Muthoni

The Applicant’s Case 3. The deponent averred that, being dissatised with the judgment delivered on 10th February 2025, they led an appeal that raises arguable issues and has a high likelihood of success. 4. He contended that the suit property belongs to a third party. The deponent is apprehensive that the Respondent will execute the judgment to their detriment, noting that the court directed the Deputy Registrar to execute all documents necessary to eect the transfer. He maintained that the application was led timeously and that they are willing to comply with any condition set by the court. 5. He contended that the appeal would be rendered nugatory if a stay of execution is not granted. The Respondent’s Case 6. The Respondent led grounds of opposition and a replying adavit dated 22nd April 2025 in opposition to the application. 7. The deponent contended that the appeal does not raise any arguable issues. She maintained that the trial court meticulously analyzed the evidence on record and conrmed the existence of a customary trust. She asserted that the Applicants claim that the suit land was sold to a third party does not override the court’s declaration of a trust. She pointed out that the Applicants failed to prove they would suer substantial loss if the decree were executed. She further maintained that the Applicants have not oered security for the due performance of the decree. 8. She contended that executing the judgment would not render the Appeal nugatory, as the Applicants can prosecute it even after the land is restored to the trust estate. She also noted that there has been an inordinate delay in ling the application. The Response 9. The application was canvassed by way of written submissions. The Applicant’s Submissions 10. The Applicants led their submissions dated 13th June 2025, which I have duly considered. As of the time of writing this ruling, the Respondent had not led her submissions as directed. Analysis And Determination 11. Having considered the application, the respective adavits, and the Applicants submissions, the only issue for determination is whether the Applicants have satised the conditions set out in Order 42 Rule 6 of the Civil Procedure Rules for the grant of a stay of execution pending Appeal. 12. Order 42 Rule 6 (1) and (2) of the Civil Procedure Rules outlines the guiding principles to be met for the grant of a stay as follows; 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 sucient 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 https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18391/eng@2025-12-10 2

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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. 6(2) No order for stay of execution shall be made under sub-rule (1) unlessa. 13. 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 such security of costs for the performance of such decree or order as may ultimately be binding on him has been given by the Applicant. The grant of an order of stay of execution is a discretionary one. In the case of Butt Vs Rent Restriction Tribunal (1982) KLR 417, the Court of Appeal set out guidelines on how a court should exercise its discretion as follows; “ The power of the court to grant or refuse an application for stay of execution is a discretionary power. The discretion should be exercised in such a way as not to prevent an appeal. The general principle in granting or refusing a stay is: if there is no overwhelming hindrance, the stay must be granted so that an appeal may not be rendered nugatory should that appeal court reverse the judge’s decision. A judge should not refuse stay if there are good grounds for granting it merely because in his opinion a better remedy may become available to the Applicants at the end of the proceedings. The court, in exercise of its discretion whether to grant or refuse an application for stay, will consider the special circumstances of the case and its unique requirements.” 14. Similarly, in the case of RWW Vs EKW (2019) eKLR, the Court held that; “ …the purpose of an application for stay of execution pending an appeal is to preserve the subject 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 the right against the success of a litigant who should not be deprived of the fruits of his/her judgment. The court is also called upon to ensure that no party suers prejudice that cannot be compensated by an award of damages.” 15. The Court is therefore called upon to balance both the rights of the successful party so as not to hinder her from the fruits of her judgment and those of the Appellants whose Appeal may succeed and be rendered nugatory if a stay of execution is not granted. 16. The purpose of a stay of execution is to preserve the substratum of the case. In the case of Consolidated Marine vs Nampijja & Another Civil App No. 93 of 1989 (Nairobi), the Court held that; “ The purpose of the application for stay of execution pending appeal is to preserve the subject matter in dispute so that the right of the appellant who is exercising his undoubted right of appeal is safeguarded and the appeal, if successful, is not rendered nugatory.” 17. The Court will now determine whether the Applicants have satised the conditions upon which the orders can be granted. Regarding the rst condition, that substantial loss may result unless stay orders are granted, the Applicants should not only state that they are likely to suer substantial loss; they must prove that they will suer substantial loss if stay orders are not granted. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18391/eng@2025-12-10 3

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18. In so nding, I am persuaded by the decision in Charles Wahome Gethi vs Angela Wairimu Gethi (2008) eKLR, where the Court of Appeal held that; “ ….it is not enough for the Applicants to say that they live or reside on the suit land and they will suer substantial loss. The Applicants must go further and show the substantial loss that the Applicants stand to suer if the Respondent executes the decree in this suit against them.” 19. What amounts to substantial loss was expressed by the Court of Appeal in the case of Mukuma vs Abuoga (1988) KLR as follows; “ Substantial loss is what has to be prevented by preserving the status quo because such loss would render the Appeal nugatory. 20. In Tropical Commodities Suppliers Ltd and Others Vs International Credit Bank Ltd (in Liquidation) (2004) 2EA 331, the court dened substantial loss as follows; “ Substantial loss does not represent any particular mathematical formula. Rather, it is a qualitative concept. It refers to any loss, great or small, that is of real worth or value as distinguished from a loss without value or a loss that is merely nominal….” 21. The Applicants contended that they will suer substantial loss if a stay of execution is not granted, as the Respondent will proceed to execute the judgment. The Applicants are apprehensive that the Respondent will execute the judgment because the court ordered the Deputy Registrar to execute all documents necessary to eect the transfer. The Respondent maintained that the Applicants can still prosecute the appeal even if the land reverts to the trust. 22. The purpose of a stay of execution is to preserve the substratum of the case. The execution complained of goes to the very core of the dispute and risks rendering the appeal nugatory. Based on the material before me, I nd that if the transfer is eected, the legal and proprietary status of the suit property will be altered. This court therefore nds that the Applicants have demonstrated that they will suer substantial loss if a stay of execution is not granted. 23. In an application for stay of execution pending Appeal, an Applicant must also satisfy the Court that the application has been made without unreasonable delay. It is not in dispute that judgment was delivered on 10th February 2025. The present application was led in Court on 24th March 2025. I nd that the application was led without unreasonable delay. 24. Regarding the last condition on the provision of security for costs, Order 42, Rule 6(2)(b) of the Civil Procedure Rules is couched in mandatory terms, requiring the Applicant to furnish security for the performance of the order or decree. In the case of Arun C Sharma vs Ashana Rakundalia T/A Raikundalia & Co. Advocates & 2 Others (2014) eKLR, the court held that; “ The purpose of the security under Order 42 is to guarantee due performance of such decree or order as may ultimately be binding on the Applicant. It is not to punish the judgment debtor….civil process is quite dierent because in civil process the judgment is like a debt, hence the applicant becomes a judgment debtor in relation to the respondent. That is why any security given under order 42 rule 6 of the civil procedure rules acts as a security for the performance of such decree or order as may ultimately be binding on the Applicants. I presume the security must be one which can serve that purpose.” https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18391/eng@2025-12-10 4

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25. The Applicants have expressed their willingness to abide by the terms as the Court may direct. 26. In the end, I nd that the Applicants have satised the conditions required for the grant of an order of stay of execution pending appeal. The upshot of the foregoing is that the application dated 24th March 2025 is allowed in the following terms; i. Stay of execution of the decree issued on 10th February 2025 is granted pending the hearing and determination of the Applicant’s Appeal. ii. The Applicants shall deposit the Kshs. 300,000/= in court within 45 days from the date of delivery of this ruling, and in default, the stay orders shall automatically lapse. iii. Costs to abide by the outcome of the appeal. RULING SIGNED, DATED, AND DELIVERED VIA MICROSOFT TEAMS THIS 10TH DAY OF DECEMBER, 2025. ……………………………………. HON. T. MURIGI JUDGE In The Presence Of:Angela for the Respondents Irungu for the Applicant Ahmed- Court Assistant https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18391/eng@2025-12-10 5

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