Nagib v Kariuki & 3 others

appeal to issue; that the appellant has no arguable appeal as he admitted being a trespasser during the hearing and has not oered security for due performance of the decree. 3. On the 16th October 2025, the heard counsel for the appellant, 1st & 3rd defendants and 2nd defendant and directed inter alia that respondents le and serve replies in seven days and appellant be at liberty to respond to new issues of facts, and that the appellant to le and serve submissions in twenty one (21) days and respondents in fourteen (14) days after service. I have perused the CTS and physical record and no further replies have been led since that date, and the appellant has to date not led any submissions. However, the learned counsel for the 2nd defendant and 1st & 3rd defendants have led their submissions dated the 24th November 2025 and 25th November 2025 that the court has considered. 4. The main issue for determination is whether the appellant has met the threshold for the court to issue the order of stay of execution pending the hearing and determination of the appeal. 5. The court has considered the grounds on the notice of motion and grounds of opposition, adavit evidence, submissions by the learned counsel, superior courts decisions cited and come to the following conclusions: a. Though the learned counsel has at paragraph 2 of their submissions indicated that they responded to the application hrough the replying adavit of Mike Sego Manyarkiy, no such adavit has been traced on the CTS or the physical record. Indeed the CTS shows that the submissions dated the 24th November 2025 and led on that same date at 13.15.43 is the only document so far led by the State Law Oce in this matter. I have noted the learned counsel for the 1st & 3rd respondents has at paragraph 1 of their submissions alluded to the 2nd respondent’s replying adavit of Mike Sego Manyarkiy, which could probably mean the State Law oce served it without ling it. As Order 51 Rule 14(1) of the Civil Procedure Rules require any respondent desires to oppose an application to le either or a combination of a notice of preliminary objection or replying adavit or grounds of opposition, and none was led by or for the 2nd respondent, then it will be taken that the 2nd respondent does not challenge the facts presented by the appellant. Accordingly, only that portion of the 2nd respondent’s submissions that addresses the issues of law will be considered by the court. b. Though the learned counsel for the 1st & 3rd respondents had on 16th October 2025 indicated they would be ling a replying adavit in seven days, none was led. The grounds of opposition led in response to the application essentially means they did not challenge the facts presented by the appellant. c. That a perusal of the judgement delivered by the trial court conrms that the court found in favour of the plainti, in respect of Mombasa/Block 1/MS/474, and inter alia awarded her Kshs.500,000 and 300,000 as general damages and mesne prots respectively. The appellant, who was the 1st defendant before the trial court, claims in his application that his appeal has a high chance of success, and if stay is not granted it will be rendered nugatory, as he is likely to be evicted and his structures demolished at the expiry of 90 days. While no respondent has disputed that fact as no replying adavits were led in reply, it is indeed a fact the eviction from the suit property where he has been for years and the demolition of the structures thereon at the expiry of 90 days from19th September 2025, would amount to substantial loss, were he to later succeed on appeal. d. The appellant led the instant application on 9th October 2025, which was on the 20th day after the judgement of 19th September was delivered. There was therefore no undue delay in the ling the application. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18355/eng@2025-12-17 2

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6. e. Though the appellant has not oered any security for due performance of the decree in his application, the court is with discretion in appropriate cases to determine the condition to attach to the issuing of stay orders. In this instance, I am of the view that it would be fair and just for stay of execution pending determination to be granted on condition that the appellant deposits Kshs.1,000,000 in an interest earning account in the joint names of his counsel and that for the 1st & 3rd respondents, or with the court, in thirty (30) days from today, as security for due performance of the decree. f. That under section 27 of the Civil Procedure Act chapter 21 of Laws of Kenya, costs follow the event unless where otherwise directed for good reason by the court. in this instant matter, though the appellant has emerged successful in his application, I nd it just and fair for costs to abide the outcome of the appeal Flowing from the foregoing conclusions, the court nds and orders as follows: a. That the appellant’s application dated 9th October 2025 has merit and stay of execution order in terms of prayer (2) is granted, pending the hearing and determination of the appeal, on condition the appellant deposits Kshs.1,000,000 [one million] in an interest earning bank account in the joint names of his counsel and counsel for the 1st & 3rd respondents within thirty (30) days. b. That should the appellant fail to comply with the condition, the stay order to lapse automatically. c. Costs to abide the outcome of the appeal. It is so ordered. DATED, SIGNED AND VIRTUALLY DELIVERED ON THIS 17TH DAY OF DECEMBER 2025. S. M. KIBUNJA, J. ELC MOMBASA. In The Presence Of: Appellant: No Appearance Respondents : Mr Waga For 2Nd Respondent Mr. Origi For 3Rd Respondent Kalekye-court Assistant. S. M. KIBUNJA, J. ELC MOMBASA. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18355/eng@2025-12-17 3

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