Portsmouth Holdings Limited v Kenya Railways Corporation (Environment and Land Case 7 of 2021) [2025] KEELC 7169 (KLR)

4. The respondent deposes that a filing of a notice of appeal does not guarantee an automatic right of stay, more so when no draft memorandum of appeal has been attached to the supporting afidavit, for the court to assess if the intended appeal has arguable points. 5. The respondent deposes that no demonstration has been made of any substantial loss or damage that would be sufiered if execution were to take place. 6. The respondent deposes that the applicant has not shown suficient cause why it should be deprived of the fruits of its judgment, other than seeking to protract the matter unnecessarily. 7. The respondent deposes that should the court be inclined to grant the orders of stay, then the entire decretal sum awarded as damages should be deposited in a joint interest-earning account held by advocates for the parties within a stipulated timeline. 8. The applicant relies on written submissions dated 29/7/2025. Reliance is placed on Selestica Ltd -vsGold Rock Development Ltd [2015] eKLR, James Wangalwa & Another -vs- Agnes Naliaka Cheseto [20212] eKLR, and Silverstein -vs- Chesoni [2002] 1KLR 867. 9. Stay of execution of a decree or order at the court which made the same, pending an appeal at the higher court, is governed by Order 42 Rule 6 of the Civil Procedure Rules. 10. The parameters to consider over and above the usual three conditions, namely delay, substantial loss, and security for due performance of the decree, should the appeal not succeed, include demonstration of suficient cause why the successful party should be kept away from the fruits of its own judgment. 11. The law has not set what amounts to maximum or minimum delay. It all depends on the circumstances of each case, for even one day's delay could be unreasonable. See Jaber Mohsen Ali & Another -vsPriscillah Boit & Another (2014) eKLR 12. Substantial loss is the cornerstone of a stay. See Kenya Shell Ltd -vs- Benjamin Karuga Kibiru &. Another [1982 -88] I KAR 1018. It has to be substantial with tangible and cogent evidence. In James Wangalwa -vs- Agnes Cheseto (supra), the court said that execution per se is a legal process and does not amount to substantial loss. The court held that a party must show other vitiating factors that will create a state of afiairs that will irreparably afiect or negate the very essential core of the application as the successful party in the appeal. 13. The purpose of a stay is to preserve the substratum of the appeal. It is not enough to allege substantial loss. In Samvir Trustee Ltd -vs- Guardian Bank Ltd, Nairobi Milimani HCC No. 797 of 1997, the court observed that an applicant must provide empirical and documentary evidence why the wheels or scales of justice should tilt in its favour; otherwise, the court must balance the two scales to ensure that no party is prejudiced or left at a disadvantage. 14. In RWW -vs- EKW [2019] eKLR, the court said that there are two competing rights between an unsuccessful and a successful party to the appeal, where one of whom has defined rights as opposed to the other, and should therefore not be unreasonably or without just cause denied the fruits of its own judgment. 15. Suficient cause, therefore, must be shown why the decree should be postponed or suspended. In Samvir Trustee Ltd -vs- Guardian Bank Ltd, (supra), the court said that filing of an appeal alone will never operate as a stay of execution, and all other circumstances must be taken into account to assess if there is suficient cause to grant the orders of stay. In New Ocean Transport Limited & Lesk Investments Limited -vs- Anwar Mohamed Bayusuf Limited eKLR Civil Application 16 of 2014, the https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/7169/eng@2025-10-22 2

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court held that the necessity for the ends of justice remains key and that restoration into the premises, even where an eviction order has been completed, had to be looked at. 16. In this application, the applicant does not specify, as indicated by the respondent, what aspect of the judgment it wants stayed. The status of the subject land has not been addressed by any of the parties. It is not clear whether the respondent has executed the decree. Be that as it may, the court is aware that even before the judgment, a temporary order of injunction had been issued against the judgment debtor. 17. The applicant is silent on what substantial loss it will incur should the decree not be stayed. 18. Security has to be ofiered. It is not enough to leave it to the court to determine or direct the nature of the security. See Focin Motorcycle -vs- Ann Wambui Wangui & another (2018) eKLR. Ofiering security is a sign of good faith. The security must be commensurate with the decree. In a money claim, it is not enough to say that the decretal amount is colossal. See Kenya Shell Ltd -vs- Benjamin Karuga Kibiru (supra). In this application, the applicant has not said that the respondent is incapable of refunding the sum should the appeal succeed. The four hurdles under Order 42 Rule 6 of the Civil Procedure Rules must be met conjunctively. 19. Looking at the totality of the circumstances, the court finds the applicant entitled only to the order for stay of the payment of the special damages, subject to depositing half of the decretal sum in a joint interest-earning account in the names of the two lawyers within 45 days from the date hereof; otherwise, the orders of stay shall lapse. 20. Orders accordingly. RULING DATED, SIGNED, AND DELIVERED VIA MICROSOFT TEAMS/OPEN COURT AT KITALE ON THIS 22ND DAY OF OCTOBER 2025. In the presence of: Court Assistant – Dennis Mr. Kiarie for the plaintifi/respondent present No appearance for the applicant/defendant HON. C.K. NZILI JUDGE, ELC KITALE. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/7169/eng@2025-10-22 3

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