Ngumi v Njuguna & 3 others

3. He avers that his intended Appeal raises arguable grounds which include: the learned trial Judge's failure to apply the rst purchaser for value rule and the doctrine of bona de purchaser for value without notice; erroneous cancellation of the 2nd Defendant’s registered title without strict proof of fraud or illegality (contrary to Section 26(1) of the Land Registration Act; misapplication of the eect of the revocation of the Kajiado Grant; failure to place the burden of proving fraud on the Plainti and errors in the award of damages while disregarding their counterclaim. 4. He argues that it would be unjust to permit execution to proceed while his stay application and the intended Appeal are yet to be heard. He urges the Court to consider that the judgement debtors are elderly persons of modest nancial means who rely on a hardware as their source of livelihood thus threatened eviction would cause them irreparable loss and acute hardship in their advanced years. Further, that they have been in Court over the suit property for close to a decade despite having purchased it rst in 2002. 5. He explains that they did not le a Notice of Appeal or pursue the Appeal within the prescribed time because the Court le went missing from the Registry shortly after delivery of the judgment and despite persistent written requests by their previous advocates and formal escalation of the matter to the Principal Judge and the Chief Justice, they were unable to obtain a copy of the Judgment and proceedings. 6. They aver that in early 2026, they were confronted with attempted eviction and acted promptly by engaging new advocates and ling the Application for stay without undue delay but they had led a Notice of Appeal on 10th November 2022 through their then advocates, demonstrating their consistent intention to challenge the Judgment. Further, that if execution is permitted to proceed, they stand to suer substantial loss that cannot be adequately compensated in damages while the harm to the Plainti can be adequately compensated by an award of costs if the Appeal ultimately fails. 7. The Decree holder led an adavit in response. He insists that the Defendants were served with processes preceding the Notice to Show Cause, including the draft Decree and the Bill of Costs. Further, that the question of the missing le is no excuse for them not to have settled the decretal amount of kshs. 4,672,261.78. He insists that Judgement debtors did not take steps towards looking for the le, but it is his advocates who constantly looked for it until it was found. He accuses the 1st and 2nd Defendants of being indolent and then waking up with unfounded accusations against the Judiciary by going to social media and writing letters to the Chief Justice and Ombudsman to seek sympathy and ran away from satisfying this Court’s orders issued four (4) years ago. 8. He points out that to date, the Defendants have not led any Record of Appeal or an application for stay of the judgment of this Court in the Court of Appeal. Further, that they have never applied for typed and certied copies of proceedings which is a cardinal step towards any Appeal. He contends that the time for ling a Record of Appeal lapsed sixty (60) days from the date of ling the Notice of Appeal thus there is no Appeal or likelihood of any Appeal ever getting led successfully. He also claims that he has always been in possession of the subject property after the 1st and 2nd Defendants’ failed eviction in 2012. 9. The Notice to Show Cause was canvassed by way of written submissions. Submissions 10. The Plainti submits that without stay orders, this Court is not barred from allowing the Notice to Show Cause. Further, that while the 1st and 2nd Defendants have informed the Court that they led an application for stay before this Court in May 2026, four (4) years after judgement was entered, under https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5618/eng@2026-09-24 2

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Order 42 Rule 6(2) of the Civil Procedure Rules, an Order for stay of execution would not be made unless the application has been made without unreasonable delay. 11. He also submits that the argument by the Defendants that the reason for delay was occasioned by the missing le does not hold water for reasons that their advocates did not seek stay when judgement was delivered, and they have not demonstrated that they took any steps to look for the le, which was in any case found over a year ago yet they took no step in the matter. He also argues that the 1st and 2nd Defendants have been aware of the judgement as they even led a Notice of Appeal on 10th November 2022, within fourteen (14) days of the judgement as prescribed by the Rules thus they are disentitled from equitable relief. 12. The Plainti also submits that intention to Appeal or even ling an Appeal does not act as an automatic stay, pursuant to Order 42 Rule 6(1) of the Civil Procedure Rules, thus an intended Appeal cannot be a basis for stopping the intended execution. He insists that he is in possession of the subject property, execution is for costs and special damages awarded. 13. To buttress his averments, the Plainti relied on the following decisions: Machira t/a Machira & Co Advocates v East African Standard [2002] KEHC 1167 (KLR); Masua v Mbuvi & another [2024] KEHC 12448 (KLR) and Michael Bartenge v Stephen Bartenge [2007] KEHC 2289 (KLR). 14. On their part, the 1st and 2nd Defendants submit that while Order 22 Rule 18 of the Civil Procedure Rules requires the issuance of a Notice to Show Cause, it presupposes service of execution processes but in the contrary, the Plainti selectively eected service of the Notice to Show Cause only and omitted service of preceding processes, which action violates the principles of natural justice including fair hearing and entitles the Court to set aside the Notice to Show Cause. 15. They submit that the systemic administrative failure of the Court registry which lost the le ought not be visited upon them, insisting that they could not access the Judgment and proceedings, thus they could not properly know the basis of the Decree or mount a response to execution. Further, that the balance of convenience favours the preservation of status quo and the discharge or adjournment of the Notice to Show Cause and since the Decree holder asserts to be in possession of the suit property, execution is sought only in respect of taxed costs while the underlying dispute over title and the merits of the Decree remains live thus the Plainti will not be prejudiced. 16. They also submit that they have also identied substantial and arguable grounds challenging the underlying Judgment and Decree herein. While they admit that there is no stay Order in place, they argue that this Court is not barred from declining to allow execution on the basis that the Notice to Show Cause was procured unprocedurally. Further, that the Decree Holder's right to enjoy the fruits of the judgment is not absolute; it must yield to procedural fairness and the prevention of irreparable harm. On the issue of escalating the issue on social media and writing to the Hon. Chief Justice and others, they insist that they escalated a genuine grievance thus they should not be penalized for doing so. Analysis and Determination 17. I have considered the Notice to Show Cause, the replying adavit including the parties’ submissions and the only issue for determination is whether the said Notice to Show Cause herein is valid and if the Defendants have demonstrated sucient cause why execution of the decree should not proceed. 18. It is not disputed that judgment was entered in the Plainti’s favour on 27th October 2022 and a Notice to Show Cause was subsequently issued on 16th March 2026, requiring the 1st and 2nd Defendants to show cause why their movable property should not be attached in satisfaction of the Decree herein, which amounts to kshs.4,448,201.94. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5618/eng@2026-09-24 3

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19. The 1st and 2nd Defendants have urged the Court to discharge or adjourn the Notice to Show Cause on the basis that the instant le went missing the moment judgement was delivered, due to administrative failure of the Court registry, which they insist should not be visited upon them. Further, that it is in the interest of justice that their application led on 25th May 2026 seeking stay of execution of the judgement in the matter and leave to Appeal out of time should be heard and determined rst as they are elderly and they stand to suer irreparable personal damage if execution proceeds. 20. They also contend that the Notice to Show Cause should be set aside for breach of natural justice as they allege that they were not served with the processes preceding it. They do not however deny that they were served with the Notice to Show cause. 21. On his part, the Plainti states that the Defendants were served with the draft Decree and Bill of costs. Further, while he admits that the le had gone missing, he contends that it was recovered over a year ago yet the 1st and 2nd Defendants remained indolent during the period and they did not put any eort into recovering it. 22. The Plainti contends that the existence of the application dated 25th May 2026 seeking stay orders as well as orders for extension of time within which to Appeal does not bar this Court from determining the Notice to Show Cause. Order 42 Rule 6(1) of the Civil Procedure Rules stipulates that no Appeal or second Appeal shall operate as a stay of execution. In this case, as admitted by the 1st and 2nd Defendants, no stay orders have been granted in the matter. 23. I note the Decree in this matter was issued on 24th November 2022, over three (3) years ago. In such a case, where the Decree is over a year old, the Civil Procedure Rules require issuance of a Notice to Show Cause. Order 22 Rules 18 of the Civil Procedure Rules states as follows:“ Where an application for execution is made— (a) more than one year after the date of the decree; (b) against the legal representative of a party to the decree; or (c) for attachment of salary or allowance of any person under rule 43, the court executing the decree shall issue a notice to the person against whom execution is applied for requiring him to show cause, on a date to be xed, why the decree should not be executed against him: Provided that no such notice shall be necessary in consequence of more than one year having elapsed between the date of the decree and the application for execution if the application is made within one year from the date of the last order against the party against whom the execution is applied for, made on any previous application for execution, or in consequence of the application being made against the legal representative of the judgment-debtor, if upon a previous application for execution against the same person the court has ordered execution to issue against him: Provided further that no such notice shall be necessary on any application for the attachment of salary or allowance which is caused solely by reason of the judgment-debtor having changed his employment since a previous order for attachment.” https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5618/eng@2026-09-24 4

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24. 25. While Order 22 Rule 19 of the Civil Procedure Rules further states that:“ (1) Where the person to whom notice is issued under rule 18 does not appear or does not show cause to the satisfaction of the court why the decree should not be executed, the court shall order the decree to be executed. (2) Where such person oers any objection to the execution of the decree, the Court shall consider such objection and make such order as it thinks t.” Emphasizing the import of the aforementioned Rule, the Court stated as follows in Print on Demand & another v Uneeco Paper Products Limited [2025] KEHC 18713 (KLR): “ A Notice to Show Cause under Order 22 Rule 18 is a lawful tool allowing a judgment debtor an opportunity to explain why execution should not proceed.” 26. Further, in the case of Reuben Nyanginja Ndolo v Dickson Wathika Mwangi, Jerusa Chepsap and Election Commission of Kenya, Pet. 11/2008 cited in Tusteel Limited v Ukwala Bargains Limited (Civil Appeal E389 of 2023) [2024] KEHC 14266 (KLR) (Civ) (15 November 2024) (Ruling) the Court stated thus: “ The requirement for Notice to Show Cause serves two purposes in my view: First, it serves to give notice to the judgement debtor to pay the decretal sum in cases where as a result of the lapse of time, he may have forgotten about the existence of the decree altogether; secondly, the requirement for notice to show cause is also meant to put the decree holder on notice that if he delays in pursuing his rights, the process of execution will be subjected to the said notice. This is a recognition that invariably a delay in execution of decrees leads to escalation of interests and the due process of the law in civil litigation should not be used as an avenue to extract penal consequences.” 27. In the case of John Muhanda Muya Another v Stanley K. Kuria & Another [2013] KEHC 4437 (KLR), the Judge observed as follows: “ ... I do agree with the respondent that indeed the applicant has been aware of the judgment herein since its delivery on 17/6/2010, over two years ago. The applicant attempted to apply for an order for stay pending appeal. That application was never prosecuted. There is no evidence that the applicant ever led an appeal against the judgment of the court. The applicant has not given any reason why they never paid the decretal sum and await the interest and costs to be determined later. Sitting back and waiting for the execution to commence then rush to court to stop execution on account of an irregularity in procedure is not an act of good faith. The applicants are bent on delaying the respondents'' realization of the fruits of the judgment.” 28. It is my considered view that the reasons proferred by the 1st and 2nd Defendants amount to excuses as they have failed to demonstrate sucient cause why execution should not proceed. I note that they participated in the processes preceding the Notice to Show Cause as they have not denied being served with the draft Decree and Bill of Costs. Further, I note that despite ling a Notice of Appeal on 10th November 2022, immediately after delivery of the impugned judgement, they have not provided proper reasons as to why they failed to seek stay pending Appeal nor pursue the Appeal. I opine that the Notice to Show Cause was not procured unprocedurally as claimed. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5618/eng@2026-09-24 5

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29. In the foregoing, while relying on the legal provisions cited and associating myself with the decisions quoted, I nd that the impugned Notice to Show Cause is valid as the Defendants have failed to demonstrate sucient cause why execution of the Decree should not proceed. I do not see the reason why the Plainti should be blocked from enjoying the fruits of the judgement and direct that execution of the Decree herein do proceed. 30. Costs awarded to the Plainti DATED SIGNED AND DELIVERED AT NAIROBI THIS 24TH DAY OF SEPTEMBER, 2026 CHRISTINE OCHIENG JUDGE In the presence of: Kirimi for Plainti / Decree Holder Kinyanjui for 1st and 2nd Defendant/Judgement Debtor Court Assistant: Joan https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5618/eng@2026-09-24 6

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