Mbogo v Nyota t/a Nakawa Agencies & 4 others

2. That this Honourable Court be pleased to grant a stay of execution of the Decree/Judgment and all consequential orders arising from the Judgment of Hon. Catherine Mburu (Senior Principal Magistrate) delivered on the 26th May, 2026 while sitting at Thika Magistrate Court Case No. MCEL/E078/2022 as against the Appellant pending hearing and determination of this Application inter-parties and the Appeal herein. 3. That this Honourable Court be pleased to make or grant any other order/relief as it may deem just and fair to meet the ends of justice. 4. That the costs of this Application be in the Appeal. 3. The Application is based on the grounds on the face of it and supported by the Adavit sworn by Appellant, Wachira Wanjohi Mbogo on 16/06/2026. 4. The Deponent, deposes that he instituted a suit in the lower Court against the Respondents jointly and severally seeking various reliefs regarding the ownership of Land Parcel Juja/Kiaura Block 29/146, to which the 2nd Respondent led a Statement of Defence and Counterclaim seeking cross-reliefs. The suit proceeded to full hearing where the parties adduced evidence and subsequently led written submissions, culminating in the Judgment delivered on 26/05/2026 by Hon. Catherine Mburu (SPM) at Thika Law Courts, wherein the Applicant’s suit was dismissed, the 2nd Respondent's Counterclaim allowed with costs, the Applicant’s title deed cancelled, the claim for fraudulent damages dismissed for want of proof, and the 2nd Respondent declared the legal proprietor of the suit property, a copy whereof is annexed and marked as “WWM-1”. 5. Being aggrieved by the said decision on the ground that it was contrary to the pleadings and evidence on record, the Applicant instructed his advocates on record to lodge an Appeal before this Court, as demonstrated by the copy of the Memorandum of Appeal annexed and marked as “WWM-2”. The Applicant expresses genuine apprehension that the 2nd Respondent will proceed to execute the decree by evicting him, thereby causing him irreparable loss and damage and rendering his arguable Appeal nugatory and a mere academic exercise unless a stay of execution is granted. The Applicant conrms that the present Application has been brought timeously and without any inordinate or unreasonable delay, praying that the same be allowed in the interest of justice. 6. The Application is opposed by the 2nd Respondent Zaverio Kirimi who swore a Replying Adavit on 17/07/2026 stating that the orders sought and grounds relied upon by the Applicant are unmeritorious, premised on a misapprehension of facts, and calculated to mislead the Court. He avers that the Court’s jurisdiction to grant a stay of execution pending appeal under Order 42 Rule 6 of the Civil Procedure Rules is fettered by strict statutory conditions namely, the establishment of sucient cause, proof of substantial loss, the furnishing of security, and ling without unreasonable delay none of which the Applicant has satised, noting further that mere fear of execution following a positive Judgment is not a precondition for granting stay orders. 7. The 2nd Respondent highlights that via a Court Order dated 24/11/2022, the lower Court had already ordered both parties to stay away and refrain from entering the suit property pending determination of the main suit, and that the Applicant has failed to oer any security as required by law. As a successful litigant under the Judgment delivered on 26/05/2026 by Hon. Catherine Mburu (SPM), he contends he should not be deprived of the fruits of his Judgment by an application intended solely to obstruct and delay him, emphasizing that the trial Court found the Applicant’s title to Land Parcel Juja/Kiaura Block 29/146 tainted and void ab initio for lack of Land Control Board consent, as demonstrated by the composite bundle annexed and marked as “ZK-1”, which contains copies of the Judgment dated https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5573/eng@2026-09-21 2

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26/05/2026, the Plaint dated 1/09/2022, the Defence and Counterclaim dated 14/11/2022, and the parties' Written Submissions. 8. Lastly, the 2nd Respondent asserts that the draft Memorandum of Appeal is argumentative and devoid of substance, urging the Court to refuse the stay of execution and dismiss the instant Application in toto with costs. 9. The Application was canvassed by way of written submissions. Issues for Determination i. Whether the Applicant has demonstrated that substantial loss will result unless an order for stay of execution is granted. ii. Whether the Application for stay of execution pending appeal has been made without unreasonable delay. iii. Whether the Applicant has oered or is willing to furnish adequate security for the due performance of the decree as may ultimately be binding upon him. 10. The jurisdiction of this Court to entertain an application for stay of execution pending appeal is strictly governed by Order 42 Rule 6(2) of the Civil Procedure Rules. Under this statutory provision, no order for stay of execution shall be made unless the Court is satised that three conditions are conjunctively satised: rst, that substantial loss may result to the Applicant unless the order is made; second, that the application has been made without unreasonable delay; and third, that such security as the Court orders for the due performance of the decree as may ultimately be binding on the Applicant has been given. 11. In examining the rst condition, namely substantial loss, the Court must evaluate the nature of the decree sought to be stayed. In the primary suit, the trial Court dismissed the Applicant's suit, allowed the 2nd Respondent’s counterclaim, ordered the cancellation of the Applicant’s title deed to Land Parcel Juja/Kiaura Block 29/146, and declared the 2nd Respondent as the legal proprietor. Execution of this Judgment entails the immediate cancellation of title, potential eviction of the Applicant, and transfer of ownership. In land disputes, execution directly impacts spatial possession and title integrity, which can create an irreversible situation. In the Court of Appeal case of Mukuma v. Abuoga [1988] KLR 645, the Court of Appeal observed: “ The discretion of the Court of Appeal under Rule 5 (2) (b) of the Court of Appeal Rules is at large but 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 it nugatory." 12. Furthermore, in Butt v. Rent Restriction Tribunal [1982] KLR 417, the Court of Appeal stated the fundamental principle governing stay applications verbatim as follows: “ If there is no other overwhelming hindrance, a stay must be granted so that an appeal may not be rendered nugatory should the appeal Court reverse the judge's discretion." 13. If the decree is executed, the title cancelled, and the property alienated or altered prior to the hearing of the appeal, the Applicant’s underlying appeal which raises arguable issues regarding the lower Court’s evaluation of evidence and pleadings would be rendered a mere academic exercise. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5573/eng@2026-09-21 3

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14. Regarding the second condition, unreasonable delay, the Judgment of the subordinate Court was delivered on 26/05/2026. The Applicant instructed counsel, prepared, and led the present Notice of Motion Application dated 16/06/2026. The time elapsed between the delivery of Judgment and the ling of the application is approximately three weeks. In legal practice, ling a stay application within a month of Judgment cannot be construed as inordinate or unreasonable delay; the Applicant acted timeously to safeguard his legal remedies. 15. With respect to the third condition, furnishing of security, the 2nd Respondent vehemently contends that the Applicant failed to oer security in his application. While the Applicant did not explicitly propose security in his motion, Order 42 Rule 6(2)(b) vests the Court with the discretion to determine and impose such security for the due performance of the decree as it deems t. The provision of security is an essential condition precedent that balances the competing interests of a successful litigant seeking to enjoy the fruits of Judgment against the Appellant's right to pursue an arguable appeal without it being rendered nugatory. 16. Having carefully considered the Application, the Replying Adavit, the submissions, and the applicable statutory and judicial authorities, this Court nds that the Applicant has satised the requisite conditions under Order 42 Rule 6 of the Civil Procedure Rules for the grant of a stay of execution pending appeal. 17. Accordingly, the Court hereby issues the following orders: i. That an order of stay of execution of the Judgment, Decree, and all consequential orders arising from the Judgment of Hon. Catherine Mburu (SPM) delivered on 26/05/2026 in Thika Magistrate Court Case No. MCEL/E078/2022 be and is hereby granted pending the hearing and determination of the Appeal herein. ii. That the grant of the stay of execution in Order (i) above is conditional upon the Applicant furnishing security for costs in the sum of Kshs 200,000/= (Kenya Shillings Two Hundred Thousand Only) deposit into a joint account by both the Counsel for the Appellant and the 2nd Respondent within thirty (30) days from the date of this Ruling. iii. That in default of compliance with Order (ii) above within the stipulated timeframe, the order of stay of execution granted herein shall automatically lapse and the 2nd Respondent shall be at liberty to proceed with execution. iv. That the costs of this Application shall abide the outcome of the Appeal. Orders Accordingly. DATED, SIGNED AND DELIVERED THROUGH MICROSOFT TEAMS AT THIKA ON THIS 21ST DAY OF SEPTEMBER 2026. …………………… MOGENI J JUDGE In the presence of:Appellant/Applicant – Absent 1st Respondent – Absent Mr. Ndolo for the 2nd Respondent https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5573/eng@2026-09-21 4

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3rd, 4th and 5th Respondents – Absent Mr. Melita - Court Assistant …………………… MOGENI J JUDGE https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5573/eng@2026-09-21 5

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