Stanhope Engineers Limited & another v Guandai; Mburu (Intended Interested Party) (Environment and Land Appeal E132 of 2024) [2025] KEELC 6370 (KLR)

to manage the suit premises is the former wife of Winfred Nyambura Karugu who has a limited grant of letters of administration ad colligenda bona. The Tribunal dismissed the reference and ordered that the Appellants/ Applicants vacate the suit premises within 7 days. Following this decision the applicant filed an application dated 13th September 2024 . They subsequently filed another application dated 4th December 2024 and another dated 5th December 2024 4. The applicants then filed a notice to withdraw the application dated 5th December 2024. On the 20th January 2025 , Mr Thuo in the absence of the Respondent informed the court that he wished to proceed with the application dated 13th September 2024 and which he wished to amend. It is this application in respect of which leave was given to amend and directions was given on 20th January 2025. The application prays for the following orders; a. That this Honourable Court be pleased to grant an order of stay of execution against the Judgement and orders of Hon. Patricia May delivered on 11th September 2024 by Hon Gakuhi Chege, pending the hearing and determination of this application. b. That this Honourable Court be pleased be pleased to grant an order of stay of execution against the Judgement and orders of Hon. Patricia May delivered on 11th September 2024 by Hon Gakuhi Chege, pending the hearing and determination of this appeal. c. That Mary Njeri Mburu be added as an interested party for reasons that she is presenting herself to have letters of administration ad colligenda to the estate of Karugu Guandai which she obtained using Letters of Administration ad litem. There is an application in court to revoke the said grant ad litem. The same contested letters of administration ad colligenda is already in possession of a third party who equally lays claim to it. d. Costs of this application 5. In response to the application, the respondent filed a detailed replying afidavit sworn by Mary Njeri Mburu in which she detailed the history of the dispute and averred that she has been managing the suit premises. She further told the court the appellants have rent arrears which is the reason she issued the notice of termination which the Tribunal upheld. It was further her contention that the Applicants were not being forthright as the Tribunal had considered all the issues including the issues of the grant. 6. Both counsels filed submissions which the court has duly considered. The Respondents counsel filed submissions in which she submitted at length on the applications dated 4th December 2024,5th December 2024 and finally the application dated 13th September 2024. Being that the application dated 5th December 2024 was withdrawn, by a notice filed on the 20th January 2025 and directions issued that the application which was to be heard is the application dated 13th September 2024 which was amended as the application dated 21st January 2025, I will only consider the submissions in respect of this application. 7. The twin issues that arise from this application is whether the court should grant stay of execution and whether the court should enjoin Mary Njeri Mburu as an interested party. 8. The courts jurisdiction for stay pending appeal is found in order 42 (6) (1) of the civil procedure rules which states 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 https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/6370/eng@2025-06-12 2

page 2 of 4

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 order set aside.” 9. Sub rule 2 says as follows: No order for stay of execution shall be made under subrule (1) unless— (a) the court is satisfied 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.” 10. These principles were summarized in Vishram Ravji Halai vs. Thornton & Turpin Civil Application No. Nai. 15 of 1990 [1990] KLR 365, wherein the Court of Appeal held that; “whereas the Court of Appeal’s power to grant stay pending appeal is unfettered, the High Court’s jurisdiction to do so under Order 42 rule 6 of the Civil Procedure Rules is fettered by three conditions namely, establishment of suficient cause, satisfaction of substantial loss and the furnishing of security. Further the application must be made without unreasonable delay.” 11. On the question of substantial loss the applicants aver that if they were to be evicted, they would lose the developments they have made on the suit property. They do not attach any evidence of the developments they have made. 12. Section 1 A and B of the Civil Procedure Rules places on the court a responsibility to give efiect to the overriding objectives which include; the just determination of the proceedings; the eficient disposal of the business of the Court; the eficient use of the available judicial and administrative resources; and the timely disposal of the proceedings, and all other proceedings in the Court, at a cost afiordable by the respective parties. In my view the court is called upon, while taking all these factors into account, to delve deeper to determine what the ends of justice would require in each individual case. 13. For the court to determine what amounts to the ends of justice in each case the applicants needed to present all the facts that would have enabled the court exercise discretion in their favour. They failed to do this. The applicants have not attached the proceedings in the lower court neither have they attached the impugned judgement . 14. The applicants have also not controverted the averments that they had rent arrears choosing instead to focus on the issue of who had a grant or not. Since the court will have an opportunity to delve into these issues in the main appeal I will not say any more on the issue at this stage. 15. The applicant have also sought that Mary Njeri be enjoined as an interested party. It is dificult to understand this prayer considering that they filed the reference in the Tribunal as a response to the notice she issued them so she is the party they have been dealing with in the Tribunal. Indeed, she is the one who has filed a Replying Afidavit to this application. 16. In the end I find that the application has no merit and is dismissed with costs to abide the outcome of the appeal. RULING SIGNED, DATED AND DELIVERED VIA MICROSOFT TEAMS ON 12TH OF JUNE, 2025 JUDY OMANGE https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/6370/eng@2025-06-12 3

page 3 of 4

JUDGE In the presence of: Court Assistant Catherine Mrs Chege for Appellant No appearance for Respondent https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/6370/eng@2025-06-12 4

page 4 of 4