Ali v Ibrahim

Background 4. The application arises from the judgment of the Principal Magistrate’s Court at Garissa delivered on 12 June 2025 in Garissa CMELC Suit No. E021 of 2022. In that judgment, the trial court determined the dispute in favor of the Respondent. 5. The Applicant, being dissatised with the judgment, lodged the present appeal. The memorandum of appeal challenges, among other matters, the trial court’s evaluation of the competing ownership documents and its treatment of the Applicant’s contention that his certicate of title preceded that relied upon by the Respondent. 6. Five days after delivery of the judgment, the Applicant led the present application. He states that the judgment was delivered in the absence of the parties and their advocates and that the trial court did not grant a stay of execution. He apprehends that the Respondent may execute the decree before the appeal is heard and determined. 7. The Respondent opposes the application. Her position is that the Applicant has not satised the conditions prescribed for the grant of stay of execution and that the application merely delays her enjoyment of the fruits of the judgment. 8. It is against that background that the Court is called upon to determine whether the Applicant has established a proper basis for staying execution pending the determination of the appeal. Part II: The Parties’ Cases The Applicant’s Case 9. The Applicant’s case is that the intended appeal is arguable and would be rendered nugatory if execution proceeds before it is heard and determined. He refers to the memorandum of appeal, which raises several complaints concerning the trial court’s evaluation of the evidence and determination of the competing claims to the suit property. 10. In particular, the Applicant contends that the trial court failed to give sucient consideration to the documents he produced in support of his claim of ownership. He maintains that his certicate of title predates that relied upon by the Respondent and that the appeal consequently raises substantial questions deserving consideration by this Court. 11. The Applicant further deposes that the Respondent has commenced, or is in the process of commencing, execution of the judgment. He asserts that execution would occasion him irreparable loss and damage and would render the appeal nugatory. 12. In his written submissions, the Applicant states that the Respondent has already extracted the decree and may proceed to evict him from the suit property. He argues that it would be prejudicial for the Respondent to evict him before the Court has determined his challenge to the judgment, particularly when he claims to hold a title that precedes the Respondent’s title. 13. The Applicant submits that the application was led without unreasonable delay, having been presented ve days after delivery of the impugned judgment. He further argues that the overriding objective under sections 1A and 1B of the Civil Procedure Act favours preservation of the status quo pending determination of the appeal. 14. In support of the application, the Applicant relies on Antoine Ndiaye v African Virtual University [2015] eKLR, James Wangalwa & Another v Agnes Naliaka Cheseto [2012] eKLR and Dova v Tarbo https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5799/eng@2026-09-24 2

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Transporters [2013] eKLR. He submits that the Court should balance his right to pursue the appeal against the Respondent’s right to enjoy the fruits of the judgment. 15. The Applicant therefore urges the Court to grant a stay of execution pending the hearing and determination of the appeal. On costs, he proposes that the costs of the application abide the outcome of the appeal. The Respondent’s Case 16. The Respondent opposes the application. She contends that the Applicant has not satised the conditions prescribed under Order 42 Rule 6 of the Civil Procedure Rules and is therefore not entitled to an order of stay. 17. The Respondent deposes that the application is intended to delay her enjoyment of the fruits of the judgment. She maintains that the trial court declared her the lawful proprietor of the suit property and that the Applicant has not established any exceptional circumstances justifying suspension of the judgment. 18. On substantial loss, the Respondent argues that the Applicant has made only a general assertion that execution would occasion irreparable loss and render the appeal nugatory. According to her, the Applicant has not identied the precise loss he is likely to suer or placed any evidence before the Court to support that allegation. 19. The Respondent further submits that the mere commencement or likelihood of execution does not amount to substantial loss because execution is a lawful consequence of a valid judgment. She contends that the Applicant must demonstrate some additional circumstance showing that execution would cause substantial and irreversible prejudice. 20. The Respondent also maintains that the enforcement measures sought to be stayed, including the Applicant’s vacation of the suit property, are reversible. She argues that, should the appeal ultimately succeed, the Court would retain the power to reverse the consequences of execution or grant such other appropriate relief as the circumstances may require. 21. In support of her position, the Respondent relies on Machira t/a Machira & Co. Advocates v East African Standard [2002] 2 KLR 63 and Stanley Kang’ethe Kinyanjui v Tony Ketter & 5 Others [2013] eKLR. She submits that the Court must balance the Applicant’s right of appeal against her corresponding right, as the successful litigant, to enjoy the fruits of the judgment. 22. The Respondent accordingly urges the Court to dismiss the application with costs. Part III: Issue for Determination 23. I have considered the Notice of Motion dated 17 June 2025, the adavits led in support of and in opposition to it, the parties’ written submissions and the authorities relied upon. 24. Although the parties have addressed several matters, including the arguability of the appeal and the competing claims of ownership over the suit property, the Court is not presently determining the merits of the appeal. Any denitive consideration of the validity, priority or evidential value of the parties’ respective ownership documents must await the hearing of the appeal. 25. The sole issue for determination at this stage is whether the Applicant has satised the legal threshold for granting a stay of execution pending the hearing and determination of the appeal. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5799/eng@2026-09-24 3

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26. 27. In determining that issue, the Court will consider whether: i. the Applicant has demonstrated that substantial loss may result unless stay is granted; ii. the application was made without unreasonable delay; and iii. the Applicant has oered, or is prepared to provide, adequate security for the due performance of such decree or order as may ultimately be binding upon him. Since the conditions prescribed under Order 42 Rule 6(2) of the Civil Procedure Rules are cumulative, the Applicant must satisfy each of them before the Court may properly exercise its discretion in his favor. Part IV: Applicable Legal Principles 28. The jurisdiction of the Court to grant stay of execution pending appeal is governed principally by Order 42 Rule 6 of the Civil Procedure Rules. Order 42 Rule 6(1) provides that an appeal does not, by itself, operate as a stay of execution of the decree or order appealed from. A party seeking to suspend execution must therefore obtain a specic order of stay from the court. 29. Order 42 Rule 6(2) prescribes the conditions upon which such an order may be granted. It provides: “ No order for stay of execution shall be made under subrule (1) unless— (a) the court is satised 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.” 30. It follows that an applicant seeking stay must establish three matters: rst, that substantial loss may result unless stay is granted; second, that the application was made without unreasonable delay; and third, that adequate security has been oered or will be furnished for the due performance of the decree. 31. The conditions prescribed under Order 42 Rule 6(2) are cumulative, not alternative. In Vishram Ravji Halai & Another v Thornton & Turpin (1963) Ltd [1990] KLR 365, the Court of Appeal held that the High Court’s discretion to grant stay of execution is fettered by the conditions prescribed in the rule, namely proof of substantial loss, the making of the application without unreasonable delay and the provision of security for the due performance of the decree. An applicant must therefore satisfy all the prescribed conditions before the Court may properly exercise its discretion in his or her favor. 32. The purpose of stay pending appeal is to preserve the subject matter of the appeal so that the appellate process is not rendered futile. That purpose must, however, be balanced against the principle that a successful litigant is ordinarily entitled to enjoy the fruits of the judgment delivered in his or her favor. 33. In Kenya Shell Limited v Kibiru & Another [1986] KLR 410, the Court of Appeal identied substantial loss as the central consideration in an application for stay of execution. The Court emphasized that, in the absence of evidence of substantial loss, it would be dicult to justify depriving a successful litigant of the fruits of the judgment. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5799/eng@2026-09-24 4

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34. Substantial loss does not arise merely because execution has commenced or is likely to commence. Execution is the lawful consequence of a judgment and, without some additional circumstance, the ordinary consequences of execution do not constitute substantial loss. 35. This principle was explained in James Wangalwa & Another v Agnes Naliaka Cheseto [2012] eKLR, where the Court stated that the fact that execution has been put in motion, or is likely to be put in motion, does not by itself amount to substantial loss. The applicant must establish other factors demonstrating that execution would create a state of aairs that would irreparably aect or negate the essential benet of a successful appeal. 36. The burden of proving substantial loss rests upon the applicant. It is not sucient for an applicant merely to reproduce the language of Order 42 Rule 6 or assert, in general terms, that substantial loss will occur or that the appeal will be rendered nugatory. 37. In Machira t/a Machira & Co. Advocates v East African Standard [2002] 2 KLR 63, the Court held that an applicant relying on substantial loss must specify the nature of the anticipated loss, provide its details or particulars and place before the Court sucient evidential material from which the asserted loss may reasonably be inferred. A stay cannot properly issue on the basis of vague apprehension, speculation or an unparticularised allegation of prejudice. 38. The requirement of substantial loss serves to distinguish prejudice that materially threatens the ecacy of the appeal from the ordinary inconvenience or disadvantage that accompanies lawful execution. The Court must be satised that, unless stay is granted, execution will produce consequences that cannot reasonably be reversed or adequately remedied should the appeal succeed. 39. The requirement that the application be made without unreasonable delay ensures that a party genuinely apprehending substantial loss approaches the Court promptly. Delay is assessed in light of the circumstances of each case, including the period between delivery of the impugned decision and the ling of the application and whether any explanation has been given for the lapse of time. 40. Security for the due performance of the decree protects the decree-holder against prejudice arising from the suspension of execution. Although the Court retains discretion to determine the nature and amount of security, an applicant must demonstrate willingness to comply with such reasonable terms as the Court may impose. 41. The Applicant has also invoked the overriding objective embodied in sections 1A and 1B of the Civil Procedure Act. Those provisions require the Court to facilitate the just, expeditious, proportionate and aordable determination of civil proceedings. They inform the Court’s exercise of discretion and require it to balance the procedural rights and legitimate interests of both parties. 42. The overriding objective does not, however, displace or dilute the express requirements of Order 42 Rule 6(2). It was not intended to supplant the substantive conditions governing stay of execution or to confer relief where those conditions have not been satised. The Court is therefore not entitled to invoke sections 1A and 1B as a substitute for proof of substantial loss, promptitude and security. 43. Ultimately, the Court must balance two legitimate but competing interests: the Applicant’s right to pursue an appeal whose outcome remains capable of practical enforcement, and the Respondent’s accrued right to enjoy the benet of the judgment. That balance must be struck by applying the conditions prescribed under Order 42 Rule 6(2) to the evidence placed before the Court. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5799/eng@2026-09-24 5

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Part V: Analysis and Determination 44. The application was led on 17 June 2025, ve days after delivery of the impugned judgment. I am therefore satised that it was made without unreasonable delay. Prompt ling, however, satises only one of the cumulative requirements under Order 42 Rule 6(2) of the Civil Procedure Rules. 45. The central question is whether the Applicant has demonstrated that he will suer substantial loss unless stay is granted. In paragraph 4 of the supporting adavit, the Applicant states that the Respondent is in the process of commencing execution and that: “ The said execution will denitely occasion me irreparable loss and damage thus rendering the appeal nugatory.” 46. Beyond that general assertion, the Applicant does not identify the nature of the loss he is likely to suer. He does not explain how the anticipated execution would produce consequences incapable of reversal or adequate redress should the appeal ultimately succeed. No particulars of the alleged irreparable loss are provided, and no evidential material has been placed before the Court to support the assertion. 47. The supporting adavit therefore does no more than reproduce the conclusion that the Applicant will suer irreparable loss and that the appeal will be rendered nugatory. As stated in Machira t/a Machira & Co. Advocates v East African Standard, a general assertion of substantial loss is insucient. The anticipated loss must be specied, particularised and supported by evidence. 48. The Applicant submits that the Respondent has extracted the decree and is in the process of executing the judgment. He further refers to the possibility of eviction from the suit property. However, the commencement or likelihood of execution does not, without more, amount to substantial loss. Execution is a lawful consequence of a judgment and cannot, merely because it is inconvenient to the unsuccessful party, justify the grant of stay. 49. In accordance with James Wangalwa & Another v Agnes Naliaka Cheseto, the Applicant was required to demonstrate some additional circumstance showing that execution would create a state of aairs that would irreparably prejudice the essential benet of a successful appeal. No such circumstance has been demonstrated. 50. The Applicant also places considerable emphasis on the contention that his certicate of title predates the title relied upon by the Respondent. That contention forms part of the grounds upon which the judgment of the trial court is challenged. Its merits will be considered when the appeal is heard. 51. At this interlocutory stage, the Court must avoid making ndings on the validity, priority or evidential weight of the competing ownership documents. More importantly, the existence of an arguable appeal does not dispense with the statutory obligation to demonstrate substantial loss under Order 42 Rule 6(2). 52. The principles governing an application for stay before this Court dier from those applicable to an application under Rule 5(2)(b) of the Court of Appeal Rules. Under Order 42 Rule 6, the Applicant must satisfy the express statutory conditions of substantial loss, absence of unreasonable delay and security. The arguability of the appeal cannot take the place of any of those requirements. 53. The Respondent submits that the consequences of execution, including the Applicant’s vacation of the suit property, are reversible and that the Court would retain power to grant appropriate relief should the appeal succeed. The Applicant has not demonstrated, by adavit evidence, why restoration or other appropriate relief would be unavailable or inadequate in those circumstances. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5799/eng@2026-09-24 6

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54. I took over this matter from my predecessor upon joining the Bench. This ruling is being delivered more than one year after the application was led. The passage of time has not been explained, but there is no material before me upon which it may fairly be attributed to the Applicant. I therefore do not treat that delay as a default on his part. 55. The intervening period is nevertheless relevant in assessing the practical necessity of the relief sought. If execution was likely to occasion the immediate, grave and irreversible prejudice alleged by the Applicant, the Court would reasonably expect evidence showing what has occurred since delivery of the judgment and what identiable prejudice presently remains to be prevented. 56. No further adavit or other evidence has been placed before the Court showing that the apprehended loss has occurred or explaining the present state of execution. If the grave consequences anticipated by the Applicant have already occurred, an order of stay would not reverse them. If they have not occurred during the intervening period, the allegation that they were imminent and irreparable is materially weakened. 57. In either event, the Court must guard against issuing orders in vain or granting relief that has become merely academic. Judicial orders must respond to demonstrated and existing legal prejudice; they should not issue upon conjecture or speculation. 58. A successful litigant should not be deprived of the fruits of judgment merely because the unsuccessful party has lodged an appeal. Stay pending appeal recognizes the need to balance the decree-holder’s accrued right to enforce the judgment against the appellant’s right to preserve the ecacy of the appeal. 59. That balance does not require an automatic suspension of every judgment once an appeal is led. It is achieved through faithful application of the conditions prescribed under Order 42 Rule 6(2). Where substantial prejudice arising from execution has neither been particularised nor proved, there is no proper basis for suspending the decree-holder’s right to enjoy the judgment. 60. The Applicant also invites the Court to invoke the overriding objective under sections 1A and 1B of the Civil Procedure Act. Those provisions do not supplant, oust or replace the substantive requirements governing stay of execution. The Court cannot rely upon the overriding objective to supply evidence that the Applicant was required, but failed, to place before it. 61. Order 42 Rule 6(2) is framed in mandatory negative terms: no order for stay of execution shall be made unless the stipulated requirements are satised. The overriding objective cannot therefore provide an independent basis for granting stay where the Applicant has failed to establish substantial loss. 62. I accordingly nd that, although the application was led without unreasonable delay, the Applicant has failed to demonstrate that substantial loss may result unless stay is granted. 63. The conditions prescribed under Order 42 Rule 6(2) are cumulative. Failure to satisfy the requirement of substantial loss is therefore dispositive of the application. In those circumstances, it is unnecessary to consider whether the Applicant has satised the requirement relating to security for the due performance of the decree. Part VI: Disposition 64. Having found that the Applicant has failed to demonstrate substantial loss, I am not satised that the application meets the threshold for the grant of stay of execution under Order 42 Rule 6(2) of the Civil Procedure Rules. 2010 65. The Notice of Motion dated 17 June 2025 is therefore without merit and is dismissed. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5799/eng@2026-09-24 7

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66. Costs ordinarily follow the event. I nd no reason to depart from that principle. The Applicant shall therefore bear the costs of the application. 67. For the avoidance of doubt, the dismissal of the application does not determine the merits of the pending appeal, which shall be heard and determined in accordance with the applicable law and procedure. 68. Accordingly, I make the following orders: 69. i. The Notice of Motion dated 17 June 2025 is dismissed. ii. The Applicant shall bear the Respondent’s costs of the application. Orders accordingly. DATED, SIGNED AND DELIVERED THIS 24TH DAY OF SEPTEMBER 2026. DELIVERED VIRTUALLY ON THE TEAMS PLATFORM DR. OMONDI R. OWINO, FCIArb JUDGE IN THE PRESENCE OF: Ms Wafula h/b for Dr. Upendo for the Appellant/Applicant Ms Gichira for the Respondent Mr. Mohammed Dabar (Court Assistant) https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5799/eng@2026-09-24 8

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