Kimani v Ngugi (Land Case Appeal E080 of 2023) [2026] KEELC 4757 (KLR)

4. That pending the hearing and determination of the Appeal herein, an order of stay of execution be and is hereby issued, staying the execution and/or enforcement of the Judgment and Decree delivered by Hon. Oscar M. Wanyaga (SRM) on 6/12/2023, together with all subsequent and consequential orders thereto. 5. That pending the hearing and determination of the Appeal herein, an order of temporary injunction be and is hereby issued restraining the Respondent, his agents, or servants from evicting the Applicant, demolishing any structures on the suit property, or in any way interfering with the Applicant’s possession of the suit property. 6. That the status quo currently obtaining on the suit property be maintained pending the final determination of the Appeal. 7. That this Honourable Court be pleased to make such other orders and/or directions as may be necessary for the ends of justice. 8. THAT the costs of and incidental to this Application be provided for. 2. The Application is supported by the grounds on the face of it and the Supporting Afidavit sworn by the Appellant/Applicant on even date. The deponent states that he was deeply aggrieved by the Judgment and substantive orders delivered against him on 6/12/2023 by Hon. Oscar M. Wanyaga (SRM) in Thika MCELC No. 170 of 2019, which granted a permanent injunction against his occupation of Plot No. 46, Mukarara Market, and awarded costs to the Respondent, a copy of which is annexed as ‘JMK-1’. In response, and acting with commendable dispatch, the Applicant preferred an Appeal by filing a Memorandum of Appeal dated 19/12/2023 containing eleven formidable and arguable grounds with high prospects of success, annexed as ‘JMK-2’. Demonstrating utmost due diligence, the Applicant applied for, obtained, and has since filed and served the Record of Appeal, as evidenced by the Title Page, Index, and electronic service confirmation email annexed hereto collectively as ‘JMK-3’. 3. The Applicant further avers that despite the pendency of the Appeal, the Respondent has extracted the Decree dated 19/01/2024, annexed as ‘JMK-4’, and is actively pursuing execution and/or enforcement thereof. According to the applicant the impugned Judgment and Decree are fundamentally defective, ambiguous, and a legal nullity. The Applicant contends that the trial Court's order directing the suit property to be located solely where the Plaintifi claims it constitutes an embarrassment to the Court and a legal absurdity; it purports to delegate a purely judicial function to a self-interested litigant while ignoring oficial reports from the Murang’a County Government confirming the non-existence of the property. 4. To demonstrate the imminent threat of substantial loss, the Applicant states that he remains in active and continuous possession of the suit property, where he had undertaken extensive structural developments long before the inception of the lower Court suit, as supported by the photographs annexed as ‘JMK-5’. He harbors apprehension that the Respondent will efiect a forcible eviction and demolish these structures, thereby rendering the intended Appeal nugatory. 5. Additionally, the Applicant deposes that the Respondent is a man of straw with no known assets, meaning any costs paid out or damages sufiered would be completely irrecoverable, resulting in a hollow pyrrhic victory. Consequently, the Applicant prays for a stay of execution and maintenance of the status quo, ofiering to provide such security for the due performance of the Decree as the Court may deem fit under Order 42 Rule 6(2)(b) of the Civil Procedure Rules, asserting that the balance of convenience tilts heavily in his favor and that the Respondent stands to sufier no prejudice. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4757/eng@2026-07-23 2

page 2 of 7

6. The Respondent filed a replying afidavit sworn 27/03/2026. Daniel Kamande Ngugi, deposes that he is the Decree-holder in Thika MCELC No. 170 of 2019 and is fully competent to swear the Replying Afidavit. He implores the Court to find the Applicant’s Notice of Motion dated 9/02/2026 legally untenable, devoid of merit, and a calculated attempt to delay the enjoyment of the fruits of his judgment. The Respondent deposes that the trial Court conducted a full hearing, meticulously evaluated all survey reports, documentary evidence, and expert testimony from County oficials before arriving at a well-reasoned decision confirming his lawful ownership of Plot No. 46, Mukarara Market. He further avers that the lower Court’s judgment is purely prohibitory and restraining in nature, meaning it does not sanction any positive execution or eviction capable of being stayed under Order 42 Rule 6 of the Civil Procedure Rules, rendering the application conceptually fiawed. 7. He denies that any imminent eviction or demolition is pending, calling the Applicant's narrative a blatant distortion manufactured to mislead the Court. He deposes that there are no recognizable or lawful developments on the suit property, asserting that any alleged structures are entirely fictitious or built unlawfully, which disentitles a trespasser from seeking equitable relief. 8. To firmly establish his right to the property and counter the Applicant's claims which he refers to as full of ambiquity, the Respondent attaches a certified copy of the formal survey plan and the final Decree from the lower Court, marked collectively as ‘DKN-1’, which highlights that the trial Court explicitly rejected the argument that the plot does not exist and rightly left technical boundary placement to the Murang’a County Government. 9. The Respondent dismisses the allegation that he is a man of straw as a scandalous, bad-faith attempt to prejudice the Court. He highlights that the Applicant filed this application after an inordinate and unexplained delay following the judgment delivered on 6/12/2023, exposing the current motion as a mere afterthought. The Respondent concludes by asserting that the balance of convenience overwhelmingly tilts in favor of protecting his proprietary rights as the successful litigant rather than aiding a non-compliant party. He underscores that the Applicant has completely failed to demonstrate any substantial loss, which remains the statutory cornerstone for a stay, and humbly prays that the application be dismissed with costs. 10. On 23/03/2026 the Court directed that the parties file their written submissions within 14 days after being served by the Respondent within 7 days with their response. Thereafter each party was given 14 days each to file their written submissions. As at the time of writing this ruling none of the parties had complied. None-the-less I will go ahead and analyse the pleadings filed. 11. Essentially, the Applicant moves the Court to grant an order staying the execution and/or enforcement of the Judgment and Decree delivered on 6/12/2023 by the trial Court (Hon. Oscar M. Wanyaga, Senior Resident Magistrate) in Thika MC.ELC No. 170 of 2019, alongside attendant orders for a temporary injunction and preservation of the status quo pending the hearing and determination of his Appeal. 12. According to my reading of the pleadings and afidavits, I am of the view that the following key issues if determined will address the issues in this application and the response filed. The issues are: i. Whether the interim orders sought are legally available under Order 42 Rule 6 of the Civil Procedure Rules given the purely negative/prohibitory nature of the trial Court's Decree. ii. Whether the Applicant has satisfied the canonical three-tier threshold required for the grant of a stay of execution pending Appeal specifically, the demonstration of substantial loss, due diligence, and the provision of security. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4757/eng@2026-07-23 3

page 3 of 7

iii. Whether the Applicant has made out a case for the grant of a temporary injunction or maintenance of status quo under Order 40 Rule 1. 13. The structural threshold of this application encounters an immediate legal impediment raised by the Respondent; the argument that a purely negative or prohibitory injunction is legally incapable of being stayed. The trial Court's judgment issued a permanent injunction restraining the Applicant from interfering, trespassing, or dealing with Plot No. 46 in Mukarara Market. 14. In our jurisprudence, the law is settled that a stay of execution cannot issue out of a negative order that commands nothing to be done, because there is nothing to execute. To stay a negative order is to grant a positive license to the applicant to commit the very act prohibited by the trial Court before the Appeal is ventilated. 15. This foundational principle was articulated by the Court of Appeal in case of Western College of Arts and Applied Sciences (WECO) v. Vogt [1985] KLR 357, where the learned judges stated verbatim: “ An order for a stay of execution is an order to restrain the Decree-holder from carrying out any threat to execute the Decree. If there is no such threat or if the Decree is not capable of execution, no order for a stay can be made. A mathematical or negative order cannot be stayed... A stay can only be granted where there is a positive order to do something, or to pay money." 16. This position was further entrenched in Kenya Wildlife Service v. Rift Valley Backpackers [2015] eKLR, where the Court observed: “ The purpose of a stay of execution is to suspend the enforcement of a positive order of the Court. Where a Court makes a negative order, such as a temporary or permanent injunction, or an order dismissing a suit, there is nothing to execute and an application for stay is mathematically and legally impossible." 17. However, this Court must look at the reality of the Decree. The trial Court went further under Order (b) to state that the plot shall be located where the Plaintifi claims it is located. While the Respondent argues this is purely injunctive, the extraction of the Decree and the threat to upend the Applicant's physical occupation introduces an element of enforcement. Where a negative order carries sequential or consequential enforcement mechanisms such as the physical displacement of a party in possession the Court may look beyond the strict nomenclature of the Decree to protect the subject matter. 18. Assuming that the Decree contains enforceable components, the application must pass the strict, mandatory requirements of Order 42 Rule 6(2) of the Civil Procedure Rules. The statutory elements are cumulative, not alternative. 19. The cornerstone of an application for stay is the demonstration that the applicant will sufier substantial loss unless the Court intervenes. The Applicant deposes that he is in active possession and has constructed substantial developments, as depicted in the photographs marked ‘JMK-5’. Conversely, the Respondent denies the existence of these structures and labels them fictitious. 20. The threshold for substantial loss requires more than a mere assertion of proprietary distress; it demands proof that the substratum of the Appeal will be permanently destroyed. In Silverstein v. Chesoni [2002] 1 KLR 867, the Court held: “ The applicant must establish that he will sufier substantial loss if the stay is refused. It is not enough to merely state that the Appeal will be rendered nugatory. The applicant must show https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4757/eng@2026-07-23 4

page 4 of 7

the specific nature of the loss and how it cannot be compensated by an award of damages if the Appeal ultimately succeeds." 21. Furthermore, the Applicant's allegation that the Respondent is a man of straw is crucial. If a Decreeholder lacks the financial capacity to return the parties to the status quo ante should the Appeal succeed, substantial loss is established. As stated by the High Court in National Industrial Credit Bank Ltd v. Aquatours Ltd [2002] eKLR: “ Where an applicant asserts that the Respondent is a man of straw and would be unable to refund the decretal sum or pay damages if the Appeal succeeds, the burden shifts to the Respondent to demonstrate his financial liquidity or possession of assets. If the Respondent fails to do so, the Court is entitled to infer that the applicant faces substantial loss." 22. The Respondent has failed to ofier any concrete evidence of his financial stability to counter this claim, meaning the risk of an irreversible financial shift remains live. 23. Order 42 Rule 6(2)(a) mandates that the application must be brought without unreasonable delay. The trial Court judgment was delivered on 6/12/2023. The Applicant filed his Memorandum of Appeal on 19/12/2023, showing initial speed. Yet, the present Notice of Motion was not filed until 9/02/2026 a gap of more than two years. 24. The Applicant attributes this timeline to compiling the Record of Appeal. However, an application for a stay of execution is meant to prevent immediate harm and should be filed concurrently with or immediately after the judgment. A delay of over twenty-four months without a compelling, documented explanation fails the statutory test of due diligence. In Habib Bank AG Zurich v. Birdi [1980] KLR 121, the Court firmly noted: “ Equitable remedies and discretionary orders such as a stay of execution are designed for the diligent. A party who sits on his rights for an inordinate period without a plausible explanation disentitles himself to the exercise of the Court’s discretion. Delay defeats equity” 25. The Applicant has stated his willingness to provide security for the due performance of the Decree under Order 42 Rule 6(2)(b). While this willingness counts in his favor, it cannot single-handedly salvage an application that fails the test of time and prompt filing. 26. Alternatively, the Applicant seeks a temporary injunction and a status quo order under Order 40 Rule 1 to prevent his eviction and the demolition of his properties. The legal standards here are governed by the classic principles set out in Giella v. Cassman Brown & Co. Ltd [1973] EA 358: “ First, an applicant must show a prima facie case with a probability of success. Secondly, an injunction will not normally be granted unless the applicant might otherwise sufier irreparable injury, which would not adequately be compensated by an award of damages. Thirdly, if the Court is in doubt, it will decide an application on the balance of convenience 27. The Applicant raises serious legal queries regarding Order (b) of the trial Court’s judgment, arguing that the learned magistrate delegated a judicial function by declaring that the plot would be located where the Plaintifi claims it is located, despite an oficial county report suggesting otherwise. This argument satisfies the first limb of Giella (supra) by showing a prima facie case with an arguable point on Appeal. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4757/eng@2026-07-23 5

page 5 of 7

28. However, the third limb the balance of convenience requires the Court to weigh the competing hardships. The Respondent is a successful litigant entitled to the fruits of his judgment. In Centatour International Ltd v. Commission for Higher Education [2006] 1 KLR 570, the Court observed: “ The balance of convenience generally tilts in favor of the successful party who has obtained a judgment in his favor. A Court should be slow to deny a successful litigant the fruits of his judgment through interlocutory injunctions unless there are compelling, overriding reasons of justice to do so." 29. Allowing a party to enjoy a status quo order after waiting over two years to move the Court would make a mockery of equity and unjustly block a successful litigant from his remedy. Disposal Orders 30. A critical review of the competing Afidavits reveals that while the Applicant has raised arguable points on Appeal regarding the structural ambiguity of the trial Court's Decree, his long delay in filing this application acts as a significant procedural barrier. A stay of execution is an urgent remedy designed to stop an immediate threat. Waiting over two years to seek protection while the Respondent extracted and sought to enforce the Decree undercuts any claim of an urgent, unmanageable crisis. 31. Consequently, the application fails to meet the strict legal requirements under Order 42 Rule 6(2)(a) due to unreasonable, unexplained delay. 32. However, because Order (b) of the trial Court's Decree contains a highly unusual open-ended boundary definition ("where the Plaintifi claims it is located") that could lead to peace disruptions or arbitrary land shifts during the pending Appeal, this Court must ensure that the subject matter remains identifiable while the Appeal goes forward. The Record of Appeal has already been compiled and served as evidenced by annexure marked as ‘JMK-3’, meaning the Appeal is ready for a final hearing. Therefore, the most balanced path is to deny the stay but order an expedited hearing of the main Appeal to resolve the land ownership dispute cleanly. 33. For these reasons, this Court issues the following orders: 1. The Application dated 9/02/2026 seeking a stay of execution and a temporary injunction pending Appeal be and is hereby dismissed. 2. To preserve the integrity of the judicial process and avoid public disorder, the Respondent is hereby prohibited from altering the physical boundaries or alienating the suit property known as Plot No. 46, Mukarara Market, pending the outcome of the Appeal. 3. The Appeal herein shall be heard on an expedited basis. 4. The Appeal shall be mentioned on 21/09/2026 for directions on disposal. Meanwhile the Appellant/Applicant is directed to ensure all parties are served with the Record of Appeal within 14 days from today failure to attend Court on the scheduled date Order (2) above shall lapse. 5. The costs of and incidental to this Application shall abide the outcome of the Appeal. Orders Accordingly. DATED, SIGNED AND DELIVERED AT THIKA VIA MICROSOFT TEAMS ON THIS 23RD DAY OF JULY 2026. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4757/eng@2026-07-23 6

page 6 of 7

………………….. MOGENI J JUDGE In the presence of: Mr. Warutumo holding brief or Mr. Waithaka for the Appellant/Applicant Respondent - Absent Mr. Melita - Court Assistant https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4757/eng@2026-07-23 7

page 7 of 7