Halai vs Thorton & Turpin Civil Application No. Nai 15 of 1990 [1990] KLR 365, James Wangalwa & another vs Agnes Naliaka Chesoto [2012] eKLR and submits that there are three conditions that the 2nd Defendant/Applicant must meet. 57. The rst condition requires the 2nd Defendant/Applicant to demonstrate that unless the orders sought are granted, she will suer substantial loss. 58. The Plainti/Respondent relies on the judicial decisions of Re Estate of Atanasio Karanu [2018] eKLR, James Wangalwa & another v Agnes Naliaka Chesoto [2012] eKLR, Socnac Company Limited v Nelphat Kimotho Muturi [2013] eKLR and submits that the 2nd Defendant/Applicant has not demonstrated that the execution process will create a state of aairs that will negate the appeal process. 59. The Plainti/Respondent reiterates his averments in his Replying Adavit and submits that stay of execution will only enable the 2nd Defendant/Applicant to continue collecting rent and prot from the suit property while he suers. 60. The second condition is whether the application has been led without unreasonable delay. The Plainti/Respondent relies on the judicial decision of Gianfranco Manenthi & another v Africa Merchant Assurance Company Limited [2019]eKLR, reiterates that the 2nd Defendant/Applicant had initially sought for thirty days to comply with the orders of the Court and submits that the ling of the present application came as a total surprise to him. 61. The Plainti/Respondent also reiterates that the 2nd Defendant/Applicant’s application only intends to delay him from enjoying the fruits of his judgement. 62. The third condition is payment of security for costs. The Plainti/Respondent relies on the judicial decisions of Gianfranco Manenthi & another vs Africa Merchant Assurance Company Ltd [2019] eKLR, Arun C. Sharma vs Ashana Raikundalia t/a Rairundalia & Co. Advocates & 2 Others [2014]eKLR and submits that the 2nd Defendant should furnish security. 63. The Plainti/Respondent submits that the 2nd Defendant/Applicant has not met the conditions provided for under Order 42 Rule 6(2) of the Civil Procedure Rules and urges the Court to dismiss the 2nd Defendant/Applicant’s application. Analysis and Determination. 64. I have considered the application, the response thereto, the supplementary adavit and the submissions. The only issue that arises for determination is whether an order of stay of execution of the judgement and decree issued by this Court on 22nd February, 2024 should be granted pending the hearing and determination of the appeal. 65. Order 42 Rule 6 (2) of the Civil Procedure Rules provides as follows; “ (2) No order for stay of execution shall be made under subrule (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 https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/13292/eng@2024-11-21 6

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(b) (3) 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. Notwithstanding anything contained in subrule (2), the Court shall have power, without formal application made, to order upon such terms as it may deem t a stay of execution pending the hearing of a formal application.” 66. For the Court to grant an order of stay of execution, the 2nd Defendant/Applicant must demonstrate that she led the application under consideration without unreasonable delay, that she will suer substantial loss if the orders sought are not granted and that she is willing to deposit security for the due performance of the decree. 67. On whether the application was led without unreasonable delay, a perusal of the Court record shows that judgement in the matter was delivered on 22nd February, 2024 while the application under consideration was led on 18th March, 2024. There is no doubt that the application was led timeously. 68. The 2nd Defendant/Applicant submits that she will suer substantial loss if orders of stay of execution are not granted as the Plainti/Respondent has already commenced execution proceedings. 69. In the judicial decision of James Wangalwa & another v Agnes Naliaka Cheseto [2012] eKLR the Court observed as follows on what constitutes substantial loss; “ 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 CPR. This is so because execution is a lawful process. The Applicant must establish other factors which show that the execution will create a state of aairs that will irreparably aect or negate the very essential core of the Applicant as the successful party in the appeal....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.” 70. The 2nd Defendant/Applicant contends that she has been in occupation of the suit property for a period exceeding forty years. She also contends that she has built rental premises on the land and that the Plainti/Respondent has already issued notices to her tenants to vacate the suit property. 71. The Plainti/Respondent on the other hand deposes that the 2nd Defendant/Applicant has not demonstrated that she will suer substantial loss if the orders sought are not granted. 72. In the judicial decision of Karungu v Masira & another (Environment & Land Case 540 of 2016) [2024] KEELC 5683 (KLR) (25 July 2024) (Ruling) the Court held as follows; “ 22. Similarly, in the case of Kabugua v Mwatata & another (Civil Appeal 1 of 2021) [2023] KEELC 15715 (KLR) (20 February 2023, this Court held that: Proof substantial (sic) loss is the cornerstone of applications for stay of execution. An Applicant must go a step further to prove such loss and not merely stating that he/she will suer substantial loss.” 23. It should also be noted that where there is an order of eviction, it is not enough to say that a party shall be evicted, as that is a decree that was issued after the https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/13292/eng@2024-11-21 7

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parties have been heard and a case is determined. A mere mention of imminent eviction is not proof of substantial loss.” [Emphasis Mine] 73. As was held in the above cited judicial decision, imminent eviction is not proof of substantial loss. In the present case, the 2nd Defendant/Applicant contends that her tenants are likely to be evicted from the suit property if orders of stay of execution are not granted. It is my view that this contention is not sucient to prove substantial loss. 74. On the issue of security for due performance of the decree, the Court in the judicial decision of Kenya Commercial Bank Limited vs Sun City Properties Limited & 5 Others [2012] eKLR held as follows; “ in an application for stay, there are always two competing interests that must be considered. These are that a successful litigant should not be denied the fruits of his judgment and that an unsuccessful litigant exercising his undoubted right of appeal should be safeguarded from his appeal being rendered nugatory. These two competing interests should always be balanced in a bid to balance the two competing interests, the Courts usually make an Order for suitable security for the due performance of the Decree as the parties wait for the outcome of the Appeal. I do not see, why the same should not be applicable in this case." 75. In the judicial Karungu v Masira & another (Environment & Land Case 540 of 2016) [2024] KEELC 5683 (KLR) (25 July 2024) (Ruling) the Court further held as follows; “ In the interest of justice, I therefore grant stay of execution pending appeal on condition that the Applicant deposits Kshs. 500,000/= in a joint interest earning account of the Advocates for the Plainti and the 1st Defendant within 30 days failure to which the order lapses.” Disposition. 76. The 2nd Defendant/Applicant has a right of appeal and should be allowed to exhaust this right. In the interest of justice and also in order that the appeal led is not rendered nugatory, I am inclined to grant orders of stay of execution of the judgement delivered on 22nd February, 2024. 77. Consequently, the application dated 16/3/2024 is allowed in the following terms; 78. a. Pending hearing and determination of the appeal led by 2nd the Defendant/Applicants herein, a stay execution of the entire judgement of this court delivered on the 22nd February, 2024 is hereby granted . b. The 2nd Defendant/Applicant shall deposit a sum of Kshs. 500,000/= as security for the due performance of the decree. The said amount shall be held in a xed joint interest earning account in the names of counsel for both parties within 30 days of the date hereof. c. In the event of failure to comply with (b) above, the orders of stay shall lapse. d. The costs of this application shall be in the cause. It is so ordered. DATED, SIGNED AND DELIVERED VIRTUALLY AT KERICHO THIS 21ST DAY OF NOVEMBER, 2024. L. A. OMOLLO JUDGE. https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/13292/eng@2024-11-21 8

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In the presence of: Mr. Mutai for the Respondent. Miss Wanjiru for the Defendant/Applicant Court Assistant; Mr. Joseph Makori. https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/13292/eng@2024-11-21 9

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