Peter Githaka Njagi v Michael Fundi Karuri

copies of the proceedings, Judgement and decree to enable preparation of the record of appeal. He stated that he will suffer substantial loss if stay is not granted and that he has a strong and meritorious appeal with a high probability of success which will be rendered nugatory if the stay is not granted. That no prejudice will be occasioned to the Respondent that cannot be compensated by way of costs and that the Respondent owes the Appellant a sum in excess of the decretal sum in rent arrears which is sufficient security pending determination of the appeal. 3. He annexed to the supporting affidavit a copy of the trial Court Judgement and a copy of a letter requesting for certified documents. 4. The Respondent’s counsel, Njeru Ithiga opposed the application through a replying affidavit dated 21/05/2026. He deposed that the Appellant had not satisfied the provisions of Order 42 Rule 6 of the Civil Procedure Rules under which the application was brought. That he had not demonstrated what substantial loss he will suffer if he satisfies the decretal sum as he prosecutes the appeal or that the Respondent will not be in a position to refund the money if the Appellant succeeds on appeal. He averred that the Appellant had not provided the security for the due performance of the decree as a condition for grant of stay of execution. He contended that the application lacks merit and should be dismissed with costs. Page 2 of 6

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5. When the application came up for directions, the parties agreed canvass it by way of written submissions. 6. The Appellant filed submissions dated 20/05/2026 through the firm of Njeru, Nyaga & Company Advocates LLP. He submitted that he had satisfied all the conditions for grant of stay of execution, namely, demonstrated substantial loss, filed the application without delay, and expressed willingness to provide security as required under Order 42 Rule 6(2) of the Civil Procedure Rules. On substantial loss, he submitted that he had demonstrated that the initial 30 day stay is about to lapse, the Respondent is likely to commence execution, and there is a real risk of attachment of his property and that the consequences include irreparable disruption and possible loss of Kagaari/Weru/5318, the suit property, thereby rendering the appeal nugatory. 7. He submitted further that the application was filed without unreasonable delay as he filed the memorandum of appeal promptly after judgement was entered and that the instant application was filed within the subsisting stay period. On security, he submitted that the Respondent owes him rent arrears exceeding the decretal sum, a matter pending determination on 29/05/2026 in Embu BPRT E065/2025, which is more than sufficient security pending the final determination of the Appeal herein. The Appellant submitted that if execution proceeds, his property may be attached and disposed of and the substratum of the appeal will be destroyed. In support of Page 3 of 6

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his submissions, he cited the cases of Kenya Shell Limited v Benjamin Karuga Kibiru & Another (1986) Eklr, Butt v Rent Restriction Tribunal (1982) KLR 417 among others. 8. The Respondent filed submissions dated 27/05/2026 through the firm of Njeru Ithiga & Company Advocates. He submitted that the judgment and decree appealed against is a money decree and that the Appellant had not demonstrated the substantial loss he would suffer if the order of stay is not granted. That the Appellant had also not demonstrated that the Respondent would not be able to refund the money in the event the appeal was successful. He averred that the execution need not be the attachment and sale of land parcel No. Kagaari/Weru/5318. That the trial Court declined to give an order for specific performance to transfer the suit parcel to the Respondent and ordered that Kshs.1,800,000/= which was paid to the Appellant by the Respondent as purchase price be refunded. He averred that it was this order for refund which is the main issue in the appeal. 9. The Respondent conceded that the application had been filed without undue delay. He submitted that on the issue of security for the due performance of the decree, the Appellant had not offered or proposed any security. That although the Appellant avers that the Respondent owes him rent arrears exceeding the decretal sum, the trial Court found there were no such rent arrears and that there was no landlord/tenant agreement between the parties. He submitted that the Applicant should Page 4 of 6

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deposit the decretal sum of more than Kshs.1,800,000/= either in court or in an interest earning bank account as security. He urged that the Appellant be directed to offer security as the Court may direct as a condition for stay. He relied on the case of Nyeri Court of Appeal Civil Application No. 175 of 2019 Kenya Power & Lighting Co. Ltd v Kigaita Ngare Unduthu & 36 Others in support of his submissions. 10. I have considered the application, the response made to it and the parties’ submissions. The issue for determination is whether the Appellant has satisfied the requirements for grant of stay of execution pending appeal. 11. The conditions for grant of stay pending appeal are set out under Order 42 Rule 6(2) of the Civil Procedure Rules. The Applicant must demonstrate that substantial loss may result to him unless the order is made, that the application has been made without unreasonable delay, and that such security as the Court may order for the due performance of the decree has been given. 12. On the issue of substantial loss, the judgment of the lower Court ordered the Appellant to refund to the Respondent the purchase price of Kshs. 1,500,000 paid for the sale of land parcel Kagaari/Weru/5318 plus liquidated damages of Kshs. 300,000/=, pursuant to the sale agreement entered into by the parties on 7/03/2019. The Appellant contends that the Respondent was a tenant on the suit property who offered to purchase the property but failed to pay rent, and that the rent Page 5 of 6

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arrears owed by the Respondent exceed the decretal sum. He therefore contends that the alleged rent arrears constitute sufficient security for the due performance of the decree and further states that the issue is the subject of Embu BPRT E065 of 2025. However, no evidence was placed before the Court to demonstrate either the existence of the alleged rent arrears or the pendency of the said proceedings. 13. Further, the Appellant has not demonstrated that the Respondent would be unable to refund the decretal sum in the event that the appeal succeeds. I also agree with the Respondent that the execution of the decree does not necessarily entail the attachment and sale of the suit property. In the circumstances, I am not persuaded that the Appellant has demonstrated the substantial loss he would suffer should the orders of stay of execution not be granted. 14. On the issue of delay, the Respondent conceded that the application was filed without undue delay. I therefore find that this requirement has been satisfied. 15. On the issue of security for the due performance of the decree, the Appellant has not offered any security, other than the alleged rent arrears which as stated above, have not been supported by evidence. 16. Consequently, I find that the Appellant has not demonstrated that he is entitled to an order of stay of execution pending appeal. The application is therefore dismissed. 17. The Respondent shall have costs of the application. Page 6 of 6

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DATED, DELIVERED and SIGNED at EMBU this 24 th Day of September, 2026. HON. E.C CHERONO ELC JUDGE, EMBU In the presence of; 1. M/S Kimathi H/B Mr. Okwaro for the Applicant 2. Mr. Njeru Ithiga for the Respondent 3. Ruth C/A Page 7 of 6

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