Muthondu v District Surveyor Thika & 6 others (Environment and Land Appeal E092 of 2025) [2026] KEELC 4000 (KLR)

Nyamangara/2776, Ngenda/Nyamangara/2777, Ngenda/Nyamangara/2778 be maintained pending the determination and outcome of this application. 4. That this Honourable Court be pleased to order that the status quo including but not limited to relating to the ownership and boundaries of properties titles numbers: Ngenda/ Nyamangara/2776, Ngenda/Nyamangara/2777, Ngenda/Nyamangara/2778 be maintained pending the determination and outcome of this appeal. 5. That this Honourable Court be pleased to give a temporary injunction restraining the Respondents whether in person or through their servants or oficers from interfering with the Appellant’s possession of property title number: Ngenda/Nyamangara/2776 as is on the ground, and from interfering with or altering the boundaries of properties titles numbers: Ngenda/Nyamangara/2776, Ngenda/Nyamangara/2777 and Ngenda/Nyamangara/2778 pending the determination and outcome of this application and appeal. 2. The application is premised on the grounds on the face of it and the supporting afidavit of Joseph Igoto Muthondu sworn on even date. 3. The Appellant/Applicant asserts that he filed MELC Case No. E034 of 2022 in the trial court seeking inter alia the revocation of three title documents namely Ngenda/Nyamangara/2776, Ngenda/ Nyamangara/2777 and Ngenda/Nyamangara/2778 and consequentially the issuance of duly rectified titles refiecting the correct acreage. 4. The Honourable R.N. Nganga, Senior Resident Magistrate, by a judgment delivered on 10th July 2025 dismissed the suit with costs. The trial court thereafter issued a stay of execution which lapsed on 11th August 2025 thus necessitating the instant application to stay execution of the judgment and to maintain the status quo. 5. The Applicant contends that he has been in possession Ngenda/Nyamangara/2776 since 2012 and is apprehensive that he stands to sufier substantial loss if the impugned judgment is executed. 6. The Applicant further contends that he has an arguable appeal with high chances of success and that the instant application has been brought without delay and thus beseeches the Court to grant the Orders sought. 7. In opposition, the Respondents filed a Replying Afidavit sworn by Stephen Chege Kiari, on behalf of the 4th 5th and 6th Respondents on 16th September, disputing the Application contending that it was filed with ill intention and to delay the course of justice 8. The Respondents contend that there were no stay orders issued and after the judgment was delivered and thus they proceeded transfer Ngenda/Nyamangara/2778 to Isaac Lawrence Njoroge and Bridget Kabura Ngugi and thus the application was overtaken by events. 9. It is the Respondent’s contention that the application is devoid of merit and ought to be dismissed with costs. 10. The Applicant filed a further supporting afidavit sworn on 31st October 2025 in response to the respondents’ replying afidavit and reiterated that the trial court issued stay orders after the judgment was delivered. 11. The application was canvassed by written submissions. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4000/eng@2026-05-29 2

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12. Having considered the application, the replying afidavit in opposition, the parties respective submissions and the relevant authorities, the key issue that emerges for determination is: whether the Applicant has met the threshold for the grant of an order of stay of execution pending appeal. Analysis and Determination 13. Order 42 rule 6 of the Civil Procedure Rules is the gateway through which all applications for stay of execution pending appeal must pass. It provides: “ 6. Stay in case of appeal [Order 42, rule 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 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. (2) No order for stay of execution shall be made under subrule (1) unless— (a) the court is satisfied 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” 14. Essentially, the rule refiects a deliberate legislative balance between the competing interests of a successful litigant entitled to the fruits of judgment and an unsuccessful party seeking to preserve the subject matter of an appeal from being rendered futile before appellate determination. 15. The cumulative nature of these requirements has been repeatedly emphasised in the jurisprudence, the courts having consistently held that each operates as an indispensable safeguard against the routine suspension of lawful decrees. 16. The first and most central consideration is that of substantial loss. 17. In Kenya Shell Limited v Benjamin Karuga Kibiru & Another [1986] KLR 410, the Court of Appeal observed that substantial loss is the cornerstone of the jurisdiction under Order 42 rule 6, for without evidence of such loss, there exists no proper basis upon which a successful litigant may be deprived of the benefit of a lawful decree. The Court further emphasised that substantial loss is not established through generalized apprehension or dissatisfaction with the judgment, but through https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4000/eng@2026-05-29 3

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cogent demonstration of prejudice of such character that, if stay is withheld, the appeal would be rendered nugatory or its eventual success hollow in practical efiect. 18. The same principle was echoed in James Wangalwa & Another v Agnes Naliaka Cheseto [2012] eKLR where the Court held that the mere commencement of execution proceedings does not, in itself, amount to substantial loss, execution being a lawful consequence of judgment. What must instead be shown is the existence of circumstances demonstrating that the execution threatened would irreparably afiect the applicant’s position or create a state of afiairs incapable of restitution should the appeal ultimately succeed. 19. In the present application, the Applicant expresses apprehension that the suit properties may be transferred to third parties before the intended appeal is heard and determined, thereby irreversibly altering the substratum of the dispute. 20. The Respondent, however, advances a markedly difierent position. Through the replying afidavit, it is maintained that the suit properties have already been sold to one Isaac Lawrence Njoroge and that the application has consequently been overtaken by events. 21. That contention must, however, be considered against the undisputed fact that the trial court granted a 30 day stay of execution upon delivery of its ruling. The purpose of that order was plainly preservatory, namely, to maintain the status quo pending recourse to the appellate process. 22. In those circumstances, the Respondent’s assertion that the suit properties were sold to a third party during the subsistence of that stay order raises a matter of considerable legal consequence. A transaction undertaken in the face of an extant court order cannot, at least at this stage, be invoked as a basis for contending that the application has been overtaken by events. 23. In view of the foregoing, the Court is satisfied that the Applicant has demonstrated suficient cause for the grant of stay pending appeal. The apprehended transfer of the suit properties to third parties poses a real risk to the substratum of the intended appeal, particularly in light of the unresolved question surrounding the alleged sale said to have occurred during the subsistence of the trial court’s stay order. Unless preserved, the subject matter may be placed beyond the efiective reach of the appellate process. 24. Accordingly, the application is allowed on condition that the Applicant deposits security in the sum of Ksh. 300,000/- within thirty (30) days from the date hereof. In default of compliance, the order of stay shall lapse automatically without further order of the Court. It is so Ordered. DATED, SIGNED AND DELIVERED, AT THIKA THIS 29TH. DAY OF MAY 2026 …………………….. J. M. ONYANGO JUDGE In the presence of: Appellant – Absent Ms. Njuguna for the 1st, 2nd and 3rd Respondents Court Assistant : Hinga https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4000/eng@2026-05-29 4

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