Gachiri & another v Muchai & another

d. That cost of the Application be borne by the Respondents. 2. The application is supported by the Adavit of John Kahiu Kiniiya Gachiri the Appellant herein who reiterates the contents of his Supporting Adavit sworn on 28/01/2025 where he depones that the Judgment delivered on 5/12/2024 by this Honorable Court dismissed the Appellant’s appeal with costs and that the Appellant led a Notice of Appeal dated 11th and served the parties. 3. The Appellant states the 1st Respondent has descended on the suit property intending to demolish the property as per the annexed photographs marked as JKKG2. He further stated that he has developed on the suit property a 2 storey building and the property is charged to Equity Babk for a sum of Kesh 5,000,000. That if the property is demolished the appeal shall be rendered nugatory. 4. He averred that he was ready to provide any security that the Court may order. That he stands to suer immeasurable loss. 5. The application is opposed through a Replying Adavit sworn by Veronica Waruburi Muchai 1st Respondent on 10/02/2025. The 1st Respondent’s Grounds of Opposition to the Motion are that the application for stay of execution pending appeal in relation to the Judgment and Decree of the Learned Magistrate in Thika MCELC 183 of 2019 and it relates to the property known as Thika/Municipality/ block 24/1098. 6. They aver that the decision of the Magistrate’s Court was the subject of the two appeals led before this Court being Thika ELCA E100 of 2022 and Thika ELCA E103 of 2022 which appeals were consolidated and Thika ELCA E103 of 2022 marked as the lead le. 7. That the consolidated appeals were heard and a Judgment delivered on 5th December 2024 whereby both Appeals were dismissed through a Decree issued on 22nd January 2022. Upon the dismissal the 1st Respondent issued a notice to the 1st Appellant of 45 days to remove all structures/developments from the suit property failure would lead to removal of the same without further reference to him. 8. The 1st Respondent aver that the 1st Appellant acknowledged the letter vide a response dated 13/12/2024 although the 1st Appellant did not remove his structures/developments nor seek for stay of execution within the gracious period which lapsed on 20/01/2025. That on 28/01/2025 the structures were removed by way of demolishing all structures on the suit property and the property was fenced o and since then the property has been in possession of the 1st Respondent. 9. He further avers that he has initiated the registration of the Court order for purposes of cancellation of the title held by the 1st Appellant. That whereas the 1st Appellant has led a Notice of Appeal and served it on 13/12/2024, that the Memorandum of Appeal annexed to the 1st Appellant’s Supporting Adavit does not disclose any prima facie points of law that can be argued in the intended appeal. That the Appellant seeks for equity to act in vain yet equity does not act in vain. 10. Further, the 1st Respondent contends that the 1st Appellant was indolent since he slept on his right to seek stay of execution pending appeal or remove his structures from the suit property and the 1st Respondent has urged the Court to dismiss the same with costs. 11. The parties canvassed the application by way of written submissions. I have considered the application, the Adavit in support and the Replying Adavit in opposition and I have considered the submissions by the parties. The singular issue for determination in this matter is whether the Appellant/Applicant has made out a case to justify grant of an order of stay of execution of this Court’s Judgment delivered on 5/12/2024. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18667/eng@2025-07-21 2

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12. The principles guiding the grant of a 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 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." 13. Further to the above, stay may be granted for sucient cause and that the Courts are now enjoined to give eect to the overriding objective in the exercise of their powers under the Civil Procedure Act or in the interpretation of any of its provisions. 14. Section 1A(2) of the Civil Procedure Act provides that “the Court shall, in the exercise of its powers under this Act or the interpretation of any of its provisions, seek to give eect to the overriding objective” while under Section 1B some of the aims of the said objectives are to facilitate; “the just determination of the proceedings; the ecient disposal of the business of the Court; the ecient use of the available judicial and administrative resources; and the timely disposal of the proceedings, and all other proceedings in the Court, at a cost aordable by the respective parties.” 15. An application for stay of execution of a Decree or Order pending appeal should satisfy the conditions set out in Order 42 Rule 6(2), to wit; 16. a. that substantial loss may result to the Applicants 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. See Antoine Ndiaye v African Virtual University [2015] eKLR. As to what constitutes substantial loss, the Court in the Case of James Wangalwa & Another v Agnes Naliaka Cheseto [2012] eKLR, observed thus: “ 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 Civil Procedure Rules. 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.” 17. In the instant case, the Applicant avers that they stand to suer substantial loss if stay of execution is not granted as he is the proprietor of LR Thika/Municipality/Block 24/1098 (the suit property) and that if the Court does not grant the Stay Orders sought the 1st Respondent shall proceed to transfer the parcel of land to her name. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18667/eng@2025-07-21 3

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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 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. The 1st Appellant in this matter appealed the Magistrate’s Court decisions which rule in favour of the 1st Respondent and this Court sit no ting on appeal in the matter found that the Learned Magistrate Honorable O. Wanyaga SRM made the right decision and found no reason to interfere with the Appeal. 20. The 1st Appellant through the instant application now seeks stay of execution of the Judgment of this Court entered on 5/12/2024 and all other consequential orders emanating therefrom. While the 1st Respondent oppose the application for stay of execution of the decree, he urges the Court to dismiss the application and also because the Appellant/Applicant has not led any appeal yet. 21. The Appellant has further argued that the suit property is presently charged in favour of Equity Bank (K) Limited to secure the sum of Kesh 5,000,000 advanced as a mortgage. That the developments on the suit property is valued at a conservative gure of Kesh 12,000,000. So the Appellant contends that unless execution of the Judgment and decree is stayed, the 1st Respondent will demolish and render to waste the Appellant’s house erected on the suit property. 22. The Appellant maintains that he has satised the threshold for grant of a stay of execution as he has demonstrated that he has an appeal that is not frivolous and that he is likely to suer substantial loss should stay not be granted. 23. For their part the Respondent contends that she has a valid Decree from the Court and is entitled to enjoy the fruits of her success before the Court by having the Decree in her favour satised. The Respondent further submit that the Appellant has not oered any security to warrant the grant of an order of stay of execution of the decree. The Court in considering an application for grant of stay of execution has to take into account the competing interests of both the Appellant and the Respondent and has therefore to endeavor to strike a balance such that no party is exposed to suer undue prejudice one way or the other. 24. The Court of Appeal in the Case of Absalom Dova v Tarbo Transporters (2013) eKLR succinctly enunciated the applicable principle when it stated as follows:“ The discretionary relief of stay of execution pending appeal is designed on the basis that no one would be worse o by virtue of an order of the Court; as such order does not introduce any disadvantage, but administers the justice that the case deserves. This is in recognition that both parties have rights; the Appellant to his appeal which includes the prospects that the appeal will not be rendered nugatory; and the decree holder to the decree which includes https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18667/eng@2025-07-21 4

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full benets under the decree. The Court in balancing the two competing rights focuses on their reconciliation…” 25. There appears to be a dispute that the application was brought with unreasonable delay of 45 days, at the same time I am not persuaded that the Appellant has demonstrated substantial loss; and also has not provided security although he has stated that he is willing to be bound by any conditions this Court may set. 26. I have looked at the Appellant’s Supporting Adavit and noted that there is no demonstration therein that the stands to suer substantial loss. If anything, the 1st Respondent has already stated that she has demolished the structure that was on the suit property having issued notice to the Appellant/ Applicant. No proof or sucient explanation has been given in the adavit on the prejudice that the Appellant is likely to suer should the stay of execution not be granted except for stating that he took a loan of Kesh 5,000,000 and that the developments on the suit property is valued at Kesh 12,000,000. 27. No Valuation Report was presented as proof and neither were documents to support claim of the loan presented as proof of the averment. I have also perused the Judgment of the Court dated 5/12/2024. As it stands, the Appellant’s appeal was dismissed and thus there is nothing to be stayed. 28. Indeed, in James Wangalwa & Another v Agnes Naliaka Cheseto [2012] eKLR observed 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 ...In the case of Silverstein N. Chesoni [2002] 1KLR 867, and also in the case of Mukuma V Abuoga quoted above. The last case, referring to the exercise of discretion by the High Court and the Court of Appeal in the granting stay of execution, under Order 42 of the CPR and Rule 5(2) (b) of the Court of Appeal Rules, respectively, emphasized the centrality of substantial loss thus:“… 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 ….” 29. As I already pointed out there is no prima facie evidence on the record that there is no appeal pending against the 1st Respondent at this moment. There is no Notice of Appeal led meaning that there is no substantive appeal on record. Therefore, it is not clear which appeal the Appellant/Applicant is stating that has high chances of success. 30. It is for the foregoing reasons that I nd no merit in the application dated 28/01/2025. The same is accordingly hereby dismissed with costs. It is so ordered. DATED, SIGNED AND DELIVERED AT THIKA THROUGH MICROSOFT TEAMS ON THIS 21ST DAY OF JULY 2025. ........................... MOGENI J JUDGE In the presence of:- https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18667/eng@2025-07-21 5

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Ms. Mariti holding brief for Mr. Kimani for the 1st Appellant 2nd Appellant – Absent Mr. D. Maina for 1st Respondent 2nd Respondent – Absent Melita – Court Assistant https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18667/eng@2025-07-21 6

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