Stephen Cherono alias Saeed Saeed v Daniel Ladama Ruto

NO.78 of 2023, Daniel Ladama Ruto vs Stephen Cherono Alias Saeed Saeed Cherono came up for hearing on 18 th October 2024. He deponed that his Counsel on record did inform him which he believes to be true that she was served with a hearing notice but she inadvertently failed to diarize the matter. Consequently, the matter proceeded ex parte on 18th October, 2024 in his absence and that of his counsel and the respondent’s witnesses testified and closed his case and the Appellant’s case was closed due to non-attendance. 3. The Applicant further deponed that the matter came up for mention for submissions on 5th November,2024 and his advocate sought directions on the said application but the trial magistrate struck out the application on the said date without granting the applicant an opportunity to prosecute the application and went ahead to give a judgment date in the said matter. 4. That upon being aggrieved by the said orders striking out the application to set aside the ex-parte proceedings, the Applicant instructed his Advocate to file an appeal which is currently pending determination. The Applicant further depones that the ex-parte judgment was later delivered on the 29th November, 2024 and the respondent in the said matter is now in the process of obtaining a decree in the matter. ELCA Case No. E055 Of 2024 RULING Page 2

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5. It is the Applicant’s claim that the decree holder is also advertising the suit land for sale and he may dispose of the land at any time from now and unless the application is allowed, the Applicant will suffer irreparable harm and the appeal will be rendered nugatory. 6. In addition, the Applicant deponed that he is willing to furnish any security as may be ordered by this Honourable Court and that the said delay in filing the instant application was occasioned by the delay in the signing of the order which is subject of the appeal by the lower court. That the said application is made in good faith with the sole aim of ensuring justice is not only done but also seen to be done. 7. The Application is opposed by the Respondent through his Replying Affidavit sworn on 14th January, 2025. The Respondent claims that the said application by the Appellant is an abuse of the Court as the same is frivolous, scandalous and an attempt to raise non-existence issues. He deponed that the trial Court did not issue any order on 7th December 2024 which was a Saturday, except the judgement of 28th November 2024 as claimed by the Appellant in prayer (c) of his application. 8. The Respondent further claims that the application is based on falsehoods and concocted information whose effect is to ELCA Case No. E055 Of 2024 RULING Page 3

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stall the proceedings in this case and deny the respondent the right to enjoy the fruits of the judgment herein. 9. The Respondent further avers that the trial Court record is clear that on 8th August, 2023, the Appellant was clearly warned that he had been granted a lot of indulgence since the suit was filed on 6th April, 2023. In addition, that the Appellant did not file defence up to and including 8 th August, 2023 when the suit was set down for formal proof on 25th January, 2024. 10. The Respondent claims that on 25 th January 2024, he had just been sworn in to testify, and the appellant once again made an application to be allowed to file a defence which was allowed. In addition, that upon being allowed to file the defence, the appellant embarked on schemes to delay the trial of the case by filing various frivolous applications which were all dismissed; such as filing the applications at the point of hearing of the case, thus abusing the court process and directly creating a mockery of sections 1, 1A, 3 and 3A of the Civil Procedure Act by clearly making it difficult for the respondent to testify, and deliberately failing to pay costs as ordered by the Court standing at Kshs. 60,000/= and incurring further costs standing at Kshs. 548, 000/= 11. The Respondent further claims that there is no justification at all for a party to come to court when he is unwilling to ELCA Case No. E055 Of 2024 RULING Page 4

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comply with the orders of the Court as and when such orders are issued. He denied paragraph 1 and 2 of the affidavits of Stephen Cherono and stated that it was the responsibility of the appellant to be present in court on 18 th October, 2024, even in the event the Advocate had mis diarised the hearing of the case and was not present in court. 12. The Respondent claims that there is no proper explanation which has been given why the advocate did not inform the applicant of the hearing date and at the same time did not diarize the same or appear for the hearing of the same and in addition, there has been inordinate delay in filing this application. 13. The Respondent depones that he holds title to the said land and he is in occupation after the decree herein was issued on 29th November, 2024 and the said decree was duly executed and he is in possession and use of the said land. He further depones that the applicant has not sworn an affidavit to explain where he was on 18 th November 2024 and why he did not attend the Court, notwithstanding that the Advocate was absent. 14. The Respondent claims that the appellant’s application for amendment and for setting aside proceedings were not paid for at the time of striking out and the Court exercised its discretion properly. In addition, it is the Respondent ELCA Case No. E055 Of 2024 RULING Page 5

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claim that the appellant had not also paid outstanding costs ordered against him and cannot now blame the Court. 15. The Respondent further deponed that the decree in this matter was issued on 29th November 2024 and duly executed to the fullest and he is already in use and occupation of his land. He depones that the applicant has not furnished any security herein for the performance of the decree herein or established any substantial loss that cannot be compensated by an award of damages and brought this application after undue delay. 16. The Respondent claims that the application herein is an abuse of the court process as previous applications were struck out for abusing the court process. That court fees were never paid and his own costs as ordered by the court totalling Kshs. 60,000/= payable before hearing, were never paid, and the application herein is an abuse of the court process as no application for stay was made to the Court that issued the decree in the first instance as required by law. 17. Lastly, it is the Respondent’s claim that in the absence of proof that the Applicant complied with the previous court orders, there is no basis to hear the Applicant on applications that were struck out on merit and for failure to obey Court orders. In addition, he depones that the orders being sought herein are discretionary and can only be ELCA Case No. E055 Of 2024 RULING Page 6

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granted on the basis that the Applicant has come to this Court with clean hands. He further depones that he should be allowed to enjoy the fruits of the judgement herein, adding that Applicant did not file an application for stay in the Court that first issued the decree, thus abusing the Court process. Submissions: 18. The court directed that the application be canvassed by way of written submissions. The parties complied, with the Appellant filing submissions dated 30th June, 2026 while the Respondent’s submissions are dated 4th May, 2026. Analysis and Determination: 19. I have considered the present application and the response thereto alongside the parties’ submissions filed herein. It is my view that the issues for determination are: i. Whether the amended application dated the 23 rd May 2025 meets the threshold for granting the orders of stay of execution of the judgment of the lower court pending the Appeal; and ii. Who shall bear the costs of the application? a) Whether the amended application dated the 23rd May 2025 meets the threshold for granting the orders of stay of execution of the judgment pending the intended Appeal; ELCA Case No. E055 Of 2024 RULING Page 7

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20. Upon the perusal of the amended application dated 23 rd May 2025, the substantive prayer subject of this ruling is for an order of stay of execution of the ex-parte judgment delivered on 28th November 2024 together with all consequential orders pending the hearing of the said application inter parties and pending the hearing and determination of the main appeal challenging the orders issued by the trial court on 7th December 2024. 21. The purpose of an application for stay of execution pending an appeal is to preserve the subject matter in dispute so that the rights of the Applicant, who is exercising the undoubted right of appeal, are safeguarded and the appeal if successful, is not rendered nugatory. 22. Stay of Execution is provided for under Order 42 Rule 6 of the Civil Procedure Rules, which provides as follows: 6. Stay in case of appeal [Order 42, rule 6] (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 ELCA Case No. E055 Of 2024 RULING Page 8

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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 subrule (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 (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. 23. All the conditions underscored in Order 42 Rule 6 of the Civil Procedure Rules are important and must be considered in an inextricable manner. The Applicant herein needs to satisfy the Court of the existence of the following conditions before he can be granted the stay orders: a) Substantial loss may result to the applicant unless the order is made. b) The application has been made without unreasonable delay, and c) Such security as the Court orders for the due performance of the decree or order as may ultimately ELCA Case No. E055 Of 2024 RULING Page 9

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be binding on the applicant has been given by the applicant. 24. In addition, it is important to note that the Honourable Court has discretionary powers to either grant or refuse an application for stay of execution pending appeal. The Court when granting the stay however, must balance the interests of the Applicant with those of the Respondent who holds a favourable order or decree. Put differently, a court must not only consider the Applicant’s right to pursue his appeal, but must also weigh this right against the successful litigant, who should not be deprived of the fruits of his judgment. The court is also called upon to ensure that no party suffers prejudice that cannot be compensated by an award of costs. 25. In determining the application herein, the court must first consider whether the Applicant herein has met all the preconditions for the grant of an order of stay of execution. 26. The first condition to be met is that the Applicant must demonstrate that he stands to suffer substantial loss if the stay of execution order is not granted. Substantial loss has been held to be the cornerstone of the jurisdiction of the Court in granting stay of execution. In the case of Kenya Shell Limited vs Benjamin Karuga Kigibu & Ruth Wairimu Karuga (1982-1988) l KAR 1018, the Court of Appeal stated that: ELCA Case No. E055 Of 2024 RULING Page 10

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“It is usually a good rule to see if Order 41 Rule 4 of the Civil substantiated. If Procedure there is Rules no can be evidence of substantial loss to the applicant, it would be a rare case when an appeal would be rendered nugatory by some other event. Substantial loss in its various forms, is the cornerstone of both jurisdictions for granting stay.” 27. Similarly, in RWW vs EKW (2019) KEHC 6523 (KLR), the court had this to say regarding substantial loss: “I have proceeded to determine whether the conditions stipulated for grant of stay have been met. On whether the appellant will suffer substantial loss, I am reminded of the sentiments of Gikonyo J in James Wangalwa & another v Agnes Naliaka Cheseto Misc Application No 42 of 2011 [2012] eKLR. 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. ELCA Case No. E055 Of 2024 RULING Page 11

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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. This is what substantial loss would entail, a question that was aptly discussed in the case of Silverstein vs. Chesoni [2002] 1KLR 867, and also in the case of Mukuma vs. Abuoga quoted above. The last case, referring to the exercise of discretion by the High Court and the Court of Appeal in the granting stay of execution, under Order 42 of the CPR and Rule 5(2) (b) of the Court of Appeal Rules, respectively, emphasized the centrality of substantial loss thus: “…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.” 11. Demonstrating what substantial loss is likely to be suffered, is the core to granting a stay order pending Appeal. Substantial loss is a relative term and more often than not can be assessed by the totality of the consequences which an applicant is likely to suffer if stay of execution is not granted and that applicant is therefore forced to pay the decretal sum. – See the decision of Musinga J (as he then was) in the case of Daniel Chebutul Rotich& 2 ELCA Case No. E055 Of 2024 RULING Page 12

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Others v Emirates Airlines Civil Case No. 368 of 2001.” 28. In an application for stay, therefore, it is not enough for a party to merely claim that substantial loss will result. It must be shown in specific details and particulars that they stand to suffer substantially if the orders sought are not granted. Following the principle that he who alleges must prove, the onus of demonstrating substantial loss will occur if the order of stay is not granted lies with the Applicant. The Applicant herein was required to show that he will be totally ruined in relation to the appeal if execution of the judgment delivered on 28th November, 2024 is not stayed together with other consequential orders. 29. In the present matter, as regards to substantial loss, the Appellant contends that the ex parte judgment was delivered on 28th November, 2024 in favour of the Respondent herein and the said Respondent is in the process of obtaining a decree in the said matter and the respondent as the decree holder might start the process of execution anytime where the applicant will suffer irreparable harm leading to substantial loss and that if the said application is not allowed adding that the Respondent is in the process of advertising the suit land with the intention of disposing it unless stay is granted. That the Respondent may proceed with execution of the judgment and has allegedly commenced the process of advertising ELCA Case No. E055 Of 2024 RULING Page 13

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the suit property for purposes of disposal. It is the applicant’s contention that such action would occasion irreparable harm and render the appeal nugatory. 30. The Respondent, on the other hand, disputes the said averment. It is the respondent’s contention that the Appellant has not demonstrated any substantial loss. He contends that the judgment does not confer upon him a right to dispose of the property in the manner alleged by the Applicant and that the Applicant has not demonstrated how execution of the decree would result in substantial loss to him. 31. In his Replying Affidavit, the Respondent herein disputes and contests the Appellant’s application herein terming it an abuse of the Court process as no application for stay was made to the court that issued the decree in the first instance as required by law. He further avers that the orders being sought herein are discretionary and can only be granted on the basis that the Applicant has come to Court with clean hands. In addition, it is the Respondent’s submission that the Appellant has failed to establish substantial loss as the decree which sought to be executed arose from the Respondents own property and the Appellant cannot suffer loss as the claimed. 32. In this instance, it is not in dispute that the judgment of th subordinate court delivered on 28th November, 2024 was in ELCA Case No. E055 Of 2024 RULING Page 14

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favour of the Respondent. The trial court in its said judgment issued the following reliefs: a) An Order of permanent injunction be and is hereby issued restraining the defendant either by himself, agents, servants, employees or anyone claiming through it from trespassing onto subdividing, fencing, taking possession or occupation of or constructing structures or in any other way interfering with the Plaintiffs proprietorship right to ownership, occupation, use, possession, enjoyment of all that parcel of land known as L.R SERGOIT/ SERGOIT BLOCK 3 (TUGEN) 220 or any part thereof. b) A Declaration be and is hereby issued that the interreference by the defendant with the plaintiffs’ ownership of the suit land is illegal and amounts to trespass. c) That the Plaintiffs be and are hereby awarded Kshs. 200,000 as general damages for trespass. d) As costs follow the event the plaintiff is awarded costs of the suit to be borne by the defendant.” 33. Therefore, I have considered the judgment delivered on 28th November 2024 and the orders arising therefrom. The substantive reliefs granted included a permanent injunction restraining the appeallant, his agents, servants, employees or persons claiming through him from trespassing upon, ELCA Case No. E055 Of 2024 RULING Page 15

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subdividing, fencing, taking possession or occupation of, constructing structures upon, or otherwise interfering with the Respondents' proprietorship, ownership, occupation, use, possession and enjoyment of the suit property. The Court also granted a declaration that interference with the Respondent’s ownership constituted illegal trespass and awarded general damages of Kshs.200,000 together with costs. 34. The Respondent has deponed that he is already in use and occupation of the suit land in execution of the decree of the trial court. This fact is not denied by the appellant. Indeed, I note from the court record that the appellant herein admitted this when he filed an application for contempt which the subject of this court’s ruling delivered on 23.04.2026. therefore, there is no denial that the respondent is the one currently in possession, occupation and use of the suit property. In my view, this court cannot stay that which has already been done. 35. Significantly, the decree as described by the trial court above does not contain an order directing the sale or transfer of the suit property by the Respondent. The Applicant’s apprehension that the Respondent may advertise or dispose of the property is therefore without sufficient evidence to demonstrate the alleged loss that he alleges he will suffer from execution of the decree. 36. The Court must determine substantial loss by reference to the decree and the consequences of its execution, rather than on the basis of speculative or collateral consequences. ELCA Case No. E055 Of 2024 RULING Page 16

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In the circumstances of the present case, the Applicant has not sufficiently demonstrated the nexus between execution of the decree dated 28th November 2024 and the alleged threatened disposal of the suit property. 37. I therefore find that the Applicant has demonstrated substantial loss to the requisite standard contemplated under Order 42 Rule 6(2) of the Civil Procedure Rules. 38. The second condition for the grant of an order of stay of execution is that the application must be made without undue delay. As regards to delay, the judgment sought to be stayed was delivered on 28 th November 2024, while the initial Application was presented on 18.12.2024. On the material before the Court, I would therefore not consider the period between the delivery of the judgment and the filing of the initial application to constitute unreasonable delay. The subsequent amendment of the Application on 23rd May 2025 does not, in itself, alter that finding. 39. The application has failed at the point of lack of substantial loss which has been held as the cornerstone of issuance of stay of execution orders. Consequently, this court finds that it is not necessary to consider the requirement of security for due performance of the decree. Orders: 40. The upshot is that, I find no merit in the application dated 23rd May, 2026, and the same is dismissed. As the appeal ELCA Case No. E055 Of 2024 RULING Page 17

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itself is yet to be heard on its merits, the costs of the application will be costs in the cause. 41. Orders accordingly. DATED, SIGNED and DELIVERED virtually at ELDORET on this 24TH day of SEPTEMBER, 2026 vide Microsoft Teams. HON. C. K. YANO ELC, JUDGE In the virtual presence of: Ms. Mureithi for the Appellant. Ms. Tum for the Respondent. Court Assistant - Laban. ELCA Case No. E055 Of 2024 RULING Page 18

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