Gatheri & 7 others

RULING 1. This ruling is in respect of the Appellants’ /Applicants’ Notice of Motion application dated 26th August 2025 seeking a stay of implementation of the Kiambu Liaison Committee’s determination in Complaint /Claim/Appeal No. CGK/KCLC/040 of 2025 dated 7th August 2025 and any consequential approvals by the Interested Parties pending the hearing and determination of the appeal herein. The Applicants also seek that this appeal be consolidated with Thika ELC Appeal No. E061 of 2025. 2. The application is anchored on the grounds set out on the face of the Notice of Motion and the supporting adavit of Prof. Francis Kimani Gatheri sworn on his own behalf and on behalf of the Appellants on the 26th August 2025. 3. The gist of the said adavit is that the Liaison Committee in its decision dated 7th August 2025 made a determination that the Appellant’s complaint/appeal was led out of time and dismissed the Appellants’ application for enlargement of time. He depones that the Appellants being aggrieved by the said determination have led an appeal dated 26th August 2026 which has overwhelming chances of success. 4. He further depones that the Respondents have demonstrated an intention to resume construction and unless the orders sought herein are granted, the cross-appeal shall be rendered nugatory. He prays that the appeal herein be consolidated with ELC Appeal E061 of 2025. 5. The application was met with resistance from the Appellant through their Grounds of Opposition dated 19th September 2025 in which they raise the following grounds: i. That the application is a non-starter, incompetent and fatally defective and bereft of any merit and warrants dismissal with costs. ii. That there is no order of the Physical and Land Use Planning Liaison Committee capable of being stayed as the determination of 7th August 2025 dismissed the Appellants’ complaint. It did not contain any positive order capable of being stayed. iii. That further, no approvals capable of being stayed have been issued by the 2nd - 5th respondents subsequent to the Committee’s determination of 7th August 2025. iv. That the application is purportedly brought under Section 63 of the Civil Procedure Act and Order 40 Rules 1(a) and 2(1) of the Civil Procedure Rules which provide for grant of temporary injunctions yet the application seeks stay of execution of the determination of the Liaison Committee. The same is thus grossly incompetent and cannot issue under the provisions of the law cited. v. That the Appellants have not demonstrated any irreparable injury they stand to suer if the application is not granted and that the balance of convenience tilts in their favour. vi. That the application does not meet the threshold for the grant of a stay pending appeal under order 42 Rule 6(2) of the Civil Procedure Rules . That the Appellants will not suer any loss if the application is denied. vii. That on the contrary, the 1st Respondent stands to suer substantial loss and grave prejudice if the Application is allowed , in particular the construction is a t a crucial stage and materials https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18636/eng@2025-12-11 2

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already on site, including timber, steel and cement will deteriorate due to prolonged exposure with steel and metal rusting and timber wasting due to rain ahus rendering them unt for use . There is also a risk of equipment being vandalized and/or stolen. viii. That the appeals sought to be consolidated do not raise any common questions of law or fact. ix. That whereas one appeal challenges the merits of the decision of the Physical Planning Liaison Committee rendered after full hearing, the other challenges a decision striking out a claim for having been led out of time. x. That the Appellants’ allegations that their appeal has overwhelming chances of success and will be rendered nugatory unless a stay is granted is misconceived. (sic) xi. That the application does not meet the threshold for grant of interim injunctive relief or stay pending appeal. xii. That the instant application is a continuation of the Appellants’ abuse of the court process where the Appellants persistently seek dierent orders in dierent forums with the object of frustrating the 1st Respondent ‘s ongoing construction despite having obtained all requisite development approvals. 6. The application was canvassed by way of written submissions and pursuant to the court’s directions, both parties led their submissions which I have read and considered in arriving at my decision. 7. A brief background in necessary into to put the application into perspective. Spiy Edges Enterprises, the Appellants/Respondents herein who are the registered owners of the property known as L.R No. 13136/440 in Ruiru town within Kiambu County, embarked on developing their property. 8. On 8th April 2025, the Applicants led a complaint before the Kiambu County Physical Planning Liaison Committee being Complaint No. 40 of 2025, alleging that the 1st Respondent was carrying out construction contrary to the approved plans. 9. On 8th May 2025, the Liaison Committee delivered its determination, ordering inter alia that the Enforcement Notice relied upon by the Applicants was invalid and that the 1st Respondent was at liberty to apply for fresh development approval of amended plans in line with section 67 of the Physical and Land Use Planning Act , 2019. 10. The 1st Respondent subsequently submitted amended development plans for approval by the County Government of Kiambu on 29th May 2025. The said plans were approved and the 1st Respondent was duly notied on 17th June 2025. The 1st Respondent was then issued with a construction permit and a Certicate of Compliance dated 20th June 2025 conrming that its project was compliant with the requisite laws. 11. In the meantime, the 1st Respondent eld the instant appeal faulting the Committee’s determination. 12. Upon learning that the 1st Respondent had been granted fresh approvals, the Applicants led another Complaint before the Liaison Committee being Complaint No. 40 of 2025 but the same was dismissed on 7th August on the grounds inter alia, that the same was led out of tine and that the Liaison Committee was functus ocio. It is the said dismissal that is the subject of the instant appeal. 13. The application therefore seeks an order of injunction and/or stay pending the hearing of the main appeal. The application was canvassed by way of written submissions and both parties led their submissions https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18636/eng@2025-12-11 3

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Analysis And Determination 14. Having considered the application, Grounds of Opposition and rival submissions, the following issues emerge for determination; i. Whether the application for injunction and/or stay of execution is well founded; ii. Whether the Applicant has met the threshold for an injunction. iii. Whether the Applicant is entitled to the orders sought. Whether the threshold for stay of execution/injunction has been met 15. Although the application is brought under Orde 40 of the Civil Procedure Rules, it is clear from the substance of the application that what is sought is a stay of execution. In view of the provisions of Article 159 (2) (d) which mandates the court to administer justice without under regard to technicalities, I shall not dwell on the technical inadequacies. 16. I shall now proceed to determine whether the Applicant has met the threshold for a stay of execution. 17. Order 42 rule 6(2) of the Civil Procedure Rules, 2010, prescribes the conditions under which a stay of execution may be granted. The provision reads: “ No order for stay of execution shall be made under sub-rule (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.” 18. The rule enunciates a triple threshold. First, it requires the Applicant to demonstrate that the refusal of a stay would occasion substantial and irreparable loss. Secondly, that the application has been advanced promptly, untainted by undue delay. And thirdly the provision mandates the furnishing of security to safeguard the eventual enforcement of the decree or order, thereby protecting the interests of the Respondent. 19. These requirements underscore the Court’s duty to strike a careful balance between preserving the rights of the Applicant pending appeal and ensuring that the Respondent is not prejudiced by the temporary suspension of execution. 20. In eect, the Court is called upon to exercise its discretion with circumspection, ensuring that equity, fairness, and judicial prudenceV converge in the assessment of whether a stay should issue. 21. In the instant case, the Applicant led the application for stay after a period of 3 almost weeks without any explanation. The Applicants have also not demonstrated by way of adavit that they will suer substantial loss. In the case of Raymond M. Omboga v Austine Pyan Maranga the court asserted as follows “ The Applicant seeks to appeal against the order dismissing his application. This is not an order capable of being stayed because there is nothing the Applicant has lost. The refusal simply means that the Applicant stays in the situation he was in before coming to court https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18636/eng@2025-12-11 4

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and therefore the issue of substantial loss that he is likely to suer and/or the appeal being rendered nugatory does not arise” 22. Similarly in this case, the Applicant will not suer substantial loss. On the other hand the 1st Respondent hand deponed that he was likely to suer substantial loss as the building materials were likely to deteriorate if left exposed to the elements for a prolonged period of time. Moreover, the fact that they failed to disclose that they obtained development permission soon after the determination appealed against also goes to show that they are not being sincere in their apparent quest for justice. 23. With regard to security for costs, even though the Applicants have in their submissions indicated that they are willing to abide by any conditions the court may impose in respect of security for costs, the supporting adavit is silent on this issue. 24. The 1st Respondent has also pointed out that there is no positive order capable of being stayed as the Committee did not order any of the parties to do anything or refrain from doing anything. In the case of Jeremiah M’njogu v District Land Registrar Meru Central & 5 Others ; H. Young (E.A) Ltd (Interested Party) [2021] KECA 1050 (KLR) the Court of Appeal pronounced itself as follows: “ The ruling giving rise to this application dismissed the Applicant’s application. This court has time and again stated that the court cannot stay negative orders. In Cooperative Bank of Kenya Limited v Banking Insurance & Finance Union Kenya [2015] eKLR this court ( Kantai J) held as follows: “An order for stay of execution pending appeal, is ordinarily an interim order which seeks to delay the performance of positive obligations that are set out in the decree as a result of a judgment. The delay of performance presupposes the existence of situation to stay called a positive order- either an order that has not been complied with or has partly been complied with” Further in the more recent case of Kenya Commercial Bank Limited v Tamarind Meadows Limited & 7 Others [2016] eKLR, this court expounded on stay of execution stating: “In Kanwal Sarjit Singh Dhiman v Keshavji Juvraj Shah [2008] eKLR, the Court of Appeal while dealing with a similar application for stay of a negative order, held as follows: “The second prayer in their application is for stay (of execution) of the order of the superior court made on 18th December 2006. The order of 18th December 2006 merely dismissed the application for setting aside the judgment with costs. By the order, the superior court did not order any of the parties to do anything or refrain from doing anything or to pay any sum. It was thus a negative order which is incapable of execution” 25. All in all, I am not persuaded that the Applicants have satised the conditions for stay of execution. 26. With regard to the prayer for consolidation, I note that some of the parties in this suit and ELCA No. E061 of 2025 are the same, the cause of action and the subject matter are also the same. I am therefore of the view that in order to save judicial time and resources, the two appeals ought to be consolidated. 27. Save for the prayer for consolidation which l hereby grant, the application for stay of execution lacks merit and it is dismissed with costs to the Respondents. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18636/eng@2025-12-11 5

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DATED, SIGNED AND DELIVERED VIRTUALLY THIS 11TH DAY OF DECEMBER 2025. J. M ONYANGO JUDGE In the presence of: Ms. Maina for Mr. Nyakundi for the Appellants Mr. Isahi for the 1st Respondent Ms Wanjiku for the 2nd, 3rd and 4th Respondents. Court Assistant: Hinga https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18636/eng@2025-12-11 6

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