Ngoco & another v Njoroge

2. Upon the above Judgment being granted the Appellants led this Appeal dated 16/6/2025 with the prayers that the Appeal be allowed and that: i. 3. The Proceedings, Judgment and all consequential orders issued on the 21/5/29025 by the Honourable Trial Magistrate J.N.Nthuku be set aside and be substituted with orders dismissing the Respondents’ claim and allowing the Appellants’ claim in the counter-claim In an Application dated 16/6/2025, slightly being the one month after the Judgment was delivered the Appellants sought Orders that: 1. Spent. 2. Spent 3. Pending the determination of this Appeal this Court be pleased to issue a stay of execution of the Judgment, Decree and all consequential Orders issued on 21/5/2015 in Ol-kalou CMELC E013 of 2024. 4. This Court be pleased to issue any order it deems t and just in the circumstances. 4. The grounds upon which the orders are sought are that if the Decree is satised, the Appeal shall be rendered nugatory and this will be to the detriment of the Appellants and that no prejudice would be suered by the Respondents if the orders sought are issued. The same grounds are pleaded in the Adavit in support of the Application sworn on even date by the second Appellant, James Njuguna Ngoco who further deponed that devoid of any preservation orders from this Court, there is nothing stopping the orders from being implemented at any time in the pendency of this Appeal and again to the Appellants’ detriment. 5. The Deponent further said he is willing to ensure that the Appeal is disposed of as soon as practically possible in order not to cause inconvenience on the part of the Respondents or any interested parties. 6. He also assures the Court that he is willing to abide by whatever conditions the Court places pending hearing and determination of the Appeal. He nally depones (though unnecessarily) that the Appeal herein has high chances of success but of utmost importance that the instant Application has been timeously brought before Court and without delay. 7. The 2nd Respondent, Watene Njoroge, opposed the Application vide an Adavit in reply sworn on 14/7/2025 and led in Court on 16/7/2025 in which he depones that the principles upon which this Court may grant stay of execution pending Appeal are well settled as enshrined in Order 42 Rule 6 of the Civil Procedure Rules which are to demonstrate that: a. Substantial loss may result to the Applicant unless the order was made; b. The Application was made without unreasonable delay; and, c. Such security as the Court orders for the due performance of such Decree or Order as may ultimately be binding on him as has been given by the Applicant. 8. Also, unnecessarily, the 2nd Respondent falls in the same trap as the Appellants to the eect that the Appeal does not raise any arguable or triable issues with high chances of success. He further depones that the suit property was as well to be held in trust by the late Wangocho Njoroge on behalf of his siblings including the 1st and 2nd Respondents. 9. He further states that there is no evidence adduced to show that the Appeal would be rendered nugatory if the stay is not granted nor that substantial loss or prejudice would befall the Applicant. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18351/eng@2025-11-06 2

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10. He rightly says that their Advocates on record have advised him that right of Appeal must be balanced against an equally weighty right of the 2nd Respondent to enjoy the fruits of the Judgment delivered in his favour and that there must be a just cause for depriving the Decree holder of that right and that should the Court grant the stay though the Application is frivolous, vexatious and an abuse of the Court process, the Applicant should be ordered to provide sucient security for due performance of the Decree. 11. He says that the Application was led with the intention of denying the 2nd Respondents the fruits of the Judgment delivered in his favour. 12. He nally pleads that the Application is a desperate attempt by the Appellants to defeat the ends of justice and it would highly prejudice him should the Application be allowed hence his Application to the same being granted in its entirety and prays that it should be dismissed with costs. 13. The other Respondents did not le anything in opposition to the Application though the 1st Respondent participated through his Advocate Ms. Lyonah to oppose the Application through oral Submissions. 14. This Court, after listening to the Oral Submissions then retired to write the following Ruling. 15. The principles guiding the grant of stay of execution pending appeal are well settled. These principles are provided for under Order 42 rule 6(2) of the Civil Procedure Rules which provides: No order for stay of execution shall be made under sub rule (1) unless— 16. 17. (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 (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. Therefore, an Applicant for stay of execution of a Decree or Order pending Appeal is obliged to satisfy the conditions set out in Order 42 Rule 6(2), aforementioned: namely (a) that substantial loss may result to the Applicant unless the order is made, (b) that the Application has been made without unreasonable delay, and (c) that such security as the court orders for the due performance of such Decree or Order as may ultimately be binding on the Applicant has been given. In Bungoma High Court Misc Application No 42 of 2011 - James Wangalwa & Another vs. Agnes Naliaka Cheseto it was held that: The Applicant must establish other factors which show that the execution will create a state of aairs that will irreparably aect or negate the very essential core of the Applicant as the successful party in the Appeal. This is what substantial loss would entail.’’ 18. The court, in RWW v EKW [2019] eKLR, considered the purpose of a stay of execution order pending Appeal, in the following words: 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 https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18351/eng@2025-11-06 3

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upon to ensure that no party suers prejudice that cannot be compensated by an award of costs…………..Indeed to grant or refuse an Application for stay of execution pending Appeal is discretionary. The Court when granting the stay however, must balance the interests of the Appellant with those of the Respondent.” 19. Taking all the above factors into account and in order not to render the intended Appeal nugatory as well as to give eect to the overriding objective of the Civil Procedure Act, I nd and hold that the Applicants have fullled the requirements for grant of stay of execution pending Appeal as stipulated under Order 42 Rule 6 of the Civil Procedure Rules. 20. As to what substantial loss is, it was observed in James Wangalwa & Another v Agnes Naliaka Cheseto [2012] eKLR, that: No doubt, in law, the fact that the process of execution has been put in motion, or is likely to be put in motion, by itself, does not amount to substantial loss. Even when execution has been levied and completed, that is to say, the attached properties have been sold, as is the case here, does not in itself amount to substantial loss under Order 42 Rule 6 of the CPR. This is so because execution is a lawful process. The Applicant must establish other factors which show that the execution will create a state of aairs that will irreparably aect or negate the very essential core of the Applicant as the successful party in the Appeal…..... the issue of substantial loss is the cornerstone of both jurisdictions. Substantial loss is what has to be prevented by preserving the Status Quo because such loss would render the Appeal nugatory.” 21. In Nduhiu Gitahi vs. Warugongo [1988] KLR 621; 1 KAR 100; [1988-92] 2 KAR 100 the Court of Appeal expressed itself as follows: The process of giving security is one, which arises constantly. So long as the opposite party can be adequately protected, it is right and proper that security should be given in a way, which is least disadvantageous to the party giving the security. It may take many forms. Bank guarantee and payment into court are but two of them. So long as it is adequate, then the form of it is a matter, which is immaterial. In an Application for stay pending Appeal the court is faced with a situation where Judgement has been given. It is subject to Appeal. It may be armed or it may be set aside. The court is concerned with preserving the rights of both parties pending that Appeal. It is not the function of the court to disadvantage the Defendant while giving no legitimate advantage to the Plaintis. It is the duty of the court to hold the ring even-handedly without prejudicing the issue pending the Appeal. For that purpose, it matters not whether the Plaintis are secured in one way rather than another.....The aim of the court in this case was to make sure, in an even-handed manner, that the Appeal would not be prejudiced ......The Respondent is not entitled, for instance, to make life dicult for the Applicant, so as to tempt him into settling the Appeal. .....”. 23. In this case and having reasoned as above, I will order a stay of execution in the following terms: a. That the Order issued directing the 3rd Respondent to amend the Title Deed issued to the Appellants in respect of the suit property i.e. Nyandarua/Mawingu Salient/916 to reect that the Appellants hold it on their behalf and in trust for the 1st and 2nd Respondents is hereby stayed until the Hearing and nal determination of this Appeal. b. The order of Costs granted to the 1st and 2nd Respondents shall also be stayed until the Hearing and nal determination of this Appeal. c. The order of a Declaration made that the 1st and 2nd Appellants hold Nyandarua/ Mawingu/916, the suit property on their behalf and also in trust for the 1st and 2nd https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18351/eng@2025-11-06 4

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Respondents. (The 1st and 2nd Respondents are the bona de owners in part share of the suit land) shall await the outcome of this Appeal. d. The order of Permanent Injunction issued restraining the 1st and 2nd Appellants either by themselves, servants, agents or any other person from evicting the 1st and 2nd Respondents from the suit land i.e. Nyandarua/ Mawingu/ 916 shall remain in place until the Hearing and nal determination of this Appeal. e. The Appellant shall le and serve the Record of Appeal within next thirty (30) days of this Ruling; f. The Costs of this Application shall be in the cause shall be in the cause; g. This matter shall be mentioned on 16/12/2025 for Directions on the mode of disposal of the Appeal. RULING READ AND DELIVERED IN NYANDARUA THIS 6TH DAY OF NOVEMBER 2025. MUGO KAMAU JUDGE In the Presence of: Court Assistant: Samson. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18351/eng@2025-11-06 5

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