Rafiki Limited v Moscone; Nativi & another

b. That this Honourable Court is respectfully requested to grant a stay of execution concerning the judgment and/or decree issued on 4th June 2025, pending the hearing and nal determination of the Application. c. May it please this Honourable Court to grant a stay of execution of the judgment and/or decree pending the hearing and determination of the intended appeal. d. That the costs of this application be provided. 3. The Application is grounded in the merits of the Motion and corroborated by the Adavits of the Applicants/Respondents. They assert that, dissatised with the outcome, the Applicants/ Respondents have led a Notice of Appeal and plan to pursue the appeal to its nal determination. In the absence of an order staying execution, however, the Respondents herein are free to proceed with enforcement of the judgment, thereby rendering the appeal moot. 4. The Respondent/Appellants oppose the application and have led a replying adavit, sworn by counsel representing the parties, Mr. Kinyua, deposed on September 23, 2025. 5. The application was canvassed through written submissions and the adavits led. 6. Based on the materials and submissions placed before me, the issues I frame for the determination of this court are whether to grant a stay of execution pending appeal to the Court of Appeal and who should bear the costs of the current application. 7. The Applicants contend that the legal framework for a stay of execution pending appeal is set out in Order 42, Rule 6 of the Civil Procedure Rules. They have also cited several judicial precedents supporting the framework laid out in Order 42, Rule 6 of the Civil Procedure Rules. They aver that a Notice of Appeal has been led, demonstrating a clear intention to appeal. The Appeal raises serious and triable issues, including the court’s erroneous decision to strike out the Respondents’ suits against the Appellants in MCELC No. 236 of 2022. If the Appeal succeeds, as it is believed it will, the Respondent herein would not be in a position to make full restitution. The Applicant is also faced with an adverse costs order resulting from the judgment. The enforcement of this decree would not only occasion substantial nancial loss but may also result in irreparable prejudice, rendering the Appeal nugatory, especially if the Respondents commence execution of the judgment. The execution of the judgment may place the Applicants in a position where they are compelled to settle before their right of appeal is ventilated. All these can be prevented by this Honourable Court exercising its discretion and granting a stay of execution of the judgment to preserve the subject matter and allow the Applicants herein to exercise their right to appeal. 8. Further, the Court, by granting a stay of execution of the judgment, will not occasion any substantial and irreparable loss to the Respondents herein. The intended right is not frivolous, and this Court should protect the right to be heard on appeal. The Applicants are willing to provide reasonable security as may be directed by the Court for the due performance of the decree, in line with Order 42, Rule 6(2)(c). This demonstrates good faith and readiness to abide by court orders. 9. In view of the foregoing, the Applicants believe they have satised all the conditions set out in Order 42, Rule 6 of the Civil Procedure Rules for the grant of a stay of execution pending appeal. 10. The application was led promptly, demonstrating a risk of substantial loss, raising arguable points of law, and the Applicants are willing to furnish security. Accordingly, the Applicants respectfully pray that the Honourable Court be pleased to allow the Notice of Motion dated 30 June 2025 and to grant the orders sought therein. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18620/eng@2025-12-10 2

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11. On their part, the Respondents contend that, apart from the orders directing Maria Grazia Moscone, Fiorenzo Girola, and Rosy Tettamanti to refer the dispute to arbitration and to pay the costs of the appeal and the costs of Raki Limited, Daniele Lococo, and Massimo Nativi in the Court below and in the appeals, there is nothing for the Appellants to execute. The order for payment of costs cannot be the subject of a stay of execution. Costs have not yet been taxed, and the Appellants have not led their Bills of Costs. 12. Respondents state that Maria Grazia Moscone, Fiorenzo Girola, and Rosy Tettamanti have not referred the dispute to arbitration, and no steps are underway to compel them to do so. The order referring the dispute to arbitration cannot prejudice the Applicants because any award by any arbitrator will still have to be referred to the Court for recognition and enforcement. It is at that point that the Applicants may request a stay of recognition and enforcement pending the determination of their respective appeals, if they have led them. 13. Respondents argue that Maria Grazia Moscone, Fiorenzo Girola, and Rosy Tettamanti have neither led nor served a Record of Appeal. The proceedings in the lower Court and the intended appeals are based on a misinterpretation of Article 65 of the Constitution. According to Article 65(2), Raki Limited's freehold interest in Kili/Jimba/1544 was automatically converted into a leasehold interest in 2014. According to the Respondents, therefore, the intended appeals are frivolous, incompetent, and vexatious. This is clearly explained in paragraphs 22, 23, and 24 of the letters dated 14 June 2025, addressed to the Applicants' Advocates and attached to Maria Grazia Moscone's Adavit sworn on 30 June 2025. 14. The Respondents aver that the applications for a stay of execution do not meet the criteria for granting such relief. The Court cannot stay the order striking out the suits in the lower Court, nor can it stay the order requiring payment of costs related to those suits. No prejudice will be caused to the Applicants, as they have not yet led their appeals, and the intended appeals will not be rendered meaningless, as arbitral awards will still require court recognition and enforcement. This would be the appropriate time to seek a stay, so the applications are premature. 15. I have reviewed the parties' submissions and averments, as well as the authorities cited. 16. Order 42, Rule 6 of the Civil Procedure Rules, provides: “ (1) (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 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 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. (3) Notwithstanding anything contained in subrule (2), the court shall have power, without formal application made, https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18620/eng@2025-12-10 3

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to order upon such terms as it may deem t a stay of execution pending the hearing of a formal application. (4) For the purposes of this rule an appeal to the Court of Appeal shall be deemed to have been led when under the Rules of that Court notice of appeal has been given.” 17. In RWW v EKW [2019] eKLR, the Court stated that: “ 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 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.” 18. As previously stated on June 4, 2025, this court issued a judgment concerning four appeals (E22, E23, E24, E25) of 2023, originating from a decision by the Honorable James Ong’ondo, Senior Principal Magistrate, dated April 25, 2023, in Malindi Chief Magistrate’s Environment and Land Case Nos. 236 and 237 of 2022. The four appeals—ELC Appeal Nos. E22 and E24 of 2023 shared identical parties and grounds, as did ELC Appeal Nos. E23 and E25 of 2023. The court rendered the following verdict: “ As a result, the appeals will succeed in the manner proposed below. Consequently, in light of the preceding discussions, these shall constitute the court's nal orders pertaining to the four appeals: In ELC Appeal Nos. 22 of 2023 and E24 of 2023: a. The appeals are granted to the extent that the Ruling dated April 25, 2022, is hereby set aside in its entirety, that the Appellant’s Notice of Motion applications dated October 11, 2022, be and are hereby allowed as prayed. b. The Respondents’ suits against the Appellants in the Lower Court are hereby struck out with costs, along with an order that the Respondents bear the costs. In ELC Appeal Nos. 23 of 2023 and E25 of 2023: 19. a. The reliefs sought in these appeals are allowed to the extent that the Ruling delivered by the learned Magistrate on April 25, 2023, is hereby set aside in its entirety. The Appellant’s Notice of Motion application dated October 11, 2022, is hereby granted as requested. b. The two suits pending in the Lower Court are stayed pending the referral and conclusion of arbitration, with costs to be borne by the Respondents.” Regarding the orders that constitute the impugned decisions currently on appeal before the Court of Appeal, the Applicants herein request a stay of any execution associated with the termination of two suits that formed the basis of ELC Appeal Nos. 22 of 2023 and E24 of 2023, as well as the referral of two suits, ELC Appeal Nos. 23 of 2023 and E25 of 2023, for arbitration. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18620/eng@2025-12-10 4

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20. For the suits that were struck out, there is nothing to show that any form of taxation has been undertaken. At least there was no evidence to indicate that such a move had been commenced or put in motion. 21. For referral to arbitration, there is also nothing to show that the process has commenced. If undertaken, the process shall be subject to recognition of the award, an event yet to occur and which may take time. 22. On the arguability of the appeal, this court cannot determine the same, having rendered itself as stated above. 23. As argued by the Respondents at this point, there will be nothing to stay. 24. Thus, the application dated June 30, 2025, is hereby dismissed with Costs. DATED, SIGNED, AND DELIVERED ELECTRONICALLY IN MALINDI ON THIS 10TH DAY OF DECEMBER, 2025. E. K. MAKORI JUDGE In the Presence of: Ms. Muyaa for the Appellants/Respondents Happy: Court Assistant In the absence of: Mr. Kamakia for the Applicants/ Respondents https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18620/eng@2025-12-10 5

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