Andrew Geoffrey Onguka & Another v Elizabeth Atieno Onyango

3. Pending the hearing and determination of the intended appeal before the Court of Appeal, there be a stay of execution of the Judgment and Decree delivered on 26th February 2026. 4. The status quo currently obtaining on land parcel Kisumu/Kadianga West/505 be preserved pending the hearing and determination of the intended appeal. 5. The costs of the application be in the cause. [2] This application arises from a judgment delivered by this Court on 26th February 2026, allowing an appeal by Elizabeth Atieno Onyango (the Respondent herein) against the Applicants. In Kisumu MCELC No. E055 of 2024, the Trial Court dismissed the Respondent’s claim and allowed the Applicants’ counterclaim for specific performance. On first appeal, the Court overturned the Trial Court’s decision, set aside the judgment, and declared the Respondent the bona fide proprietor of land parcel Kisumu/Kadianga West/505. Consequently, the Court issued an eviction order directing the Applicants to vacate the suit land, together with a permanent injunction restraining the Applicants from entering, occupying, or interfering with the suit property. Dissatisfied with this outcome, the Applicants filed a Notice of Appeal to the Court of Appeal on 9th March 2026. Summary of the Application [3] Andrew Geoffrey Onguka swore an affidavit on 17th March 2026 in support of the application. The deponent asserted that the appeal raises substantial and ELCLC E053 OF 2025-RULING Page 2

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arguable legal and factual issues and is likely to succeed. It specifically questions whether doctrines such as constructive trust and proprietary estoppel apply when a purchaser has taken possession and fulfilled obligations under a land sale agreement, and whether the Court failed to balance equitable interests in land with the provisions of the Law of Succession Act. [4] In addressing the requirement of substantial loss, the deponent described the Applicants’ reliance on the suit property. He averred that the Applicants have been in open, peaceful, and uninterrupted possession of the suit property since 2012 and that the Respondent raised no complaints until 2023. The deponent argued that the Applicants have erected a residential structure on the suit property, fenced the entire parcel, installed water infrastructure, and deposited building materials on site. He estimated the value of these developments at more than Kenya Shillings Four Million and contended that demolishing them would cause irreparable financial loss. [5] He further averred that One Life Africa conducts charitable and educational activities to support needy students through mentorship programmes, and that the suit property was intended to serve as an operational base for these activities. The deponent stressed that eviction and the subsequent demolition of the existing developments would permanently destroy the Applicants’ investments. He argued that if the decree is executed, restoring possession and reconstructing the property ELCLC E053 OF 2025-RULING Page 3

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would be extremely difficult, if not impossible, even if the intended appeal ultimately succeeds, thereby rendering the appellate process nugatory. The deponent further argued that the application was brought promptly and that the Applicants were unconditionally ready and willing to deposit such reasonable security as the Court may order to guarantee the due performance of the decree. Summary of the Reply [6] The Respondent, Elizabeth Atieno, opposed the application by filing a Replying Affidavit sworn on 20th May 2026. She grounded her opposition on this Court’s judgment of 26th February 2026. She noted that the Court found the Applicants were trespassers on the suit property; that the alleged sale agreements relied upon by the Applicants contravened the Law of Succession Act; that she lacked the legal capacity to sell the suit property at the material time; and that there was no clear or cogent proof of payment of consideration by the Applicants. She emphasised the Court’s finding that the Applicants’ actions amounted to unlawful intermeddling with the estate of a deceased person, in contravention of Sections 45 and 82 of the Law of Succession Act. Consequently, she argued that the Applicants had failed to demonstrate any arguable appeal capable of overturning these clear statutory and jurisprudential findings, rendering the prospects of the intended appeal extremely low. ELCLC E053 OF 2025-RULING Page 4

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[7] Addressing the Applicants’ claims of long-term occupation and substantial investments, the Respondent averred that the Applicants have not been in uninterrupted possession of the suit property since 2012. She reminded the Court that its own judgment expressly found no evidence of occupation since 2012 and instead determined that the Applicants’ forceful entry onto the suit property occurred only in or around 2023. Additionally, the Respondent deposed that the Applicants failed to annex any documentary proof of the alleged developments valued at over Kshs. 4,000,000. She noted the absence of any valuation report, receipts, building approvals, photographs of permanent developments, contractor agreements, or bills of quantities. [8] The Respondent further argued that even if such developments existed, they were unlawfully carried out on property belonging to the estate of a deceased person, and subsequently on her lawfully registered land, despite the Applicants’ full knowledge that no lawful transfer had been effected. She contended that the Applicants cannot rely on illegal occupation and unlawful developments to seek equitable relief. [9] On the issue of substantial loss, she averred that the Applicants made only generalised allegations and failed to place before the Court credible evidence of irreparable damage incapable of compensation. Conversely, she argued that she continues to suffer substantial prejudice from unlawful deprivation of possession, ELCLC E053 OF 2025-RULING Page 5

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occupation, and use of her lawfully registered land, despite holding a valid judgment in her favour. She characterised the Applicants’ continued occupation as trespass and a continuous violation of her proprietary rights. Finally, the Respondent argued that the Applicants lacked concrete proposals for security and failed to meet the legal threshold set by Order 42 Rule 6 of the Civil Procedure Rules. She concluded that it is in the interests of justice for a successful litigant to enjoy the fruits of her judgment without further unwarranted delay. Summary of Submissions [10] When the application came up for hearing, counsel for both parties canvassed it through oral submissions. Ms Mwilolo, representing the Applicant, argued that the Applicant had satisfied the tripartite test under Order 42 Rule 6(2) of the Civil Procedure Rules. She contended that execution would result in the demolition of residential property occupied by the Applicant since 2012, causing irreparable loss and rendering the appeal, which she maintained raised issues of constructive trust and proprietary estoppel, nugatory. [11] Counsel further asserted that the application was brought without unreasonable delay and offered a general undertaking to provide whatever security the court deems appropriate, emphasising that the balance of convenience and the interests of justice favour preserving the status quo. ELCLC E053 OF 2025-RULING Page 6

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[12] Opposing the application, Mr Omondi argued that the Applicant failed to prove substantial loss, noting that the structures are temporary and made of iron sheets, and that no valuation report supported the claimed Kshs. 4,000,000 investment. Citing cases such as Cytonn Investments Partners Sixteen LLP & 3 others v Official Receiver [2025] KECA 1934 (KLR) and Machira T/A Machira & Co Advocates v East African Standard (No.2) (2002) KLR 63, he argued that any potential loss is quantifiable and compensable by costs. He further attacked the Applicant’s blanket offer of security, arguing that a mere statement of willingness is legally inadequate and that Kshs. 4,000,000 in security should be required if the court grants the stay. [13] Finally, Mr Omondi argued that the Applicant’s occupation constitutes a persistent trespass and unlawful interference with the deceased’s estate, thereby violating Section 45 of the Law of Succession Act. He urged the court not to exercise its equitable discretion to legitimise an illegality. Analysis and Determination [14] The Court has considered the Notice of Motion, the competing affidavits, the robust oral submissions from both counsel, and the authorities relied upon. The Court’s jurisdiction to grant a stay of execution pending an appeal is grounded in Order 42 Rule 6 of the Civil Procedure Rules. The rule provides that: ELCLC E053 OF 2025-RULING Page 7

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“(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 sufficient 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 sub rule (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 ELCLC E053 OF 2025-RULING Page 8

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(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.” [15] Exercising this discretion requires a delicate balancing of competing rights and interests, guided by the overriding objective set out in Sections 1A and 1B of the Civil Procedure Act. The Court must balance the right of a successful litigant to immediately enjoy the fruits of their judgment against the fundamental right of an aggrieved party to pursue an effective appeal that is not rendered an exercise in futility. As the Court of Appeal articulated in Butt v Rent Restriction Tribunal [1979] KECA 22 (KLR): “A stay which would otherwise be granted ought not to be refused because the judge considers that another, which in his opinion will be a better remedy, will become available to the applicant at the conclusion of the proceedings. It is in the discretion of the court to grant or refuse a stay but what has to be judged in every case is whether there are or not particular circumstances in the case to make an order staying execution. It has been said that the court as a general rule ought to exercise its best discretion in a way so as not to prevent the appeal, if successful from being nugatory…” ELCLC E053 OF 2025-RULING Page 9

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[16] To successfully invoke this discretionary relief, the Applicants must satisfy, cumulatively, the three conditions set out in Order 42 Rule 6(2) of the Civil Procedure Rules: unreasonable delay, substantial loss and security for the due performance of the decree. These conditions form a holistic threshold, and none can be assessed in isolation. I will analyse whether the Applicants have discharged their burden on each mandatory limb. Unreasonable Delay [17] The first statutory prerequisite requires the Court to determine whether the application was instituted without unreasonable delay. The assessment of what constitutes unreasonable delay depends heavily on the peculiar circumstances of each case, including the interval between the delivery of the judgment and the filing of the application. In the present matter, the record confirms that this Court delivered the judgment sought to be stayed on 26th February 2026. The Applicants promptly filed a Notice of Appeal on 9th March 2026, signalling their immediate intention to challenge the decision. The Applicants subsequently filed the instant application on 17th March 2026, nineteen days after the delivery of the judgment. The period taken to file the application cannot be deemed inordinate or unreasonable. Consequently, I hold that the Applicants have satisfied the first condition of Order 42 Rule 6(2). Substantial Loss ELCLC E053 OF 2025-RULING Page 10

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[18] The second condition requires the Applicants to demonstrate to the Court’s satisfaction that substantial loss may result unless the stay order is granted. The starting point is that executing a lawful process does not automatically amount to substantial loss. I am guided by the holding in James Wangalwa & Another vs. Agnes Naliaka Cheseto [2012] eKLR that: “No doubt, in law, the fact that the process of execution has been put in motion, or is likely to be put in motion, by itself, does not amount to substantial loss. Even when execution has been levied and completed, that is to say, the attached properties have been sold, as is the case here, does not in itself amount to substantial loss under Order 42 Rule 6 of the CPR. This is so because execution is a lawful process. The applicant must establish other factors which show that the execution will create a state of affairs that will irreparably affect or negate the very essential core of the applicant as the successful party in the appeal.... 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 the appeal nugatory.” [19] The Applicants argued that they have occupied the suit property and, during this period, erected a residential structure, fenced the parcel, and installed critical water infrastructure, representing a capital investment estimated at over Kshs. ELCLC E053 OF 2025-RULING Page 11

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4,000,000. Additionally, the 2nd Applicant claims to operate charitable and educational activities from the premises. The Respondent has challenged the legality of this occupation and disputed the valuation, citing a lack of documentary evidence. However, at the interlocutory stage of a stay application, this Court is not to conclusively determine the ultimate legality of the occupation or conduct a forensic audit of the valuation; those matters are for the substantive appeal. [20] This Court must determine whether executing the eviction order will create an irreversible situation. If the Applicants are evicted, the structures they have erected will inevitably face imminent demolition to grant the Respondent vacant possession. If the Applicants’ intended appeal to the Court of Appeal is successful, restoring the physical infrastructure and the disrupted charitable operations of One Life Africa would be nearly impossible. The substratum of the dispute would have been irreparably altered. [21] The Applicants’ intended appeal rests on complex equitable doctrines of constructive trust and proprietary estoppel, rights that are intrinsically tied to physical possession and reliance on the land. If execution proceeds and the property is handed over to the Respondent, who may subsequently alienate or transfer it to innocent third parties, the very substance of what the Applicants seek to protect on appeal will be negated. Therefore, I find that the Applicants have ELCLC E053 OF 2025-RULING Page 12

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sufficiently demonstrated that they stand to suffer substantial loss, rendering their intended appeal nugatory if the stay is not granted. Security for Due Performance [22] The final condition requires the Applicants to provide such security as the Court orders to ensure the due performance of the decree that may ultimately be binding on them. The primary objective is not to punish the judgment debtor. The Applicants have expressed their readiness to provide reasonable security, whereas the Respondent has characterised this as a vague promise lacking concrete proposals. The overarching rationale for security was succinctly captured in Arun C Sharma v. Ashana Raikundalia t/a Rairundalia & Co. Advocates & 2 others [2014] eKLR, that: “The purpose of the security needed under Order 42 is to guarantee the due performance of such decree or order as may ultimately be binding on the applicant. It is not to punish the judgment debtor... Civil process is quite different because in civil process the judgment is like a debt hence the applicants become and are judgment debtors in relation to the respondent. That is why any security given under Order 42 rule 6 of the Civil Procedure Rules acts as security for due performance of such decree ELCLC E053 OF 2025-RULING Page 13

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or order as may ultimately be binding on the applicants. I presume the security must be one which can serve that purpose.” [23] In the present case, the decree comprises a declaration of ownership, an eviction order, and a permanent injunction against the Applicants. If their appeal fails, the Applicants' primary obligation is to yield vacant possession of the suit property to the Respondent. Because the decree does not include a specific, quantifiable monetary award (save for potential costs), the Court must fashion a security order to protect the Respondent against the financial prejudice arising from a protracted litigation that keeps her out of the property. Given the Applicants’ admission that they have spent over Kshs. 4,000,000 on developments, they must have significant financial capacity. Consequently, a substantial monetary deposit of Kshs. 1,000,000 is appropriate as a guarantee of the decree’s due performance and to protect the Respondent from the ongoing deprivation of her property rights. Final Orders [24] Having carefully weighed the competing interests and found that the Applicants have satisfied the rigorous threshold for the grant of relief under Order 42 Rule 6 of the Civil Procedure Rules, this Court exercises its discretion in favour of the Applicants, subject to the provision of adequate security to protect the Respondent. Accordingly, I make the following orders: ELCLC E053 OF 2025-RULING Page 14

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1. The Notice of Motion dated 17th March 2026 is hereby allowed, subject to the conditions set out below. 2. The status quo in relation to the suit property, land parcel Kisumu/Kadianga West/505, shall be maintained pending the hearing and final determination of the intended appeal. The current status quo is that the Applicants should not be evicted from the suit property, nor should their structures be demolished. 3. The above order for stay and maintenance of the status quo is issued on the condition that the Applicants deposit, as security, the sum of Kenya Shillings One Million Only (Kshs. 1,000,000/=) in a joint interest-earning account in the names of the Advocates on record for both parties. 4. The said security shall be deposited within thirty (30) days of the date of this ruling; failing which, the orders of stay and status quo granted herein shall automatically lapse without further reference to this Court, and the Respondent shall be at liberty to proceed with the full execution of the decree. 5. The costs of this application shall abide the outcome of the intended appeal. Delivered virtually, signed and dated this 24th day of September 2026 C.C. Oluoch ELCLC E053 OF 2025-RULING Page 15

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Judge In the presence of: Ms Akira for the Applicant Mr Omondi for the Respondents Court Assistant Faith ELCLC E053 OF 2025-RULING Page 16

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