Nganga & 4 others v Mande & 3 others

e. The costs of this application abide by the outcome of the Appeal. 2. The grounds on the face of the application are that judgement was delivered on 30th April, 2024 dismissing the Applicants case. The Applicants being aggrieved by the said judgement, led an appeal. 3. The application was supported by the adavit of PETER MUIRURI NGANGA sworn on 30th September, 2024. He reiterated the grounds on the face of the application and stated that this court vide its judgment of 30th April, 2024 dismissed the Applicants suit with costs. He stated that having been dissatised by the said decision, they preferred an appeal against the said decision. That on 13th May, 2024 through their advocates, they applied for certied typed copies of the proceedings, judgment and decree but the same has never been supplied despite having paid the requisite fee. He stated that it took time for them to obtain the certied types copies of proceedings, judgment and decree on 22nd August, 2024, where they applied for a certicate of delay which has never been availed to them. He further stated that they have an arguable appeal and that they had also led the notice of appeal within the statutory timelines. He also stated that the delay in ling the instant application was not intentional since the advocate that was handling the matter was away on maternity leave. He added that they believed that the court would grant them stay of execution upon ling of notice of appeal. 4. He went on to state that unless stay is granted, the intended appeal will be rendered nugatory. He also stated that they also stand to suer irreparable loss as the 1st Respondent have started eviction of the Applicants. Response 5. In response, the 1st Respondent led his Replying Adavit sworn on 28th October, 2024 where he averred that that despite the order of permanent injunction restraining the Applicants from trespassing the suit land, they have disregarded the said order and continued to trespass. He further averred that from the time the Applicants led and served the notice of appeal, no action had been taken. He averred that the he instructed his advocates to le an application at the Court of Appeal to have the notice deemed as withdrawn. He further averred that as advised by his advocates, there exists no appeal to warrant grant of the orders sought. 6. The 1st Respondent averred that the present application has been brought 5 months after judgment with no reason given for the delay. He also averred that the Applicants failed to show the loss they would be occasioned or any willingness to place security for grant of the prayers sought. He urged the court to dismiss the application. 7. The Applicants also led a Further Adavit sworn on 11th November, 2024 where they reiterated the contents of the supporting adavit. He added that the notice of appeal is still in force since no contrary orders have been granted. He also added that the decree is not a money decree thus the requirement to provide security for costs does not apply. Submissions 8. Counsel for the Applicant led his submissions dated 11th November, 2024 where they identied one issue for determination, whether the court should exercise its discretion and grant stay of execution. They relied on Order 42 Rule 6 of the Civil Procedure Rules and the case of Waithira & 13 others V Wambui (Environment and Land Appeal E027 of 2023) [2024] KEELC 960 (KLR) (22 February 2024) (Ruling) which cited with approval the case of Butt V Rent Restriction Tribunal [1979]. They urge the court to exercise its discretionary powers and grant stay of execution for the reason that they had lodged a notice of appeal but there was delay in availing of the certied proceedings and the https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/14130/eng@2024-12-18 2

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certicate of delay. They relied on Rule 84 (1) of the Court of Appeal Rules, 2022 and submit that Applicants’ appeal would be incomplete without the record of appeal which is comprised of the trial court’s certied copies of typed proceedings and judgment. 9. They submit that the Applicants have an arguable appeal and that the only reason why the same has not been instituted is because they are yet to be supplied with copies of judgment and proceedings. They add that the 1st Respondent despite being aware that the Applicants had lodged a notice of appeal, embarked on chasing the Applicants and their congregants from their churches which actions have caused and continue to occasion immense loss to the Applicants. They submit that unless stay is granted, the Applicants will suer irreversible harm and loss. Counsel cited the case of RWW V EKW [2019] eKLR and Matata & another v Rono & another (Civil Appeal E034 of 2024) [2024] KEHC 2799 (KLR) (19 March 2024) (Ruling). 10. On security for costs, they submit that the decree is not a money decree and therefore the requirement for payment of security for due performance of the decree is inapplicable in the instant application. They relied on the case of Gianfranco Manenthi & Another vs Africa merchant Assurance Co. Ltd [2019] eKLR. 11. Counsel for the 1st Respondent led 19th November, 2024 where he identied three issues for determination. The rst issue being whether the court has been approached without unreasonable delay. He submits that judgment was delivered on 30th April, 2024 and the application on 1st October, 2024. He submits that no explanation was given as to why it took 5 months to bring the instant application and added that the Applicants are guilty of laches. He relied on the case of Mohen Ali & Another V Priscillah Boit & Another E&L No. 200 of 2012 [2014] eKLR 12. The second issue is whether the Applicants shall suer substantial loss if the order sought is not granted. He submits that it is trite law that declaratory orders cannot be stayed upon delivery of judgment. He added that unless there was admission that the Applicants deed the injunction orders, they submit that there is nothing to stay. He cited the case of Mukuma V Abuoga (1988) KLR 645 and Pan African Insurance Co. Ltd V International Air Transport Association High Court No. 86 of 2006. He submits that they are unable to tell the substantial loss the Applicants stand to suer should the court not grant the stay orders. He added that there was no proof that they were evicted from the suit properties. Counsel relied on the case of Mohammed Salim t/a Choice Butchery V Nasserpuria Memon Jamat (2013) eKLR 13. The third issue is on security where he submits that the Applicants have not oered any security for appeal despite the mandatory provisions of Order 42 Rule 6(2) of the Civil Procedure Rules. He submits that failure to oer security is fatal to the application. He cited the case of Patel V Kenya Railway Corporation & 2 Others [2022] KEELC 14995 (KLR) Analysis and determination 14. The Court has considered the application and the main issue for determination is whether orders of stay of execution pending appeal should issue. 15. Order 42 Rule 6 (1)(2) of the Civil Procedure Rules provides as follows; “(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 https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/14130/eng@2024-12-18 3

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b. 16. such security as the court orders for the due performance of such decree or order as mayultimately be binding on him has been given by the applicant. In RWW V EKW [2019] eKLR the court held as follows: “...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 suers prejudice that cannot be compensated by an award of costs.” 17. For this court to grant an order of stay of execution, the Applicants must demonstrate that they led the application under consideration without unreasonable delay, that they will suer substantial loss if the orders sought are not granted and that they are willing to deposit security for costs. It is also noteworthy that the court should endeavor to balance the interests of both the successful party in litigation so as not to unnecessarily bar them from enjoying the fruits of judgment and that of the Appellant whose appeal may succeed and be rendered nugatory if stay of execution is not granted. On the issue of delay, a perusal of the court record shows that judgement in the matter was delivered on 30th April, 2024 and the Applicants led a Notice of Appeal led on 13th May, 2024. It is this court’s view that the same was within the statutory time provided to le an appeal. However, the Applicants failed to le the present application for the reason that the advocate handling the matter was on maternity leave and that the fact that they led the notice of appeal, it guaranteed stay. It is trite law that Order 42 Rule 6(1) of the Civil Procedure Rules, provides that an appeal is not an automatic stay of execution of the decree of a court and therefore the reason advanced by the Applicant is not warranted. In addition, the Applicants’ law rm could have easily assigned the matter to another advocate to proceed. 18. This court notes that judgment was delivered on 30th April, 2024 and the Application led on 14th October, 2024 translating to a period of about six months. It is also instructive to note that within that period, execution had not been commenced. This court is of the view that that the period does not amount to inordinate delay. 19. The Applicants have to also demonstrate that unless the court grants stay of execution orders pending appeal, they stand to suer substantial loss. The Applicants argued that the Respondents would proceed to evict their congregants from the church suit land unless orders of stay of execution are granted. It is this court’s view that since the Applicants have been in occupation of the land and could be removed if eviction proceeded, they demonstrated the substantial loss they would suer if stay is not granted. 20 On the issue of security of costs, although the Applicants have not expressed whether they are ready to oer security of costs, this court is of the opinion that they can be directed by the court to do so. In view of the same, this court shall exercise its discretion regarding the security of costs to be oered by the Applicants and direct that they do so within the time to be stipulated in this ruling if they intend to pursue the Appeal. 21. In the case of Kenya Commercial Bank Limited V Sun City Properties Limited & 5 Others [2012] eKLR the court 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 https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/14130/eng@2024-12-18 4

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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." 22. This court is of the view that grant of stay remains a discretionary order that must consider the fact that the court ought not to make a practice of denying a successful litigant the fruits of their judgment. 23. In the upshot, this court shall exercise its discretion and order of stay of execution of this court’s judgement delivered on 30th April, 2024 on the following conditions; a. The Applicants to deposit a sum of Kshs. 300,000/= as security for costs in a xed joint interest earning account in the names of both counsel for the parties within 14 days from the date of this ruling. b. The Applicants shall compile, le and serve a record of appeal within 60 days and move the Court appropriately towards the nalization of this Appeal within 180 days from the date of this ruling. In the event the Applicants fail to abide by any of the above stated two conditions within the xed time lines there will be an automatic lapse of the stay of execution herein irrespective of whether or not one condition shall have been met earlier than the failure of the latter. It is so ordered. SIGNED BY: HON. JUSTICE ANTONY O. OMBWAYO THE JUDICIARY OF KENYA. NAKURU ENVIRONMENT AND LAND COURT ENVIRONMENT AND LAND COURT DATE: 2024-12-18 10:21:20 https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/14130/eng@2024-12-18 5

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