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2. Spent. 3. That pending the hearing and determination of an intended appeal against the judgment and decree issued by this honourable court on 30th August, 2024 this honourable court be pleased to grant an order of stay of execution of the said judgment. 4. That the costs of this application be provided for. 2. The application is premised on the grounds on its face. The application is further supported by the afidavit of Patrick Newton Gikura Muraya, the director of the plaintifi/applicant sworn on even date. The plaintifi/applicant deposed that the efiect of the judgment delivered on 30th August, 2024 by Justice Wabwoto is to lose a portion of its land measuring 0.8 acres, and that being dissatisfied with the same, it has preferred an appeal to the Court of Appeal. The plaintifi/applicant further deposed that a notice of appeal was filed on time, and that the intended appeal is arguable and raises pertinent points of law. 3. That unless stay is granted, the 1st to 8th defendants/respondents will proceed to execute judgment, and the appeal will be rendered nugatory. Further, that the instant application has been filed without delay and that it is in the interest of justice that the application should be allowed. 4. The application was further supported by the afidavit of Joseph Kimani Mbugua the director of the 10th defendant/respondent which was sworn on 20th November, 2024. The 10th defendant/respondent deposed that the application is warranted to preserve the subject matter of the suit pending the hearing and determination of the appeal. Further, that stay would ensure that the appeal is not rendered nugatory and a mere academic exercise. 5. The application was opposed vide the replying afidavit of the 2nd defendant/respondent sworn on 4th November, 2024. The 2nd defendant/respondent deposed to the issues that were raised in the hearing of the main suit on acquisition and ownership of the suit property. He deposed that the plaintifi/ applicant has never occupied the 1.8 acres of land, and that there is no prejudice if the orders are not granted. He deposed that the suit property is fully developed by the 1st defendant/respondent and its members who will be prejudiced if the orders sought are granted. 6. The application was further opposed vide the replying afidavit of Kinyanjui Theuri, the learned counsel on record for the 9th defendant/respondent which was sworn on 29th October, 2024. The learned counsel deposed that the application is irregular for want of jurisdiction, and this court became functus oficio and cannot grant stay for a matter pending before the court of appeal. Further, he deposed that the application has not addressed the issue of security which is a pre-condition for issuance of stay orders. 7. The plaintifi/applicant filed a supplementary afidavit in response to the reply by the 2nd defendant/ respondent sworn on 10th August, 2025. The plaintifi/applicant reiterated the issues of occupation, use and development of the 1.8 acres comprising the suit property. He maintained that the defendants/ respondents will not sufier any prejudice if the orders are granted as they will continue occupying the one acre of land. 8. The application was canvassed by way of written submissions. The 5th and 6th defendants/respondents filed their written submissions dated 11th August 2025, where they raised two issues for determination as follows: a. Whether the court can issue stay of execution orders against declaratory and injunctive orders. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/5959/eng@2025-08-27 2

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b. Whether the principles of stay of execution of judgment have been met. 9. On the first issue, the 5th and 6th defendants/respondents submitted that the orders issued by the court are declaratory and injunctive in nature, and that there is nothing that will change on the ground. Reliance was placed in the cases of Johana Nyokwonyo Buti v Walter Rasugu Omariba & 2 Others [2011] eKLR, and Katiba Institute v President of the Republic of Kenya & 2 Others; Judicial Service Commission & 3 others (Interested Parties) [2020] eKLR. They further submitted that the court did not issue any positive order requiring the 1st to 8th defendants/respondents to take any action against the plaintifi/applicant which would warrant a stay. Rather, the court acknowledged their occupation of the portion of the suit property. 10. On the second issue, and while relying on the cases of James Wangalwa & Another v Agnes Naliaka Cheseto [2012] eKLR, and Machira t/a Machira & Co. Advocates v East African Standard [2002] eKLR, the 5th and 6th defendants/respondents submitted that the plaintifi/applicant has not proved loss to the requisite standard, and based on the site visit report, he stands to sufier no loss as it is not in occupation of the 1.8 acre portion of the suit property. They further submitted that the plaintifi/ applicant has not made any ofier for security in their application as required under Order 42 Rule 6 (2)(b) of the Civil Procedure Rules. 11. The plaintifi/applicant did not file its written submissions. Be that as it may, I have considered the application, the replies thereof and the written submissions filed by the 5th and 6th defendants/ respondents. The issue for determination is whether the plaintifi/applicant has met the threshold for grant of the orders of stay of execution pending appeal. 12. This court delivered judgment on 30th August, 2024 and directed cancellation of 1.8 acres out of LR. No. 6845/106 registered in the name of the plaintifi/applicant and in place the registration of the 1st to 8th defendants/respondents. The court also issued a permanent injunction restraining the plaintifi/ applicant and the 10th defendant from interfering with the occupation of the 1st to 8th defendants/ respondents on the suit property. Being dissatisfied with the said judgment, the plaintifi/applicant intends to appeal against the said judgment. 13. In doing so, the plaintifi/applicant has filed a notice of appeal, and while at it, filed the instant application seeking orders of stay of execution pending appeal. 14. Order 42 Rule (6) of the Civil Procedure Rules provides as follows:“ 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 suficient 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 orders set aside. No order for stay of execution shall be made under sub rule 1 unless:a) The court is satisfied that substantial loss may result to the 1st 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/2025/5959/eng@2025-08-27 3

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b) 15. 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 the case of Masisi Mwita versus Damaris Wanjiku Njeri [2016] eKLR, the Court of Appeal held that: “ The application must meet a criteria set out in precedents and the criteria is best captured in the case of “Halal & Another v Thornton & Turpin Ltd. where the Court of Appeal Gicheru J.A., Chesoni & Coker AG JA) held that: “The High Court’s discretion to order stay of execution of its order or decree is fettered by three (3) conditions namely:- suficient cause, substantial loss would ensue from a refusal to grant stay the applicant must furnish security, the application may 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 Wakolo v Straman E.A. Ltd.[2013] as follows:“In addition the appellant must prove that if the orders sought are not granted and his appeal eventually succeeded them the same shall have been rendered nugatory”. These twin principles go hand in hand and failure to prove one dislodges the other. The court notes with great humility the plaintifi/applicant agrees with it by citing the case of Vishram Rouji Halal v Thrornton & Turpour Civil Appeal No. 15 of [1990] KLR 365,” 16. For the court to order a stay of execution there must be suficient cause, substantial loss, no unreasonable delay and security for costs. It is not in doubt that the instant application has been made without delay. On whether there is suficient reason and substantial loss, the plaintifi/applicant argued that the efiect of the judgment of the court was that it would lose 1.8 acres of the suit property. Further, that the appeal raises pertinent issues of law and if the orders are not granted, the appeal will be rendered nugatory. From the averments of the plaintifi/applicant, there is no substantial loss that has been proven, as it is not in occupation of the suit property with the risk of eviction. What the plaintifi/ applicant is afraid of is the due process of the law taking place in terms of registration of the portion of the suit property in the names of the 1st to 8th defendants/respondent pursuant to the judgment of the court. I do also note that it was contended that the appeal is arguable and raises pertinent issues of law. On this issue, this court cannot comment for the reason that it was not afiorded a draft memorandum of appeal to ascertain this position. 17. In my view, the plaintifi/applicant has not established substantial loss to enable this court to find in its favour. Even more so, there has been no mention of security for costs, which leaves doubt whether the application has been made with genuine intentions. 18. From the above, this court finds no merit in the notice of motion dated 19th September, 2024. The same is hereby dismissed. Each party to bear their own costs. Orders accordingly. DATED, SIGNED & DELIVERED VIRTUALLY THIS 27TH DAY OF AUGUST, 2025. HON. MBOGO C.G. JUDGE 27/08/2025. In the presence of: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/5959/eng@2025-08-27 4

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Mr. Benson Agunga - Court assistant Mr. Ndurumo for the Plaintifi/Applicant Mr. Kingara for the 1st to 8th Defendants/Respondents Mr. Kinyanjui for the 10th Defendant/Respondent https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/5959/eng@2025-08-27 5

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