Gori Investments Limited v Apostolic Faith Church & another (Environment and Land Case E004 of 2022) [2025] KEELC 8285 (KLR)

5. Order 42 Rule 6 of the Civil Procedure Rules provides for the jurisdiction of the court to grant orders of stay of execution pending appeal as follows; Stay in case of appeal [Order 42, rule 6] (1) 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 order set aside. (2) 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. 6. Imminent execution cannot in itself be a basis for grant of stay of execution pending appeal, as execution is a lawful process that follows grant of an order, judgment or decree by a court. Therefore, for an applicant to succeed in seeking stay pending appeal, they must demonstrate that they stand to sufier substantial loss; that they have sought for stay without unreasonable delay and show willingness to provide security for the due performance of the decree that may issue against them. 7. The Court of Appeal enunciated principles to be considered in determining whether to grant or refuse stay of execution pending appeal in Butt vs Rent Restriction Tribunal [1979]KLR as follows: 8. “ a. The power of the court to grant or refuse an application for a stay of execution is discretionary; and the discretion should be exercised in such a way as not to prevent an appeal. b. Secondly, the general principle in granting or refusing a stay is, if there is no other overwhelming hindrance, a stay must be granted so that an appeal may not be rendered nugatory should the appeal court reverse the judge’s discretion. c. Thirdly, a judge should not refuse a stay if there are good grounds for granting it merely because, in his opinion, a better remedy may become available to the applicant at the end of the proceedings. d. Finally, the Court in exercising its discretion whether to grant or refuse an application for stay will consider the special circumstances and its unique requirements. The court in exercising its powers under Order XLI Rule 4(2) (b) of the Civil Procedure Rules, can order security upon application by either party or on its own motion. Failure to put security of costs as ordered will cause the order for stay of execution to lapse.” In the instant matter, in the judgment made herein, the court made a declaration that the 1st defendant is the rightful owner of the suit property and ordered cancellation of the plaintifi’s title thereto. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/8285/eng@2025-11-26 2

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The plaintifi has expressed apprehension that the suit property may be sold or transferred by the 1st respondent which may defeat his appeal and render it nugatory. The 1st defendant did not allay those fears as no replying afidavit was filed. The 1st defendant is in occupation of the suit property and therefore the prejudice that may be sufiered may be atoned in costs. Therefore, it is clear to me that the plaintifi has demonstrated substantial loss. 9. In the premises I find and hold that the application dated 22nd July 2025 is merited and the same is hereby allowed to the extent that I hereby grant stay of execution of the judgment herein delivered on 14th July 2025 for 24 months. 10. It is so ordered. DATED, SIGNED AND DELIVERED AT KAKAMEGA IN OPEN COURT/VIRTUALLY THROUGH MICROSOFT TEAMS VIDEO CONFERENCING PLATFORM THIS 26TH DAY OF NOVEMBER, 2025 A. NYUKURI JUDGE In the presence of; Ms. Muthoni holding brief for Mr. Michuki for the plaintifi No appearance for the defendant Court Assistant: Delphine https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/8285/eng@2025-11-26 3

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