Stephen Muasya Ndelewa v Tabitha Muthoni Karanja & Land Registrar Murang'a

(3)The motion is opposed by the Plaintiff who has filed a replying affidavit which is undated. The Plaintiff responds as follows. Firstly, no competent appeal has been demonstrated by the 1 st Defendant because there is no memorandum of appeal or record of appeal as yet. Secondly, leave to appeal out of time has not been obtained or demonstrated. Thirdly, the application is speculative and intended to solely delay execution of a lawful judgment. Fourthly, the 1 st Defendant has never occupied the suit land and has no houses or structures thereon. It is therefore misleading to allege that the 1st Defendant will be evicted from the suit land. This means that the 1st Defendant has not demonstrated substantial loss. Finally, the application is an abuse of the Court process and is merely intended to deny the Plaintiff the enjoyment of the fruits of his lawful judgment. For the above and other reasons, he prays for the dismissal of the motion. (4)Counsel for the 1st Defendant filed written submissions dated 14-8-2026 in which the following issues were framed for determination. (i) An arguable appeal with high chances of success. (ii) Whether the application was made without unreasonable delay. (iii) Whether the Applicant stands to suffer substantial loss . (iv) Balance of convenience and security for due performance of decree. On the hand, the Plaintiff’s counsel has framed five issues for determination. They include the following. (a) Whether the Applicant has demonstrated the existence of competent appeal. (b) Whether the Applicant has established substantial loss as required under Order 42 rule 6 of the Civil Procedure Rules. (c) Whether the implementation of the judgment and the subsequent registration of the Respondent as the lawful proprietor of the suit property renders the present application overtaken by events and incapable of granting the relief sought. (d) Whether the application amounts to an abuse of the Court process. (e) Whether the Applicant has satisfied the conditions for the grant of stay of execution pending appeal under Order 42 rule 6 of the Civil Procedure Rules. MRG ELCLC NO 7 OF 2023 2R of 5

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(5)I have carefully considered the motion in its entirety including the grounds, the two affidavits by the 1st Defendant, the single affidavit by the Plaintiff, the written submissions, the issues framed and the law cited. I find that only three (3) issues arise as per Order 42 rule 6(2) of the Civil Procedure Rules. It provides as follows. (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 the application has been 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.” I find that there are only three conditions that the trial court considers in an application such as this. They include the following. (i) Whether the Applicant will suffer substantial loss if the application is not allowed. (ii) Whether the application has been made without unreasonable delay. (iii) Whether the Applicant has provided security for the due performance of such decree or order as may ultimately be binding on him. These conditions must not be confused with those that the Court of Appeal considers when dealing with an application for stay of execution of the decree of the High Court. The Court of Appeal is guided by Rule 5 (2) (b) of the Court of Appeal Rules which have no application in this Court. Section 19(2) of the Environment and Land Court Act (Act No. 19 of 2011) provides that this court shall be bound by the procedure laid down by the Civil Procedure Act. (6)It is my finding that the 1st Defendant does not stand to suffer substantial loss if the application dated 25-5-2026 is not allowed. Contrary to the Deposition by the 1 st Defendant that she has home on the suit, the only evidence ever filed was in respect to planting maize and beans on the suit land and digging water trenches to irrigate the crops. There is no mention of a home on the suit. In fact the evidence from the Plaintiff is that the 1st Defendant has never occupied the suit land. The absence MRG ELCLC NO 7 OF 2023 of any evidence of the 3R of 5

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homestead in the original pleadings and even in the two affidavits by the 1st Defendant in support of this application creates doubt as to the credibility of the 1 st Defendant that she has a homestead on the suit land. (7)As for the second condition, I find that the judgment is dated 10-2-2026 and the current application is dated 25-5-2026. It took the 1st Defendant about 3 ½ months to file the current application after the judgment of 10-2-2026. A notice of Appeal to the Court of Appeal ought to be filed within 14 days of the date of judgment or ruling appealed from. The Record of Appeal to the Court of Appeal must be filed within 60 days. The current application was filed after 103 days after the judgment of 10-2-2026 yet neither the Notice of Appeal nor the Record of Appeal have been annexed or even mentioned by the 1 st Defendant. It is my finding that a hiatus of 103 days is unreasonable delay and more so because the 1 st Defendant has not bothered to explain the delay. (8)Finally, on the third condition, I find that the 1st Defendant has not provided any security for the due performance of any decree or order that may ultimately be found binding on her. Under Order 42 rule 6 (2) Civil Procedure Rules all the three conditions must be satisfied before an order for stay of execution pending appeal can be made by the Court appealed from. The conditions are conjunctive and not disjunctive. (9)Having failed to satisfy any of the three conditions when the law requires that all the three be satisfied means that the motion dated 25-5-2026 has failed and it cannot be allowed. Consequently, I dismiss it with costs to the Plaintiff. It is so ordered. Dated, Signed and Delivered virtually at Murang’a this 22nd day of September, 2026. M.N. GICHERU JUDGE. Delivered online in the presence of; MRG ELCLC NO 7 OF 2023 4R of 5

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Court Assistants – Antony Plaintiffs’ Counsel – Mr Njogu 1st Defendant’s Counsel – Mr Kiwinga MRG ELCLC NO 7 OF 2023 5R of 5

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