Kome & 41 others v Islam (Environment and Land Appeal E167 of 2025) [2026] KEELC 3584 (KLR)

3. The Appellants filed a replying afidavit sworn by Peter Kimanzi on behalf of the other Appellants. He deponed that the application was meant to intimidate the Appellants to prosecute their appeal which had high chances of success. 4. That the Respondents had not proved how the appellants are persons that would not be able to meet the costs that may be awarded in the appeal. 5. That the Applicants had not demonstrated any special circumstances to warrant the grant of order for security of costs. Submissions 6. The applicant filed submission dated 1st April 2026 and relied on the provisions of Order 26 Rule 1 of the Civil Procedure Rules and a number of case laws such as Gatirau Peter Munya Vs Dickosn Mwneda Kithinji &2 Others [2014] eKLR. The applicant submitted that despite being the successful litigant in the BPRT, the Appellants had failed to satisfy the costs in the said matter and failed to settle rental arrears. That further this court had directed, inter alia, that the parties herein do reconcile on rent. Which the Appellants had failed to do so nor provided any documents to challenge the statement of facts pointing to the arrears. Counsel submitted that the Appellants were persistent rent defaulters were taking advantage of the intended appeal to avoid avoiding to pay rent and settle the outstanding accumulated rent arrears while still occupying the premises. 7. The Respondent/Appellants filed submissions dated 30th April 2026 where they submitted that the applicant had not discharged the burden of prove to substantiate his claim that the appellants were incapable of paying costs. They submitted that they were persons owning businesses within the suit premises and derive sustainable income capable of satisfying any costs that might arise out of the appeal. Analysis and determination 8. I have considered the application, the central issue for determination is whether the application is merited as to the grant of the orders sought The court finds that there is no application for stay of execution before it. The deposit of Security Order 42(6) is a condition for grant of stay. There is no requirement for deposit of the security as a condition for appeal. Stay of Execution is provided under Order 42 Rule 6 of the Civil Procedure Rules 2010 as follows; i. “No appeal or second appeal shall operate as a stay of execution or proceeding 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 suficient 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. ii. No order for stay of execution shall be made under Subrule (1) unless; https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3584/eng@2026-06-11 2

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9. a. the court is satisfied that substantial loss may result to the applicant unless the order is made and thatn 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. It is important to note that the Appellants did not apply or file any application for Stay of Execution to warrant this Court’s intervention. I hold the view that the Respondent’s application is therefore premature and this court lacks legal ground as which to intervene as its basis to order for security is hinged under Order 42 (6) of the Civil Procedure Rules. Final disposition Consequently, I make the following orders; i. The application dated 2nd February 2025 to be without merit for the foregoing reasons and is hereby dismissed with costs to the appellants in the cause. It is so ordered. DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI ON THIS 11TH DAY OF JUNE 2026. MOHAMMED N. KULLOW JUDGE Ruling delivered in the presence of: Prof Heshiro for the Applicant/Respondent Ms. Benedett for the Appellants/Respondents Philomena W Court Assistant https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3584/eng@2026-06-11 3

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