Ngala & 7 others v Habiba Investments Ltd

5. b. Spent. c. That the Honourable Court be pleased to grant an order of stay of execution and/or stay of enforcement of the orders issued on 6th March 2026 in Kwale MCELC No. E009 of 2026 pending the hearing and determination of the Appeal. d. That the Honourable be pleased to issue any other or further Order that it deems t to meet the ends of justice. e. That the costs of this application be provided for. The application was premised on the grounds and testimonial facts and averments made out under the 21 Paragraphed Supporting adavit of Jeremiah Omwange Ounde, the 7th Appellant herein, where he averred as follows that:a. He was the 7th Defendant/Respondent herein and was well seized of the matters deponed to in the Supporting Adavit, hence competent to swear the same. b. He had the authority of the other Appellants/Applicants to swear the Adavit and plead on their behalf. Annexed and marked as “JOO - 1” was a duly executed Authority to that eect. c. The facts contained in the Adavit were true and correct and, unless otherwise indicated, were within his personal knowledge. To the extent that he made legal submissions, he did so on the basis of legal advice received from his advocates on record, M/s Mwenda Miriti & Co. Advocates. d. On 6th March, 2026, the matter was coming up for hearing of the application dated 23rd January 2026, when the Honourable Court delivered orders in Kwale MCELC No. E009 of 2026, inter alia, expunging the Applicants’ Replying Adavit from the record and granting injunctive orders against them. Annexed and marked as “JOO - 2” was a copy of the said Order. e. The Court expunged the Applicants’ Replying Adavit on the ground that it had been led out of time. Annexed and marked as “JOO-3” were copies of the relevant proceedings. f. The delay in ling the said Replying Adavit was neither deliberate nor intended to obstruct the proceedings, but was occasioned by the fact that he had been indisposed and was therefore unavailable to swear the Adavit and provide the requisite supporting documents within the timelines directed by the Court. Annexed and marked as “JOO - 4” were copies of the relevant medical records. g. By reason of his illness and unavailability, the Replying Adavit could not be executed and led within the period directed by the Court. h. Despite being informed of his illness and the circumstances that had occasioned the delay, the Court proceeded to determine the application, thereby, in his view, denying the Applicants an opportunity to be heard and to place their response before the Court. i. In determining the application, the Court further granted orders allowing the Respondent exclusive and uninterrupted use of the alleged road reserve adjacent to the parcel number Kwale/Diani Beach Block/1548. j. The Court also issued injunctive orders restraining the Applicants from accessing, utilizing or carrying on business on the said property. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5972/eng@2026-09-21 2

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k. The said orders had severely aected the Applicants’ business operations and livelihood, notwithstanding that they had operated their business on the premises for a period of approximately twenty (20) years. l. The Respondent had not demonstrated ownership of the alleged road reserve, and the question of ownership thereof remained disputed and had not yet been conclusively determined by the Court. m. Being aggrieved by the decision of the trial Court, the Applicants had since lodged an Appeal challenging the entirety of the said decision. Annexed and marked as “JOO - 5” was a copy of the Memorandum of Appeal. n. The Appeal raised serious and arguable issues of law, including whether the Applicants had been denied their constitutional and procedural right to be heard and whether the injunctive orders had been properly and lawfully granted in the circumstances of the case. o. Unless the orders issued on 6th March, 2026 were stayed, the Respondent was likely to proceed with their enforcement, including with the assistance of the police as directed by the Court. p. If the impugned orders were enforced before the Appeal was heard and determined, the Applicants stood to suer substantial and irreparable loss, including disruption of their established business operations and livelihood. q. The enforcement of the impugned orders would further expose the Applicants to the risk of being denied access to and use of the premises on which they had conducted their business for approximately twenty (20) years. r. Unless the execution and enforcement of the impugned orders were stayed, the substratum of the Applicants’ Appeal could be substantially altered, thereby rendering the intended or led Appeal nugatory. s. The circumstances surrounding the expunging of the Replying Adavit, the Applicants’ alleged denial of an opportunity to be heard, the disputed ownership of the alleged road reserve and the adverse eect of the injunctive orders constituted sucient grounds for the intervention of the Appellate Court. t. The Application had been brought without unreasonable delay and in good faith, following the issuance of the impugned orders and the ling of the Appeal. u. In the circumstances, it was in the interest of justice, fairness and the just determination of the dispute that this Honourable Court be pleased to grant the orders sought in the Application, including the orders necessary to preserve the subject matter pending the hearing and determination of the Appeal. v. The grant of the orders sought was necessary to safeguard the Applicants’ right of appeal and to ensure that the Appeal, if ultimately successful, was not rendered nugatory by the enforcement of the impugned orders before its determination. w. The circumstances giving rise to the Application were not occasioned by any deliberate or contumelious conduct on the part of the Applicants, but arose substantially from the 7th Applicant’s indisposition, which aected his ability to execute and le the Replying Adavit within the prescribed period. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5972/eng@2026-09-21 3

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x. Consequently, he swore the Supporting Adavit in support of the Application, which he verily believed to be merited, and maintained that the facts deponed to therein were true to the best of his knowledge, information and belief, save for matters deponed to on information, the sources whereof had been disclosed. III. The responses by the Defendant 6. The Defendant, responded to the Application through a Replying Adavit sworn on April, 2026 by DR. KAWALJEET SINGH REKHI, wherein the Aant averred as follows that: i. He was a Director of the legal entity trading in the names and style of “Habiba Investments Limited”, the Plainti/Respondent herein, and was well conversant with the matters arising in the suit and was duly authorized by the Company to swear the Replying Adavit on its behalf. Annexed and marked as “DKSR - 1” was a copy of the Board Resolution authorizing him to swear the Adavit. ii. He had read and understood the contents of the Appellants' Application dated 11th March, 2026 together with the Supporting Adavit of Jeremiah Omwange Ounde sworn on 11th March, 2026. The nature and import of the Application had been fully explained to him by his Advocates on record, and having understood the same, he responded thereto as set out in the Replying Adavit. iii. The Application arose from the Ruling delivered by Hon. Joy Mutimba on 6th March, 2026 in the case of:- “Habiba Investments Limited – Versus - Felister Mukai Ngala & 7 Others (Kwale MCELC/E009/2026” and sought, “inter alia”, orders for stay of execution and/or enforcement of the orders issued on 6th March 2026 pending the hearing and determination of the Application and the Appeal. iv. The Plainti/Respondent was the duly registered and benecial owner of land parcel number Kwale/Diani Beach Block/1548, having acquired the property in the year 2006. Annexed and marked as “DKSR - 2” was a copy of the Title Deed. v. The only direct main road access to the Plainti/Respondent's property, being a roadside property, was through a road reserve falling under the jurisdiction of the Kenya Rural Roads Authority (KeRRA). vi. The Plainti/Respondent had lawfully applied to and obtained approval from KeRRA to use the said road reserve for purposes of accessing parcel number Kwale/Diani Beach Block/1548 and undertaking commercial developments on the property. Annexed and marked as “DKSR - 3” were copies of the relevant correspondence dated 1st April, 2025, 8th April, 2025 and 30th April, 2025 respectively. vii. The Plainti/Respondent had further obtained the requisite permits and licences necessary for the construction and development of commercial facilities on land parcel numbers Kwale/ Diani Beach Block/1548. viii. KeRRA, vide its letter dated 14th May, 2025, granted the Plainti/Respondent consent to construct an access for safer entry and exit to Plot No. 1548/Diani Beach Block/Kwale County along Diani Beach Road (C213), subject to specied conditions which the Plainti/ Respondent undertook to comply with. Annexed and marked as “DKSR - 4” was a copy of the said letter. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5972/eng@2026-09-21 4

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ix. The Plainti/Respondent had at all material times been ready and willing to comply with the conditions stipulated in the letter dated 14th May, 2025. x. The Plainti/Respondent was, however, unable to comply with the condition requiring completion of the construction works within six (6) months from the date of approval because the Appellants had encroached upon and obstructed the road reserve, thereby preventing the Plainti/Respondent and its contractors from accessing the property and undertaking the approved construction works. xi. The Appellants had encroached upon and trespassed on the road reserve, erected structures thereon and operated a business on the said road reserve, thereby obstructing the Plainti/ Respondent's access and preventing it from making use of the road reserve for purposes of accessing its property. xii. The Plainti/Respondent's contractors had also encountered signicant hostility and resistance from the Appellants and/or their agents or employees, who had erected unauthorized structures on the road reserve without the express written authority of KeRRA. xiii. Vide a letter dated 30th June, 2025, the Plainti/Respondent informed KeRRA of the Appellants' alleged illegal encroachment and obstruction and explained that the same was preventing the Plainti/Respondent from carrying out the necessary construction works and thereby aecting its ability to comply with the six-month construction completion period stipulated under Condition 13 of the consent issued by KeRRA. Annexed and marked as “DKSR - 5” was a copy of the said letter. xiv. Following the said notication, KeRRA Head Oce, vide its letter dated 16th July, 2025 addressed to the Regional Director, Kwale Region, conrmed, upon receipt of a topo-cadastral survey report, that there was clear encroachment upon sections of the road reserve. xv. KeRRA further conrmed that the encroachment was in contravention of Clause 49.1 (a) of the Roads Act, 2007 and Section 91 (1) of the Traffic Act, Cap. 403, and directed the Regional Director to issue written notices to the encroachers requiring them to remove the unauthorized structures within thirty (30) days, failing which the Authority would demolish and remove the same at the encroachers' own cost. Annexed and marked as “DKSR - 6” was a copy of the letter dated 16th July, 2025. xvi. Pursuant thereto, the KeRRA Regional Director, Kwale Region, issued a formal Notice to Remove Unauthorised Structures dated 15th August, 2025, requiring the Appellants to remove the said structures within thirty (30) days. xvii. The Appellants failed and/or refused to comply with the said Notice. Annexed and marked as “DKSR - 7” was a copy of the Notice dated 15th August, 2025. xviii. Following the Appellants' failure to comply with the KeRRA Notice, the Plainti/ Respondent wrote to KeRRA informing the Authority that the continued obstruction was preventing it from undertaking the necessary construction works within the stipulated sixmonth period and sought an extension of time to complete the works. Annexed and marked as “DKSR-8” was a copy of the relevant correspondence dated 28th August, 2025. xix. The Plainti/Respondent had exhausted all available avenues of amicable resolution and administrative enforcement, including its direct requests to the Appellants to vacate, the https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5972/eng@2026-09-21 5

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formal KeRRA Notice to remove the unauthorized structures and the notication to KeRRA concerning the encroachment. xx. The Appellants' persistent refusal to comply with the notices left the Plainti/Respondent with no practical alternative but to institute proceedings in the Civil case of Kwale MCELC No. E009 of 2026 as a last resort in order to obtain judicial relief. xxi. KeRRA, vide its letter dated 29th January, 2026, sought the assistance of the County Commander of Police, Kwale County, conrming that the Plainti/Respondent had been granted permission to construct an access to Plot No. 1548/Diani Beach Block/Kwale County along Road C213. xxii. KeRRA further conrmed that the Plainti/Respondent had been unable to access the said property due to the unauthorized structures erected on the road reserve, that KeRRA had previously issued a thirty (30) day Notice to the persons who had erected the unauthorized structures and that the Notice had lapsed without compliance. xxiii. KeRRA consequently requested the County Commander of Police to provide security and enforcement assistance on 5th February, 2026 towards the removal of the unauthorized structures from the road reserve. Annexed and marked as “DKSR - 9” was a copy of the letter dated 29th January, 2026. xxiv. Contrary to the Appellants' assertions, the Plainti/Respondent had demonstrated its lawful entitlement to the use of the road reserve by virtue of the consent and approval granted by KeRRA. xxv. The Plainti/Respondent did not claim ownership of the road reserve. Rather, its case was that it had obtained lawful and express consent from KeRRA, being the authority with jurisdiction over the road reserve, to use the same for purposes of accessing its property and undertaking the approved development. xxvi. The allegation by the Appellants that the Plainti/Respondent had not demonstrated ownership of the alleged road reserve was therefore misleading and misconceived, as ownership of the road reserve was not the basis upon which the Plainti/Respondent sought to utilize the same. xxvii. On 18th February, 2026, the Advocates for the respective parties appeared before the learned Magistrate, who issued clear and unequivocal directions requiring the Appellants to le and serve a Replying Adavit within three (3) days. xxviii. The Plainti/Respondent was correspondingly granted three (3) days within which to le any further documents, and the matter was xed for “inter – partes” hearing on 27th February, 2026. xxix. On 27th February, 2026, the Court did not sit as the Honourable Magistrate was attending a supervisory visit at Shimo la Tewa Borstal Institution. Annexed and marked as “DKSR - 10” was a copy of the Notice dated 26th February, 2026. xxx. When the matter subsequently came up on 6th March, 2026 for mention whereby the Advocate for the Plainti/Respondent informed the Court that the Appellants had served him with their Replying Adavit on 5th March, 2026. xxxi. The said Replying Adavit had been led on 5th March, 2026 at approximately 1422 hours, without leave of the Court and outside the period expressly granted by the Learned Magistrate on 18th February, 2026. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5972/eng@2026-09-21 6

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xxxii. The Appellants' conduct demonstrated their failure to comply with the directions of the Court, as they had neither led the Replying Adavit within the stipulated period nor sought leave of Court to le the same out of time. xxxiii. The Appellants' subsequent attempt to attribute the delay to the illness of the 7th Appellant/ Applicant, Jeremiah Omwange Ounde, was without merit. xxxiv. There were eight (8) Appellants in the proceedings, all of whom had been duly authorized to act through the 7th Appellant. The illness of one individual could not, in law or logic, excuse all the eight (8) Appellants from complying with a clear Court order within the prescribed period, particularly in the absence of any application for extension of time. xxxv. No medical evidence had been placed before the lower Court at any one time or on 6th March, 2026 to substantiate the allegation of illness relied upon by the Appellants in explaining their failure to comply with the Court's directions. xxxvi. The Learned Magistrate therefore correctly noted that there was no medical report on the Court record at the material time to substantiate the allegation of illness. xxxvii. The medical report from Likoni Sub-County Hospital, marked as “JOO - 4” in the Appellants' Supporting Adavit, indicated that the 7th Appellant had been placed o duty for two weeks, from 19th February, 2026 to 5th March, 2026. xxxviii. Even assuming the contents of the medical report to be correct, the three-day period granted by the Court on 18th February, 2026 expired on or about 21st February, 2026, and no satisfactory explanation had been provided as to why the remaining seven (7) Appellants could not swear and le the Replying Adavit within the prescribed period. xxxix. There was further a discrepancy concerning the date of the medical report relied upon by the Appellants, as the report was dated 9th March, 2026, being three (3) days after the matter had last come before the Court on 6th March, 2026. xl. The Respondent further noted that the medical report indicated that the 7th Appellant had been treated for epigastric pain, diarrhoea mixed with blood and vomiting, and the Respondent questioned the circumstances and timing of the medical evidence relied upon to explain the failure to comply with the Court's directions. xli. No application for stay, extension of time or leave to le the Replying Adavit out of time had been brought before the lower Court within the period directed by the Court. xlii. In the circumstances, the Learned Magistrate properly exercised her judicial discretion in expunging the Replying Adavit led out of time and without leave of Court. xliii. The decision of the learned Magistrate was a proper exercise of judicial discretion and was not a mere procedural technicality as characterized by the Appellants. xliv. The Appellants had failed to satisfy the requirements for the grant of a stay of execution pending appeal under Order 42 Rule 6 of the Civil Procedure Rules, 2010, including demonstrating that substantial loss may result unless the order for stay was made and that the application had been made without unreasonable delay. SUBPARA xlv. The Appellants had further failed to demonstrate that the Appeal raised serious and arguable issues warranting the exercise of this Honourable Court's discretion in their favour. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5972/eng@2026-09-21 7

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xlvi. The allegation that the Appellants' right to be heard had been violated was without merit, as the Appellants had been represented by Counsel on 18th February, 2026, had been aorded an opportunity to le a response and had been expressly directed to do so within a specied period. xlvii. The Learned Magistrate's decision to expunge the Replying Adavit led out of time constituted a proper exercise of judicial discretion and was intended to uphold the Court's directions, orderly conduct of proceedings and ecient administration of justice. xlviii. The Plainti/Respondent had demonstrated its lawful entitlement to utilize the road reserve pursuant to the consent and approval issued by KeRRA, the authority exercising jurisdiction over the road reserve. xlix. The Appellants' assertion that the Plainti/Respondent had failed to demonstrate ownership of the road reserve did not undermine the Plainti/Respondent's case, since the Plainti/ Respondent's claim was founded on the lawful consent granted by KeRRA and not on proprietary ownership of the road reserve. l. The Plainti/Respondent had invested substantial sums of money towards the development of the commercial property situated on parcel number Kwale/Diani Beach Block/1548, had obtained the requisite permits and licences and was subject to strict timelines imposed by KeRRA for completion of the approved access works. li. The Plainti/Respondent's ability to comply with the conditions imposed by KeRRA had been frustrated by the Appellants' continued occupation and obstruction of the road reserve. lii. The Appellants had failed to place before the Court cogent evidence demonstrating that their Appeal would be rendered nugatory in the absence of a stay of execution. liii. On the contrary, the grant of a stay would occasion substantial and continuing prejudice to the Plainti/Respondent, which had invested signicant sums of money, including funds obtained from external investors, towards the development of the commercial project on Kwale/Diani Beach Block/1548. liv. Any further delay in obtaining access through the road reserve would result in nancial losses, disruption of construction timelines and continued accrual of nancing costs without corresponding progress on the development. lv. The Appellants were trespassers who had occupied and erected structures upon a public road reserve without lawful authority and in deance of the notices issued by KeRRA requiring them to vacate and remove the unauthorized structures. lvi. The Plainti/Respondent, by contrast, held a lawful statutory consent from KeRRA for the use of the road reserve and had obtained the requisite permits and licences for the development of its property. lvii. If the stay of execution were granted and/or the Appellants were permitted to continue occupying the road reserve, the Plainti/Respondent would suer substantial and irreparable prejudice, including continued inability to access its property, inability to comply with its contractual and nancial obligations, disruption of its development project and continued loss of business revenue. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5972/eng@2026-09-21 8

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7. lviii. The Appellants' assertion that they had operated a business on the road reserve for approximately twenty (20) years did not, in itself, confer upon them any legal entitlement to continue occupying or utilizing a public road reserve without the requisite statutory approvals. lix. Prolonged occupation or use of public land without lawful authority could not confer upon the Appellants any proprietary or legal right capable of defeating the Plainti/Respondent's lawful access rights. lx. The Appellants had therefore failed to demonstrate sucient grounds upon which this Honourable Court could properly exercise its discretion in their favour and grant the stay sought. lxi. It was consequently in the interests of justice that this Honourable Court decline to maintain the stay of execution beyond 7th May, 2026 and dismiss the Appellants' Notice of Motion dated 11th March, 2026, with costs to the Plainti/Respondent. lxii. He consequently swore the Replying Adavit in opposition to the Appellants' Application and maintained that the Application was devoid of merit and ought to be dismissed with costs. lxiii. What was deponed to hereinabove was true and correct to the best of his knowledge, information and belief, save for matters of law and information whose sources had been disclosed. The Defendant further led a Supplementary Adavit dated 24th April, 2026 sworn by JOSEPH BARTMAUES MUTISYA, where he deponed as follows that:i. He was an adult of sound mind and a business man within Diani and located within the suit property area, and therefore competent to swear this Adavit. ii. Previously, he operated a business on he access road adjacent to the suit property from the year 2006 and vide the notice to remove unauthorised structures dated 15th August, 2025, he vacated the access road and relocated my business near the suit property. iii. He operated his business next to Jeremiah Omwange Ounde, the 7th Appellant herein and he was well acquainted with his daily activities as his business premises was near mine. iv. He had read and/or been informed by Counsel for the Respondent of the contents of the Supporting Adavit dated 11th March, 2026 sworn by Jeremiah Omwange Ounde in supporting the Appellants' explanation for delay, wherein he claimed that he was unwell and therefore unable to swear the adavit within the time directed by the lower court. v. He wished to state that during the period in which the 7th Appellant alleged that he was unwell, he personally saw him on several occasions present at his shop/premises, conducting his normal day- to -day activities. vi. In particular, on diverse dates within the said period, he observed him:- vii. a) Opening and operating his shop. b) Serving customers and interacting with members of the public; and c) Moving about without any visible signs of illness or incapacity. To the best of his knowledge and observation, the 7th Appellant never appeared incapacitated or unable to attend to his normal aairs during the period he alleged to have been unwell. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5972/eng@2026-09-21 9

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8. viii. In view of the foregoing, it was his honest belief that the explanation given for the delay in ling the Appellants' Adavit in the lower Court, was not the true reection of the 7th Appellant's condition during the material time. ix. He swore this Adavit in support of the Respondent's position that the delay was not justied and that the reasons advanced were misleading to this Honourable Court. x. What was deponent to herein was true to the best of his knowledge, information and belief. The Defendant further led a Supplementary Adavit dated 18th March, 2026 sworn by Dinah Nthenya Paul, where she deponed as follows that: i. She was an adult of sound mind and a resident and business woman within Diani and located within the suit property area, and therefore competent to swear this Adavit. ii. She was a neighbour to Jeremiah Omwange Ounde, the 7th Appellant herein and was well acquainted with his daily activities as his business premises was situated near his. iii. He had read and/or been informed by Counsel for the Respondent of the contents of the Supporting Adavit dated on 11th March, 2026 sworn by Jeremiah Omwange Ounde in support of the Appellant's explanation for delay, wherein he claimed that he was unwell and thereby unable to swear the adavit within the time directed by the lower Court. iv. During the period in which the 7th Appellant alleged that he was unwell, he personally saw him on several occasions present at his shop/business premises, conducting his normal day-to-day activities. In particular, on diverse dates within the said period, he observed him: a) Opening and operating his shop; b) Serving customers and interacting with members of the public; and c) Moving about without any visible signs of illness or incapacity. v. To the best of his knowledge and observation, the 7th Appellant never appeared to have been incapacitated or unable to attend to his normal aairs during the period he alleged to been unwell. vi. The 7th Appellant only closed his shop and left the area approximately a week later to attend a burial, which was the only instance he noted his absence from his business. vii. In view of the foregoing, it was his honest belief that the explanation given for the delay in ling the Appellants Adavit in the lower Court, was not a true reection of the 7th Appellant's condition during the material time. viii. He swore this Adavit in support of the Respondent's position that the delay was not justied and that the reasons advanced was misleading to this Honourable Court. IV. The response by the Applicant to the Replying Adavit 9. The 7th Appellant/Applicant led a Supplementary Adavit in opposition to the Respondent’s Replying Adavit. The adavit was sworn by Jeremiah Omwange Ounde on 7th May, 2026 wherein he deposed as follows that:i. He was the 7th Appellant/Applicant herein and was competent to swear the Supplementary Adavit in response to the Replying Adavit of Dr. Kawaljeet Singh Rekhi dated April, 2026 https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5972/eng@2026-09-21 10

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and the Supplementary Adavits of Joseph Bartmaues Mutisya and Dinah Nthenya Paul, sworn on 24th April, 2026 and 18th March, 2026 respectively, both led in opposition to the Appellants' Notice of Motion application dated 11th March, 2026. ii. He had read and fully understood the contents of the said adavits and wished to respond to the averments contained therein. iii. The Appellants never disputed the Respondent's title to Kwale/Diani Beach Block/1548 as such. Their dispute was whether the Respondent's ownership of that parcel extended to the adjacent road reserve or conferred upon the Respondent any proprietary or legal interest in the road reserve sucient to justify the injunctive and exclusionary orders issued by the lower Court. iv. The road reserve adjacent to Kwale/Diani Beach Block/1548 was public land falling under the jurisdiction of KeRRA, and the Respondent's title to its own parcel did not, in itself, confer ownership of or proprietary rights over the road reserve. v. The Respondent's reliance upon the KeRRA consent did not establish ownership of the road reserve, as the consent merely authorized the Respondent to construct an access road on the road reserve and did not transfer ownership thereof to the Respondent. vi. The KeRRA consent did not, in his view, confer upon the Respondent an automatic right to exclude the Appellants from the road reserve, particularly considering that the Appellants had conducted their businesses at the location for approximately twenty (20) years. vii. The KeRRA consent was subject to conditions, and the Respondent's inability to comply with the conditions imposed therein could not properly be attributed to the Appellants without a full determination of the competing rights of the parties. viii. KeRRA was not a judicial authority and its consent could not, in itself, amount to a judicial order authorizing the dispossession or eviction of persons occupying the road reserve without due process of law. ix. The Appellants strongly disputed the Respondent's characterization of them as trespassers who had unlawfully encroached upon and erected unauthorized structures on the road reserve. x. The Appellants had conducted their respective businesses at the location openly and continuously for approximately twenty (20) years, with the knowledge of the relevant local authorities, and their presence at the location substantially predated the Respondent's asserted interest in the road reserve. xi. The question whether the Appellants were trespassers or lawful occupants was a substantive issue requiring determination on the merits and had not been conclusively determined by the lower Court. xii. The Appellants maintained that they had not erected unauthorized structures as alleged, but had established business premises at the location in which they had conducted their livelihoods for approximately two decades. xiii. The allegations concerning the ling of the Appellants' Replying Adavit in the lower Court had been mischaracterized by the Respondent. xiv. On 18th February, 2026, the lower Court directed the Appellants to le and serve a Replying Adavit within three (3) days. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5972/eng@2026-09-21 11

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xv. At the material time, he was indisposed and undergoing medical treatment for a gastrointestinal condition, as conrmed by the medical report from Likoni Sub-County Hospital dated 9th March, 2026, marked as “JOO - 4”. xvi. He had been placed o duty from 19th February, 2026 to 5th March, 2026, which period substantially overlapped with the period within which the Court had directed the ling of the Replying Adavit. xvii. The failure to le the Replying Adavit within the period directed by the Court was therefore not deliberate, intentional or calculated to delay the proceedings, but was genuinely occasioned by his medical incapacitation. xviii. He was the duly authorized representative of all the Appellants, as evidenced by the Authority marked as “JOO - 1”, and the conduct of the proceedings had been substantially centralized through him. xix. His incapacitation therefore materially aected the ability of the other Appellants to act independently in the conduct of the proceedings. xx. The failure to apply for an extension of time was itself substantially attributable to his incapacitation, as he was unwell and unable to attend to his aairs or take the necessary procedural steps within the prescribed period. xxi. The Respondent's reliance on the procedural default ought not to be used to defeat the Appellants' substantive right to be heard, particularly where the delay was occasioned by circumstances beyond their control. xxii. The Respondent had questioned the date of the medical report on the ground that it same was dated 9th March ,2026, whereas the matter was last before the Court on 6th March, 2026. xxiii. The medical report was dated 9th March, 2026 because that was the date on which the report was formally issued and signed, whereas the medical treatment and the period for which he was placed o duty commenced on 19th February, 2026, as clearly reected in the medical report. xxiv. The date upon which the medical report was formally issued did not invalidate or otherwise aect the medical treatment, clinical ndings or the period during which he had been advised to remain o duty. xxv. The fact that the medical report was issued by a specialist described as a Lung and Skin Specialist did not, in itself, invalidate the diagnosis or treatment reected therein, particularly as the medical report recorded the clinical ndings, treatment administered and recommendation that he remain o duty. xxvi. He disputed the contention that the Learned Magistrate had properly exercised her discretion in expunging the Replying Adavit. xxvii. The Learned Magistrate had, in his view, proceeded to expunge the Replying Adavit without giving the Appellants a proper opportunity to explain the circumstances surrounding the delay and without adequately considering the serious consequences that the expunction would have upon their right to be heard. xxviii. The Court's discretion ought to be exercised judiciously and fairly, taking into account the circumstances surrounding the default and the prejudice that would be occasioned to the parties. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5972/eng@2026-09-21 12

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xxix. The Court had been informed of his sickness and the circumstances aecting his ability to comply with the directions, but nevertheless proceeded with the matter and expunged the Replying Adavit. xxx. The Appellants had operated their respective businesses on the road reserve for approximately twenty (20) years, and enforcement of the impugned orders would immediately deprive them of their business premises and means of livelihood. xxxi. Such deprivation would occasion substantial and irreparable loss which could not adequately be compensated through an award of damages. xxxii. The Respondent's alleged nancial prejudice arising from delayed access to the road reserve was speculative and, in any event, ought to be weighed against the immediate and substantial prejudice that would be suered by the Appellants if they were evicted from their business premises before the Appeal was heard and determined. xxxiii. The balance of convenience favoured the grant of a stay, as the Respondent's commercial interests could be preserved without immediately removing the Appellants from the premises, whereas the Appellants' businesses and livelihoods could not readily be restored once they had been disrupted or lost. xxxiv. If the orders issued on 6th March, 2026 were enforced, including with the involvement of the police as directed by the lower Court, and the Appeal subsequently succeeded, it would be practically dicult to restore the Appellants to the position they occupied before the enforcement of the orders. xxxv. The Appellants stood to lose business goodwill built over approximately two decades and would suer the consequences of eviction before their Appeal could be heard and determined, thereby rendering the Appeal nugatory. xxxvi. The Appellants reserved their substantive legal arguments regarding their occupation of the road reserve for the hearing of the Appeal but maintained that their approximately twentyyear open, continuous and undisturbed occupation raised serious and arguable questions of law concerning due process, legitimate expectation and the propriety of their eviction without a full hearing. xxxvii. The Appellants maintained that the said issues constituted arguable grounds of Appeal and justied the grant of a stay pending the determination of the Appeal. xxxviii. Two Supplementary Adavits had been led by Joseph Bartmaues Mutisya and Dinah Nthenya Paul, both of whom claimed to be neighbours and/or fellow business operators in the vicinity of the suit property. xxxix. The said deponents alleged that during the period between approximately 19th February, 2026 and 5th March, 2026, when he had stated that he was unwell, they had personally observed him conducting his normal day-to-day business activities at his shop, including opening and operating the shop, serving customers and moving about without visible signs of illness. xl. He categorically denied the averments made by the said deponents concerning his alleged activities during the material period. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5972/eng@2026-09-21 13

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xli. He had been diagnosed with upper gastrointestinal bleeding and epigastric pain and had been placed on an o-duty recommendation by Likoni Sub-County Hospital from 19th February, 2026 to 5th March, 2026. xlii. The said medical condition and recommendation were matters of medical record supported by a formal report issued by a public health facility. xliii. The bare observations of persons who were not medical professionals could not, in his view, override or conclusively contradict the medical diagnosis and treatment contained in the ocial medical report. xliv. Joseph Bartmaues Mutisya and Dinah Nthenya Paul were not medical practitioners and had not conducted any medical examination of him during the period in question. xlv. Their observations regarding his alleged physical condition could therefore not properly establish his medical tness or negate the medical diagnosis contained in the report from Likoni Sub-County Hospital. xlvi. He further stated that the said deponents had not been his business neighbours and that he did not know where their businesses were located, notwithstanding that he was a leader among a majority of the business operators within the area constituting the subject property. xlvii. Neither of the said deponents had produced photographs, video recordings or other objective evidence demonstrating that they had observed him undertaking the specic business activities alleged on the specic dates in question. xlviii. Joseph Bartmaues Mutisya and Dinah Nthenya Paul had, by their own depositions, interests connected with the businesses and/or occupation of the road reserve, and their evidence ought therefore to be evaluated with appropriate caution. xlix. Joseph Bartmaues Mutisya's Supplementary Adavit was sworn on 24th April, 2026, while Dinah Nthenya Paul's Supplementary Adavit was sworn on 18th March, 2026, and both adavits had been drawn by Murigi Kamande Associates, Advocates for the Respondent. l. Their evidence was therefore evidence relied upon by the Respondent in opposition to the Appellants' Application and ought to be evaluated in that context. li. The medical report marked as “JOO - 4”, issued by Likoni Sub-County Hospital, remained the most direct and contemporaneous documentary evidence regarding his medical condition during the material period. lii. The said report was an ocial document issued under the authority of the Medical Superintendent of Likoni Sub-County Hospital and bore the ocial hospital stamp dated 9th March, 2026. liii. The contents of the medical report had not been controverted by any medical evidence from a qualied medical practitioner and had instead been challenged through the alleged observations of persons who were not medical professionals. liv. The Appellants' Appeal raised serious and arguable issues of law, including whether the Appellants had been denied their right to be heard, whether the lower Court properly exercised its discretion in expunging their Replying Adavit and whether the injunctive orders had been properly issued at an interlocutory stage. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5972/eng@2026-09-21 14

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lv. The Appeal further raised the question whether it was proper to treat the Appellants as trespassers before the substantive dispute concerning their occupation and use of the road reserve had been fully heard and determined. lvi. Unless a stay of execution and/or enforcement was granted, the Appellants faced immediate and potentially irreversible deprivation of their business premises and livelihoods. lvii. Enforcement of the orders before the Appeal was heard and determined would therefore substantially alter the circumstances on the ground and risk rendering the Appeal nugatory. lviii. It was consequently in the interests of justice that this Honourable Court grant the orders sought in the Notice of Motion dated 11th March, 2026, including stay of execution and/or enforcement of the orders issued on 6th March, 2026 in “Kwale MCELC No. E009 of 2026”, pending the hearing and determination of the Appeal. lix. He consequently maintained that the Application was merited and that the interests of justice, the Appellants' right to be heard and the need to preserve the substratum of the Appeal warranted the grant of the orders sought. lx. What was deponed to hereinabove was true to the best of his knowledge, information and belief, save for matters based on information, the sources whereof had been disclosed. VII. The Notice of Motion application dated 11th June 2026 10. 11. The Appellants sought for the following orders:a. Spent. b. Spent. c. That Pending the hearing and determination of ELC Appeal No. E012 of 2026, this Honourable Court be pleased to issue an order staying further proceedings in Kwale MCELC No. E009 of 2026 - Habibа Investments Limited – Versus - Felister Mukai Ngala & 7 Others. d. That this Honourable Court be pleased to issue any other or further Order that it deems t to meet the ends of justice. e. The costs of this application be provided for. The application was premised on the grounds, testimonial facts and averment made out under the 14 Paragraphed Supporting adavit of Mwenda Miriti, the Advocate for the Appellants herein, where he averred as follows that:i. He was an Advocate of the High Court of Kenya practicing in the name and style of Messrs. Mwenda Miriti & Co. Advocates, which had conduct of the matter on behalf of the Appellants/Applicants and was therefore competent to swear the Adavit. ii. The Appellants had led “ELC Appeal No. E012 of 2026”, challenging the entirety of the decision and orders issued on 6th March, 2026 by Hon. Joy Mutimba in the Civil Case of “Kwale MCELC No. E009 of 2026’. Annexed and marked as “MM - 1” was a copy of the Memorandum of Appeal dated 6th March, 2026. iii. The impugned Ruling had, inter alia, expunged the Appellants' Replying Adavit from the record on the ground that it had been led out of time, thereby denying the Appellants an https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5972/eng@2026-09-21 15

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opportunity to place their response before the trial Court and to be heard on the substantive issues raised in the proceedings. iv. Following the delivery of the impugned Ruling, the Appellants led, under a Certicate of Urgency, a Notice of Motion application dated 11th March, 2026, seeking stay of execution and/or enforcement of the orders issued on 6th March, 2026 pending the hearing and determination of the Application and the Appeal. Annexed and marked as “MM - 2” was a copy of the Notice of Motion application dated 11th March, 2026. v. This Honourable Court considered the Application and certied the same as urgent and thereafter granted a temporary stay of execution of the orders issued on 6th March, 2026 pending further orders of the Court. Annexed and marked as “MM - 3” was a copy of the Order issued by this Honourable Court on 12th March, 2026. vi. The Application for stay remained pending before this Honourable Court and had been scheduled for Ruling on 21st September, 2026, while the parties were yet to take directions on the substantive Appeal. Annexed and marked was “MM - 4” was a copy/photograph of the CTS indicating the date scheduled for delivery of the Ruling. vii. Despite the pendency of the Appeal and the Application for stay, there were no orders staying or otherwise restraining the continuation of proceedings before the lower Court, and the trial Court had consequently xed the matter for Pre - Trial directions on 12th June, 2026. Annexed and marked as “MM - 5” was a copy/photograph of the CTS indicating the pre-trial date before the trial Court. viii. One of the substantive prayers raised in the Appeal was for the transfer of Civil Case “Kwale MCELC No. E009 of 2026” from the Court presently seized of the matter to another competent Magistrate's Court for hearing and determination. ix. The continuation of proceedings before the Lower Court, while the Appeal challenging the decision and orders of the said Court remained pending, raised a real and substantial risk that the Lower Court proceedings could proceed to conclusion before the Appeal was heard and determined. x. If the lower Court proceedings were allowed to proceed and ultimately conclude before the determination of the Appeal, the Appeal would be rendered nugatory, particularly in view of the substantive relief sought in the Appeal concerning the transfer of the suit from the current Court. xi. Further, the Appellants stood to suer substantial and irreparable prejudice if the proceedings before the Lower Court continued, including the risk of being driven out of the suit property before their Appeal was heard and determined. xii. The circumstances obtaining in the matter therefore necessitated the ling of the Application seeking appropriate orders to preserve the substratum of the Appeal and prevent the Lower Court proceedings from overtaking and/or rendering the Appeal nugatory. xiii. Unless this Honourable Court intervened urgently and granted the orders sought, the Appellants stood to suer substantial and irreparable damage and prejudice which could not adequately be remedied after the conclusion of the lower Court proceedings. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5972/eng@2026-09-21 16

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xiv. The Application had been brought without unreasonable delay and in the interests of justice, having regard to the circumstances surrounding the impugned decision, the pending Appeal and the continued proceedings before the lower Court. xv. It was therefore in the interests of justice that this Honourable Court intervene and issue the necessary orders to preserve the Appellants' right of appeal and ensure that the Appeal was heard and determined before the lower Court proceedings rendered the substantive reliefs sought therein nugatory. xvi. Consequently, he swore the Adavit in support of the Application and maintained that the same was merited and deserving of the orders sought. xvii. What was deponed to hereinabove was true to the best of his knowledge, information and belief. VII. Replying Adavit by the Plainti to the Notice of Motion Application dated 21st February, 2026 12. The Respondent, responded to the Application through a Replying Adavit sworn on 15th July, 2026 by Dr. Kawaljeet Singh Rekhi, wherein the Aant averred as follows that: i. He was a Director of Habiba Investments Limited, the Plainti/Respondent herein, and was well conversant with the matters arising in the suit and had been duly authorized to swear the Adavit on behalf of the Company. ii. He had read and understood the contents of the Appellants' Application dated 11th June, 2026 together with the Supporting Adavit of Mwenda Miriti sworn on even date. The nature and import of the Application had been fully explained to him by his Advocates on record and having understood the same, he responded to the averments contained therein. iii. The Application sought orders for stay of proceedings in the case of “Habiba Investments Limited – Versus - Felister Mukai Ngala & 7 Others (MCELC/E009/2026)” pending the hearing and determination of the Application dated 11th June, 2026 and the Appeal. iv. He stated that the Plainti/Respondent was the duly registered and benecial owner of land parcel Kwale/Diani Beach Block/1548, having acquired the same in the year 2006. v. Vide the Application under Certicate of Urgency dated 21st January, 2026 in “Kwale MCELC/E009/2026 – Habiba Investments Limited – Versus - Felister Mukai Ngala & 7 Others”, the Plainti/Respondent had sought temporary injunctive orders restraining the Defendants/Respondents, their agents and/or employees from obstructing, trespassing upon, accessing, encroaching upon, blocking access to, setting up or erecting structures on, or conducting business upon the road reserve providing access to the Plainti/Respondent's property known as Kwale/Diani Beach Block/1548. vi. Directions in respect of the said Application were issued on 23rd January, 2026, and the Appellants were duly served with the relevant pleadings and directions. vii. On 18th February, 2026, both parties' Advocates appeared before the Learned Magistrate, who issued clear and unequivocal directions requiring the Appellants to le and serve a Replying Adavit within three (3) days, while granting the Plainti/Respondent corresponding leave of three (3) days to le any further documents. The matter was thereafter xed for “inter – partes” hearing on 27th February, 2026. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5972/eng@2026-09-21 17

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viii. On 27th February, 2026, the Court never sat as the Learned Magistrate was attending a supervisory visit at Shimo la Tewa Borstal Institution. ix. As at 27th February, 2026, the Appellants had not complied with the directions issued on 18th February, 2026, and the matter was subsequently xed for inter partes hearing on 6th March, 2026. x. When the matter came up on 6th March, 2026, his Advocates on record informed the Honourable Court that the Appellants had served them with a Replying Adavit on 5th March, 2026, which had been led on the same date at approximately 1422 hours and without leave of Court. xi. Consequently, his Advocate sought that the said Replying Adavit be expunged from the record on account of having been led out of time and without leave of Court. xii. The Appellants' failure to comply with the clear directions of the Court demonstrated, in his view, a disregard of the Court's orders, particularly as the Appellants had not led the Replying Adavit within the prescribed period despite the Court having not sat on 27th February, 2026. xiii. The Appellants' Advocate informed the Court that the delay in ling the Replying Adavit had been occasioned by the illness of the 7th Appellant/Applicant. xiv. No medical evidence had, however, been placed before the lower Court on 6th March, 2026 to substantiate the alleged illness, and the Learned Magistrate correctly noted that there was no medical report on the Court record at the material time. xv. The issue of the illness of one of the Appellants could not, in his view, suciently explain the failure by all the Appellants to comply with the Court's directions, particularly in circumstances where no application for extension of time had been made. xvi. Consequently, the Application dated 21st January, 2026 was allowed by the lower Court, following which the Appellants led the present Application dated 11th March, 2026 challenging the orders and seeking stay of proceedings and/or other consequential reliefs. xvii. The matter was subsequently listed for Pre - Trial directions on 27th March, 2026, when the Appellants' Advocate led and served a Statement of Defence on 26th March, 2026 but failed and/or neglected to le the requisite witness statements and list of documents. xviii. The Appellants' Advocate consequently sought additional time within which to le further documents, and the matter was thereafter xed for 12th June, 2026. xix. When the matter came up on 12th June, 2026, the Appellants' Advocate similarly informed the Court that the Appellants had not complied with the requirements of Order 11 of the Civil Procedure Rules, 2010. xx. The Appellants' conduct before the trial Court demonstrated a continuing failure to comply with procedural directions and orders, which conduct had contributed to the delay in the expeditious disposal of the suit. xxi. He was advised by his Advocates on record, which advice he verily believed to be true, that stay of proceedings was a discretionary and exceptional remedy and ought only to be granted where sucient and compelling circumstances had been demonstrated. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5972/eng@2026-09-21 18

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xxii. Stay of proceedings would only be warranted where the proceedings sought to be stayed were shown to be frivolous, vexatious, oppressive, harassing, manifestly groundless or otherwise constituted an abuse of the process of the Court, or where exceptional circumstances had been demonstrated to justify interfering with the ordinary progression of a suit before the trial Court. xxiii. The Appellants had failed to demonstrate any exceptional circumstances warranting the stay of proceedings in Kwale MCELC/E009/2026. xxiv. The dilatory conduct of the Appellants, including their failure to comply with the directions issued on 18th February, 2026 and their subsequent failure to comply with the requirements of Order 11, did not constitute an exceptional circumstance justifying the grant of stay of proceedings. xxv. The proceedings before the trial Court had not been properly progressed by the Appellants, and the Court ought not to be invited to turn a blind eye to the continued delays and procedural defaults where no satisfactory explanation had been oered. xxvi. Justice ought not to be delayed, a principle underscored by provision Article 159 (2) of the Constitution of Kenya, 2010 and Sections 1A and 1B of the Civil Procedure Act, 2010 which emphasize the just, expeditious, proportionate and ecient disposal of civil proceedings. xxvii. He was further advised by his Advocates, which advice he verily believed to be true, that the threshold for granting a stay of proceedings was high and stringent because an order staying proceedings constituted a serious judicial intervention that interfered with a litigant's right to prosecute and defend litigation and could also impede the right of access to justice and the expeditious determination of disputes. xxviii. Stay of proceedings had the eect of delaying and/or defeating the expeditious hearing and nal determination of cases and ought therefore to be granted sparingly and only in clear and deserving circumstances. xxix. In determining whether to grant a stay, the Court ought to balance the competing rights and interests of the parties and consider the need for expeditious disposal of cases, the prima facie merits of the Appeal, the ecient utilization of judicial time and whether the Application had been brought expeditiously. xxx. The Plainti/Respondent had made substantial investments in the development of Kwale/ Diani Beach Block/1548 and was subject to strict conditions and timelines imposed by KeRRA in relation to the approved access and development works. xxxi. Any unnecessary delay in the proceedings would occasion substantial prejudice to the Plainti/ Respondent, including disruption of its development plans, continued nancial exposure and the risk of non-compliance with the timelines and conditions imposed by KeRRA. xxxii. The Appellants had not established any substantial cause or prima facie basis warranting the grant of stay of proceedings pending the hearing and determination of the intended Appeal. xxxiii. The intended Appeal principally sought, inter alia, reinstatement of the Appellants' Replying Adavit which had been expunged by the lower Court, yet the substantive suit had already proceeded to the pre-trial stage and had been scheduled for further directions. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5972/eng@2026-09-21 19

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xxxiv. The Appellants had failed to demonstrate why the ordinary progression of the trial proceedings should be halted merely because they had led an Appeal against an interlocutory decision. xxxv. He was advised by his Advocates, which advice he verily believed to be true, that the ling of an Appeal did not, by itself, confer an automatic right to stay proceedings before the trial Court, and the party seeking such orders was required to demonstrate sucient cause and exceptional circumstances. xxxvi. The Appellants had not demonstrated sucient cause for the grant of the orders sought, particularly in view of their failure to comply with the directions and procedural requirements issued by the trial Court. xxxvii. The reasons advanced by the Appellants for the delay and procedural defaults did not, in his view, demonstrate good faith or sucient diligence in prosecuting the matter before the trial Court. xxxviii. The continued stay of proceedings would unnecessarily delay the determination of Kwale MCELC/E009/2026, contrary to the overriding objective of the Civil Procedure Act and the constitutional obligation to ensure that justice is administered without undue delay. xxxix. The interests of justice therefore favoured allowing the proceedings before the trial Court to continue, particularly considering the substantial investment made by the Plainti/ Respondent and the strict timelines imposed upon it by KeRRA. xl. The Court ought to take into account the conduct of the Appellants before the trial Court and should not permit procedural defaults and delay tactics to become a basis for indenitely staying proceedings. xli. The Appellants had failed to satisfy the stringent conditions necessary for the grant of an order staying proceedings pending appeal. xlii. It was consequently in the interests of justice that this Honourable Court decline to grant the stay of proceedings sought by the Appellants and dismiss the Notice of Motion application dated 11th June, 2026 with costs to the Plainti/Respondent. xliii. Consequently, he swore the Replying Adavit in opposition to the Application and maintained that the Application was devoid of merit and ought to be dismissed with costs. xliv. What was deponed to hereinabove was true and correct to the best of his knowledge, information and belief. V. Submissions 13. While all the parties were present in Court, directions were given to have the two (2) applications be canvassed by way of written submissions. Subsequently, all the parties obliged. The Honourable Court reserved a date for the delivery of the Ruling accordingly. A. The Written Submissions by the Appellant/Applicant 14. The 1st to 8th Appellants herein, through the Law rm of Messrs. Mwenda Miriti & Co. Advocates, led their written submissions in support of the Notice of Motion application dated 11th March, 2026, seeking, inter alia, orders for stay of execution and/or enforcement of the orders issued on 6th March, 2026 by Hon. Joy Mutimba (SRM) in the case of “Kwale Law Courts MCELC No. E009 of 2026”, pending the hearing and determination of the Appeal before this Honourable Court. Learned Counsel https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5972/eng@2026-09-21 20

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submitted that the Application arose from circumstances in which the Appellants had allegedly been denied an opportunity to be heard at the trial Court, resulting in injunctive orders which eectively halted their business operations on land where they had conducted business for approximately twenty (20) years. 15. The Learned Counsel averred that the Respondent, Habiba Investments Limited, had led a Notice of Motion application dated 21st January, 2026 before the Magistrates' Court in “MCELC No. E009 of 2026”, seeking, inter alia, temporary injunctive orders restraining the Appellants from accessing and conducting business on the road reserve adjacent to Kwale/Diani Beach Block/1548. 16. According to the Learned Counsel, the matter came up for directions on 18th February, 2026, when the Appellants' Advocate, who had just received instructions to come on record, sought time to regularize his appearance and requested indulgence from the Respondent's Counsel to be supplied with documents forming part of the Application, some of which were allegedly missing or unclear. The Learned Magistrate thereafter directed the Appellants to le and serve a Replying Adavit within three (3) days and xed the matter for “inter partes” hearing on 27th February, 2026. 17. The Learned Counsel further asserted that on 27th February, 2026, the Court did not sit as the Honourable Magistrate was engaged in ocial supervisory duties, and the matters before the Court were consequently stood over to 6th March, 2026. 18. It was the Appellants' submission that when the matter came up on 6th March, 2026, their Advocate informed the Court that the Replying Adavit had been led and served on 5th March, 2026. The Counsel explained that the delay was occasioned by the illness of Jeremiah Omwange Ounde – the 7th Appellant, who had been duly authorized by all the Appellants to swear the Replying Adavit on their behalf and had been suering from a serious gastrointestinal condition between 19th February, 2026 and 5th March, 2026, as subsequently evidenced by a medical report from Likoni Sub-County Hospital dated 9th March, 2026. 19. The Learned Counsel opined that notwithstanding the explanation given, the Learned Magistrate proceeded to expunge the Replying Adavit on the ground that it had been led out of time and without leave of Court, thereafter treating the Respondent's Application as unopposed and granting injunctive orders against the Appellants. 20. The Learned Counsel stated that the impugned orders restrained the Appellants from accessing, utilizing or carrying on business on the suit property, granted the Respondent exclusive and uninterrupted use of the alleged road reserve adjacent to Kwale/Diani Beach Block/1548, and authorized the assistance of the OCS Diani Police Station in enforcing the orders. 21. Being aggrieved by the said decision, the Appellants lodged an Appeal challenging the entirety of the decision and orders of the trial Court and simultaneously led the present Application seeking stay of execution and/or enforcement pending the hearing and determination of the Appeal. 22. In response to the Respondent's Replying Adavit, the Learned Counsel addressed the issue of the medical evidence relied upon by the Appellants. Counsel submitted that the Respondent's challenge to the medical report was premised principally on the fact that the report was dated 9th March, 2026, three days after the impugned proceedings, and that the 7th Appellant had allegedly been attended to by a Lung and Skin Specialist despite suering from a gastrointestinal condition. 23. The Learned Counsel submitted that the objections raised against the medical report were without merit, contending that the report expressly recorded that the 7th Appellant had attended Likoni SubCounty Hospital on 19th February, 2026 and had been placed on o-duty leave from 19th February, https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5972/eng@2026-09-21 21

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2026 to 5th March, 2026. The Counsel argued that the date of 9th March, 2026 merely reected the date on which the formal report was issued and signed and did not negate the medical treatment or the period of incapacitation recorded therein. 24. The Learned Counsel further contended that the Respondent had not produced any medical evidence to demonstrate that the 7th Appellant had not attended Likoni Sub-County Hospital on 19th February, 2026 or that the medical ndings contained in the report were false or unreliable. 25. On the issue of the medical practitioner who issued the report. The Learned Counsel submitted that treatment at a Level 4 public hospital involved a number of health-care professionals and that the fact that the report was issued by a Lung and Skin Specialist did not, without more, invalidate the diagnosis relating to the gastrointestinal condition. Counsel maintained that the clinical ndings, including epigastric pain and gastrointestinal bleeding, together with the medication prescribed, including Esomeprazole, and the management plan were internally consistent and had not been controverted by any medical evidence. 26. The Learned Counsel also addressed the Supplementary Adavits led by Dinah Nthenya Paul and Joseph Bartmaues Mutisya, who allegedly claimed to have observed the 7th Appellant conducting his normal business activities during the period when he had stated that he was unwell. 27. The Counsel submitted that the evidence of the said deponents ought to be accorded minimal weight because neither of them was a medical professional and neither had examined the 7th Appellant during the material period. It was therefore argued that their observations could not override or displace the formal medical diagnosis issued by a public health facility. 28. The Learned Counsel further submitted that the alleged observations had not been corroborated by objective evidence such as CCTV footage, photographs, video recordings or other material demonstrating that the 7th Appellant had been conducting business on the specic dates and times alleged. 29. The Counsel further drew the Court's attention to the fact that both deponents were allegedly occupants or former occupants of the road reserve in dispute. In particular, it was submitted that Joseph Bartmaues Mutisya had admitted that he vacated the road reserve following the KeRRA Notice of August 2025, and Counsel therefore contended that the two deponents had a personal interest in the outcome of the proceedings. 30. It was further submitted that the adavits of the said deponents had been drawn by Murigi Kamande Associates, Advocates for the Respondent, and the Counsel urged the Court to treat the deponents as witnesses relied upon by the Respondent and to evaluate their evidence with appropriate caution. 31. The Learned Counsel further submitted that the 7th Appellant had categorically denied ever knowing or seeing the two ( 2 ) deponents in the vicinity of his business and had disputed their assertion that they were his business neighbours. Counsel therefore maintained that their alleged observations were unsupported by independent or objective evidence. 32. On the issue of the KeRRA consent. It was the contention by the Learned Counsel that the Respondent had placed excessive reliance upon the consent obtained from KeRRA in May, 2025 in an attempt to establish an entitlement to exclusive use of the road reserve. 33. According to Counsel, the consent by KeRRA merely authorized the Respondent to construct an access road and culvert on the road reserve for purposes of entry and exit to parcel number Kwale/ Diani Beach Block/1548. It neither conferred ownership of the road reserve upon the Respondent, https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5972/eng@2026-09-21 22

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nor did it automatically authorize the Respondent to exclude all other persons from the road reserve without due process and an appropriate order of the Court. 34. The Learned Counsel submitted that KeRRA was a roads authority and not a judicial body. Therefore, its administrative consent could not, in itself, amount to a judicial order authorizing the eviction or dispossession of persons occupying the road reserve. 35. The Counsel further submitted that the validity and legal eect of the KeRRA consent constituted substantive issues which ought to be determined upon a full hearing of the Appeal and that, at the interlocutory stage, the Court was principally concerned with whether the Appeal raised serious and arguable questions deserving consideration. 36. On the balance of convenience. The Learned Counsel argued that the Respondent's alleged nancial loss arising from delay in accessing the road reserve was speculative and future-looking. In any event, capable of compensation by an award of damages. 37. Conversely, Counsel averred that the Appellants' loss would be immediate, certain and potentially irreversible because the impugned orders threatened to deprive them of the businesses through which they earned their livelihoods. The Learned Counsel stated that the Appellants' businesses had operated on the road reserve for approximately twenty (20) years and supported more than thirty (30) families, dependants and employees. 38. The Learned Counsel therefore asserted that the balance of convenience overwhelmingly favoured the grant of a stay, since the Respondent's commercial development interests could be protected without immediately and forcibly removing the Appellants from the premises, whereas the Appellants' livelihoods could not readily be restored once their businesses had been disrupted or closed. 39. The Learned Counsel submitted that the principal issue for determination was whether the Appellants had satised the legal threshold for the grant of an order for stay of execution and/or enforcement of the impugned orders pending the hearing and determination of the Appeal. 40. On the applicable legal principles. The Learned Counsel relied on the provision of Order 42 Rule 6 of the Civil Procedure Rules, 2010, submitting that an Applicant seeking stay of execution pending appeal must satisfy the conditions prescribed by the Rules. These included demonstrating that substantial loss may result unless the order for stay was made, that the application had been made without unreasonable delay and that such security as the Court may order for the due performance of the decree or order has been provided. 41. On these legal aspects, the Counsel relied on the decision in the case of:- “Vishram Ravji Halai – Versus - Thornton & Turpin (1963) Limited [1990] KLR 365”, where the Court of Appeal considered the principles applicable to stay pending appeal and submitted that the Court ought to consider whether the Appeal was arguable and whether, in the absence of a stay, the successful Appeal would be rendered nugatory. 42. The Learned Counsel further submitted that the Court ought to take into account the balance of convenience and the prejudice likely to be suered by each party depending on whether the stay was granted or declined. 43. On the rst limb, the Learned Counsel submitted that the Appeal raised several serious and arguable questions of law and fact and was therefore not frivolous. 44. The rst issue identied by Counsel was the alleged violation of the Appellants' right to be heard under the provision of Article 50 of the Constitution. The Counsel submitted that the trial Court had https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5972/eng@2026-09-21 23

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fundamentally erred by expunging the Appellants' Replying Adavit and thereafter proceeding to determine the Respondent's Application as though it were unopposed. 45. The Learned Counsel submitted that the provision of Article 50 (1) of the Constitution guaranteed every person the right to have any dispute resolved by application of law in a fair and public hearing before a Court or, where appropriate, an independent and impartial tribunal or body. 46. The Counsel further relied upon the provision of Article 159(2)(d) of the Constitution. He argued that courts were required to administer justice without undue regard to procedural technicalities. Therefore, it was stated that the late ling of the Replying Adavit, in circumstances explained by the medical incapacitation of the authorized deponent, ought not to have resulted in the complete shutting out of the Appellants from the proceedings. 47. To buttress the foregoing submission, the Learned Counsel relied on the case of:- “Gitau – Versus Kenya Methodist University (KeMU) & Another [2021] KEHC 322”, submitting that striking out pleadings or adavits for being led out of time was a drastic and draconian remedy which ought to be employed as a measure of last resort and that, where appropriate, the Court ought to consider less drastic measures, including the imposition of costs or appropriate conditions. 48. Additionally, the Counsel further relied on the case of:- “Cheserem – Versus - Miriga (Civil Appeal No. 581 of 2017) [2023] KESC 23821 (KLR)” and submitted that procedural defaults ought not automatically to deprive litigants of an opportunity to be heard where the dispute could still fairly be determined on its merits. The Learned Counsel also referred to the decision in the case of:- “Republic – Versus - Public Procurement Administrative Review Board & 2 Others Ex - Parte Security Services Limited [2023] KEHC”, submitting that courts ought to lean towards substantive justice and avoid procedural technicalities that prevent the determination of disputes on their merits. 49. The second issue identied by Counsel concerned the overriding objective under Sections 1A and 1B of the Civil Procedure Act, Cap. 21. It was submitted that the trial Court had failed to exercise its discretion in a manner that facilitated the just, expeditious and proportionate determination of the dispute when it mechanically expunged the Replying Adavit without suciently considering the reason advanced for the delay. 50. The Counsel submitted that the trial Court ought either to have admitted the Replying Adavit upon appropriate terms or, at the very least, aorded the Appellants an opportunity to explain the circumstances surrounding the delay before imposing the drastic consequence of expunction. The Learned Counsel cited the case of “Nicholas Kiptoo Arap Korir Salat – Versus - IEBC & 7 Others (2014) and submitted that procedural rules were intended to facilitate justice and should not be elevated to a level where they defeat substantive adjudication. The Counsel further relied on the case of:- “County Executive of Kisumu – Versus - County Government of Kisumu & 8 Others (2017)” and submitted that courts ought, where possible, to sustain proceedings and avoid technical approaches that impede access to justice. 51. The Learned Counsel further submitted that the delay in ling the Replying Adavit was excusable and occasioned by medical incapacitation. It was submitted that the 7th Appellant had been duly authorized by all eight (8) Appellants to swear the Replying Adavit and execute the relevant documents on their behalf. The Counsel held that the 7th Appellant had been diagnosed with upper gastrointestinal bleeding and epigastric pain at Likoni Sub-County Hospital on 19th February, 2026. He had been placed on o-duty leave from 19th February, 2026 to 5th March, 2026. According to Counsel, this period substantially overlapped with the three-day period directed by the trial Court. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5972/eng@2026-09-21 24

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52. It was therefore submitted that the medical incapacitation of the duly authorized representative constituted a reasonable and legally cognizable explanation for the delay and that the failure to seek an extension of time was itself attributable to the same incapacitation. 53. The Learned Counsel further submitted that the trial Court had improperly granted the temporary injunction without properly applying the principles established in the famous case of:- “Giella – Versus - Cassman Brown & Co. Ltd [1973] EA 358”. The Counsel submitted that the Respondent had failed to establish a prima facie case with a probability of success because its claim for exclusive use of the road reserve was founded principally upon the consent by KeRRA, notwithstanding that the road reserve was public land under the jurisdiction of KeRRA and was not owned by the Respondent. 54. It was further submitted that the consent by KeRRA relied upon by the Respondent had allegedly lapsed by the time the suit was instituted. That the trial Court had failed to properly consider the eect of the consent and whether the balance of convenience favoured the grant of the injunction. Further, the Consent submitted that the impugned orders eectively determined substantive rights at an interlocutory stage, which was impermissible in circumstances where the competing rights of the parties over the road reserve had not been conclusively determined. 55. The Learned Counsel further submitted that the Respondent had not demonstrated ownership of or a proprietary interest in the road reserve. The Counsel maintained that ownership of Kwale/Diani Beach Block/1548 did not extend to the adjacent road reserve, which remained public land. 56. It was further submitted that the consent by KeRRA was an administrative authorization to construct an access point and was neither a title deed nor a judicial order conferring proprietary rights or authorizing the Respondent to dispossess persons who had allegedly occupied and conducted business on the road reserve for approximately twenty (20) years. The Counsel held that the Appellants' longstanding occupation, coupled with the alleged knowledge of the relevant local authorities, raised serious and arguable questions of law, including questions relating to legitimate expectation, adverse possession and due process before eviction. Consequently, the Counsel averred that the grounds raised in the Appeal were not frivolous but went to the heart of the Appellants' constitutional rights, the exercise of judicial discretion and the proper application of the principles governing interlocutory injunctive relief. 57. On the second limb of the applicable test. The Learned Counsel submitted that the Appellants had demonstrated that the Appeal would be rendered nugatory unless a stay of execution and/or enforcement was granted. He stated that the impugned orders restrained all eight (8) Appellants from accessing, utilizing and conducting business on the suit property and were further backed by the involvement of the OCS Diani Police Station, thereby making the threat of enforcement immediate and real. 58. The Learned Counsel submitted that the Appellants had conducted their businesses on the suit property for approximately twenty (20) years and that the businesses constituted their principal or sole means of livelihood. 59. According to Counsel, enforcement of the impugned orders would result in the permanent closure of the Appellants' businesses, destruction or loss of their business structures, permanent loss of business goodwill accumulated over approximately two decades and irreparable harm incapable of adequate compensation through an award of damages. The Counsel submitted that once the Appellants were evicted and removed from the suit property, it would be practically impossible to restore them to their former position even if the Appeal ultimately succeeded, as their businesses, goodwill, livelihoods and established community relationships would have been disrupted or permanently lost. To buttress https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5972/eng@2026-09-21 25

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on the matter, the Learned Counsel relied on the case of:- “National Industrial Credit Bank Limited – Versus - Aquinas Francis Wasike & Another [2006] eKLR”, submitting that the possibility of an Appeal being rendered nugatory in the absence of a stay constituted a weighty consideration in favour of granting the stay. 60. On the issue of substantial loss. The Learned Counsel submitted that the Appellants had demonstrated the likelihood of suering substantial and irreparable prejudice if the impugned orders were enforced before the Appeal was heard and determined. The Counsel submitted that the Appellants were smallscale business operators whose livelihoods depended upon their continued ability to operate their businesses on the suit property and that, unlike the Respondent, they did not have the nancial capacity to absorb the consequences of immediate eviction and loss of their businesses. 61. The Learned Counsel further submitted that the impugned orders were backed by police enforcement, thereby creating an immediate and continuing risk of forcible eviction. He maintained that the goodwill, business relationships and economic structures established by the Appellants over approximately twenty (20) years could not adequately be compensated in monetary terms. Conversely, the Learned Counsel submitted that the Respondent would suer no comparable prejudice from a temporary stay pending determination of the Appeal, as its alleged commercial development constituted a long-term investment and any delay occasioned by the stay would not irreparably destroy the project. The Counsel further submitted that the Respondent's access to its own parcel, Kwale/ Diani Beach Block/1548, was not in dispute and that the dispute concerned its asserted right to exclusive use of the adjacent public road reserve. 62. The Learned Counsel asserted that the balance of convenience favoured the Appellants. On this issue, the Counsel cited the case of:- “Mrao Limited – Versus - First American Bank of Kenya Limited & 2 Others [2003] KLR 125”, submitting that where the balance of convenience or hardship clearly lies on one side, the same constitutes a powerful consideration in favour of granting the appropriate interim relief. 63. On the issue of delay. The Learned Counsel argued that the impugned orders were issued on 6th March, 2026, while the Notice of Motion seeking stay of execution was led on 11th March, 2026, being only ve (5) days thereafter. He opined that the Certicate of Urgency was similarly led on 11th March, 2026 and that the Appellants had simultaneously lodged their Memorandum of Appeal before this Honourable Court. It was therefore submitted that the Application had been brought promptly and without unreasonable delay and that no prejudice could properly be attributed to the Appellants on account of the brief period between the impugned orders and the ling of the Application. 64. In conclusion, the Learned Counsel submitted that the Appellants had satised the legal threshold for the grant of stay of execution and/or enforcement pending appeal. The Counsel maintained that the Appeal was arguable, that substantial loss would be suered if the impugned orders were enforced, that the Appeal risked being rendered nugatory and that the Application had been led without unreasonable delay. 65. Therefore, the Learned Counsel urged this Honourable Court to allow the Notice of Motion application dated 11th March, 2026 with costs. He prayed that an order staying the enforcement of the orders issued on 6th March, 2026 in the case of:- “Kwale MCELC No. E009 of 2026” pending the hearing and determination of the Application be granted. B. The Written Submissions by the Respondent 66. The Respondent, Habiba Investments Limited, through the Law rm of Messrs. Murigi Kamande Associates, led written submissions in opposition to the Appellants' Notice of Motion dated 11th https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5972/eng@2026-09-21 26

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March, 2026, seeking stay of execution and/or enforcement of the orders issued on 6th March, 2026 in “Kwale MCELC No. E009 of 2026 – Habiba Investments Limited – Versus - Felister Mukai Ngala & 7 Others”, pending the hearing and determination of the Application and the Appeal. The Respondent relied on the Replying Adavit sworn by Dr. Kawaljeet Singh Rekhi in April, 2026, the Supplementary Adavits sworn by Dinah Nthenya Paul and Joseph Bartmaues Mutisya on 24th April, 2026, the written submissions and the List and Bundle of Authorities led alongside the submissions. 67. The Learned Counsel submitted that the Respondent's opposition to the Application principally concerned three issues, namely: whether the Appellants had satised the requirements for stay of execution under the provision of Order 42 Rule 6 of the Civil Procedure Rules, 2010; whether the Appellants had demonstrated substantial loss and sucient cause to warrant the exercise of the Court's discretion in their favour; and who ought to bear the costs of the Application. 68. On the background of the matter, Learned Counsel submitted that the Respondent had led an Application under Certicate of Urgency dated 21st January, 2026 in “Kwale MCELC/E009/2026”, seeking temporary injunctive orders restraining the Appellants, their agents and/or employees from obstructing, trespassing upon, accessing, encroaching upon, blocking access to, erecting structures on or conducting business on the road reserve providing access to the Respondent's property known as Kwale/Diani Beach Block/1548. The Counsel submitted that directions were issued on 23rd January, 2026, and upon the matter coming before the Learned Magistrate on 18th February, 2026, both parties were represented by Counsel. The Appellants were directed to le and serve their Replying Adavit within three (3) days, while the Respondent was granted corresponding leave to le any further documents. The matter was thereafter xed for inter partes hearing on 27th February, 2026. 69. The Learned Counsel further submitted that on 27th February 2026, the Court did not sit as the learned Magistrate was attending a supervisory visit at Shimo la Tewa Borstal Institution, but by that date the Appellants had not complied with the directions issued on 18th February, 2026. The matter was consequently xed for hearing on 6th March, 2026. 70. It was submitted that when the matter came up on 6th March ,2026, the Respondent's Counsel informed the Court that the Appellants had served the Replying Adavit on 5th March, 2026 at approximately 1422 hours, without leave of Court, and consequently sought its expunction from the record. According to the Learned Counsel, the Appellants' failure to le the Replying Adavit within the prescribed period demonstrated disregard of the Court's directions, particularly because the Court's failure to sit on 27th February, 2026 did not prevent the Appellants from complying with the earlier order. 71. The Counsel further submitted that the explanation advanced by the Appellants for the delay was that the 7th Appellant had been unwell. However, no medical evidence had been placed before the trial Court on 6th March, 2026 to substantiate the alleged illness. The Learned Counsel therefore maintained that the trial Court properly noted that there was no medical report on record and questioned how the illness of one Appellant could have prevented all the Appellants from complying with the Court's directions. The Learned Counsel submitted that the Respondent's Application dated 21st January, 2026 was consequently allowed, prompting the Appellants to le the present Notice of Motion application dated 11th March, 2026, seeking stay of execution and/or enforcement of the orders issued on 6th March, 2026 pending the hearing and determination of the Application and Appeal. 72. On the applicable legal principles, the Learned Counsel submitted that an application for stay of execution pending appeal is governed by the provision of Order 42 Rule 6 (1) and (2) of the Civil Procedure Rules, 2010. The Learned Counsel submitted that under the said provision, an Applicant https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5972/eng@2026-09-21 27

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seeking stay must demonstrate that substantial loss may result unless the order is made, that the Application has been made without unreasonable delay, and that security for the due performance of the decree or order has been given as may ultimately be binding upon the Applicant. 73. To buttress the foregoing submission, the Learned Counsel relied on the case of:- “G.N. Muema P/ A Mt View Maternity & Nursing Home – Versus - Miriam Maalim Bishar & Another [2018] KEHC 8780 (KLR)”, together with the decisions in the case of:- “Kiplagat Kotut v Rose Jebor Kipngok [2015] eKLR”, “Kenya Commercial Bank Limited – Versus - Sun City Properties Limited & 5 Others [2012] eKLR” and “Kenya Shell Limited – Versus – Kibiru”, and submitted that the three requirements under the provision of Order 42 Rule 6 were cumulative and had to be satised simultaneously. The Counsel further relied on the case of:- “Michael Ntouthi Mitheu – Versus - Abraham Kivondo Musau [2021] KEHC 4530 (KLR)”, where the Court considered the principles governing stay of execution and, relying on the case of “Vishram Ravji Halai (Supra)”, emphasized the requirements of sucient cause, substantial loss, security and absence of unreasonable delay. 74. The Learned Counsel further submitted that the Court was required to give eect to the overriding objective under the provision of Sections 1A and 1B of the Civil Procedure Act, Cap. 21 including the just determination of proceedings, ecient disposal of Court business, ecient utilization of judicial resources and timely disposal of proceedings. 75. On the rst aspect, the Learned Counsel submitted that the Appellants had failed to demonstrate sucient cause for the grant of stay, particularly in view of their dilatory conduct before the trial Court. The Counsel reiterated that the Appellants had been duly served and were represented before the trial Court on 18th February, 2026, when clear directions were issued requiring them to le and serve their Replying Adavit within three (3) days. 76. It was submitted that notwithstanding the said directions, the Appellants failed to le the Replying Adavit within the stipulated period and only served the Respondent with the same on 5th March, 2026, without leave of Court. The Learned Counsel further submitted that even after the matter was subsequently set down for pre-trial directions on 27th March, 2026, the Appellants' Advocate led and served a Statement of Defence on 26th March, 2026 but failed to le the requisite witness statements and list of documents and instead sought further time. The Counsel contended that when the matter subsequently came up on 12th June, 2026, the Appellants' Advocate again informed the trial Court that the Appellants had not complied with Order 11 of the Civil Procedure Rules. The Learned Counsel submitted that the Appellants' conduct demonstrated a continuing pattern of non-compliance with the directions of the trial Court and that such conduct could not constitute sucient cause for the grant of a discretionary order of stay. 77. The Learned Counsel further submitted that the trial Court properly exercised its discretion in expunging the Replying Adavit which had been led out of time and without leave of Court. It was argued that the decision was not a mere technicality but a proper exercise of the Court's procedural powers in the circumstances obtaining before it. 78. The Counsel further submitted that Court orders are not ornamental or cosmetic, and parties are under an obligation to comply with orders issued by a competent Court until such orders are varied, reviewed or set aside. To buttress the foregoing proposition, the Learned Counsel relied on the case of:- “Ngaruni Suing as the Legal Representative of the Estate of Kirichiu Ngaruni & Another – Versus - Tharimbu & 7 Others, Environment and Land Appeal E068 of 2025 [2026] KEELC 3281 (KLR)”, which relied upon the decision of the Court of Appeal in the case of:- “Tana Teachers Cooperative Savings Society Limited – Versus - Adrian Muchiri [2018] eKLR”. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5972/eng@2026-09-21 28

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79. The Counsel submitted that parties could not invoke the overriding objective of the Civil Procedure Act to excuse or cover up their failure to comply with Court directions, and that Section 1A (3) of the Civil Procedure Act, Cap. 21 required parties to assist the Court in ensuring compliance with directions and the expeditious disposal of proceedings. The Learned Counsel further relied on the case of:- “Abdirahman – Versus - Radhod & 3 Others [2023] KEELC 20658 (KLR)”, where the Court emphasized that a Court order was a directive that had to be obeyed and that failure to accord Court orders their binding character would undermine the orderly administration of justice. 80. On the question of substantial loss. The Learned Counsel submitted that the Appellants had failed to demonstrate the nature and extent of the substantial loss they would suer if the stay was declined. The Counsel submitted that the Appellants were already in contempt of the orders issued on 23rd January, 2026 and 6th March, 2026, as well as the formal Notice to Remove Unauthorised Structures dated 15th August, 2025 issued by the KeRRA Regional Director directing them to remove the structures erected on the road reserve within thirty (30) days. The Learned Counsel submitted that, in contrast, the Respondent had invested in excess of a sum of Kenya Shillings Thirty Four Million (Kshs.34,000,000/ =) in the development of Kwale/Diani Beach Block/1548, and that the investment was being adversely aected by the continued obstruction of access occasioned by the Appellants' conduct. 81. The Counsel further submitted that the Respondent had exhausted available avenues of amicable resolution and administrative enforcement and had even led an Application for contempt dated 27th January, 2026, but had exercised restraint in prosecuting the same in an eort to expedite the disposal of the substantive suit. To support its arguments, the Learned Counsel relied on the case of:- “Opot – Versus - Osoma & Another [2023] KEELC 19888 (KLR)”, which relied upon “Charles Wahome Gethi – Versus - Angela Wairimu Gethi [2008] eKLR”, and submitted that merely asserting that an Applicant would suer loss was insucient; the Applicant was required to demonstrate the specic substantial loss likely to be suered if execution proceeded. 82. The Counsel further submitted that the Appellants had not placed before the Court cogent evidence demonstrating that enforcement of the orders would cause the kind of substantial loss contemplated under the provision of Order 42 Rule 6. The Learned Counsel further relied on the case of:- “James Wangalwa & Another – Versus - Agnes Naliaka Cheseto [2012] KEHC 1094 (KLR)”, submitting that the mere fact that execution had been commenced or was likely to commence did not, by itself, constitute substantial loss. The Counsel averred that the Applicant was required to demonstrate additional circumstances showing that execution would create a state of aairs that would irreparably aect or negate the very essence of the successful Appeal. The Learned Counsel further relied on the case of:- “Epuret – Versus - Mamai & Another [2023] KEELC 255 (KLR)” and submitted that where substantial loss was relied upon, the Applicant was required to specify the nature of the loss, provide particulars thereof and satisfy the conscience of the Court that such loss would genuinely ensue and result in substantial injury. Therefore, the earned Counsel held that the Appellants had failed to satisfy the substantial loss requirement under Order 42 Rule 6. 83. On the requirement for security. The Learned Counsel submitted that the Appellants had not oered or furnished any security for the due performance of the order as may ultimately be binding upon them. The Counsel reiterated that the requirement for security was one of the mandatory and cumulative conditions under Order 42 Rule 6 (2) and could not be severed from the other requirements. To strengthen its view point, the Learned Counsel relied on the case of:- “G.N. Muema P/A Mt View Maternity & Nursing Home – Versus - Miriam Maalim Bishar & Another [2018] KEHC 8780 (KLR)” and submitted that the three conditions under Order 42 Rule 6 had to be satised simultaneously. It was argued that the Appellants' failure to oer security constituted an additional and independent ground upon which the Application ought to fail. The Learned Counsel submitted that there was, in https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5972/eng@2026-09-21 29

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the circumstances, no proper basis for granting the stay sought because the Respondent had already obtained a hearing date for the expeditious disposal of the substantive suit. 84. The Counsel submitted that the Appellants had failed to vacate the access road despite the orders and notices issued against them, thereby continuing to obstruct the Respondent's access to its property. 85. It was therefore argued that allowing the stay would merely prolong the existing dispute and further delay the determination of the substantive suit, notwithstanding the Respondent's substantial investment and the need to comply with the conditions imposed by KeRRA. The Learned Counsel submitted that the interests of justice favoured allowing the trial Court proceedings to proceed to conclusion rather than suspending the matter indenitely on account of an interlocutory Appeal. 86. In conclusion, the Learned Counsel submitted that the Appellants had failed to satisfy the mandatory and cumulative requirements under the provision of Order 42 Rule 6(1) and (2) of the Civil Procedure Rules, 2010. Thus, the Application dated 11th March, 2026 lacked merit and amounted to an attempt to delay the expeditious hearing and determination of “Kwale MCELC No. E009 of 2026’. He urged this Honourable Court to dismiss it with costs to the Respondent. VII. Analysis and Determination 87. I have carefully considered the two ( 2 ) Notice of Motion applications, the led rival adavits led in support of and in opposition to each, the exhibits annexed thereto, and the comprehensive written submissions led by both Counsels together with a myriad of the authorities cited therein, the relevant provision of the Constitution of Kenya, 2010 and the statures. 88. In order to reach an informed, just, reasonable and fair decision, Honourable Court has crafted the following three (3) salient issues for its determination. These are: a. Whetherthe Appellants have satised the threshold set out under the provision of Order 42 Rule 6 of the Civil Procedure Rules, 2010 for the grant of stay of execution and/or enforcement of the orders of 6th March, 2026 pending the Appeal. b. Whether the Appellants have demonstrated the exceptional circumstances necessary for this Court to stay the further proceedings before the trial Court pending the Appeal. c. Who should bear the costs of the two applications. Issue No. a). Whether the Appellants have satised the threshold set out under the provision of Order 42 Rule 6 of the Civil Procedure Rules, 2010 for the grant of stay of execution and/or enforcement of the orders of 6th March, 2026 pending the Appeal. 89. Under this sub heading, the Honourable Court will be examining the twin and main substrata of the matter herein being whether to grant stay of proceedings and hence execution of the Lower Court matter awaiting the outcome of the appeal preferred before this Honourable Court herein. The applicable law is the provision of Order 42 Rule 6(1) and (2) of the Civil Procedure Rules, 2010, which provides in the material part as follows: “ (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 sucient 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, https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5972/eng@2026-09-21 30

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to consider such application and to make such order thereon as may to it seem just... (2) 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.” 90. The conditions imposed by Order 42 Rule 6 (2) are cumulative. The court must be satised as to: the arguability of the intended appeal; the prospect of substantial loss to the applicant if the stay is refused; the absence of unreasonable delay in bringing the application; and the willingness of the applicant to provide such security as the court may order. See the case of:- “Kenya Commercial Bank Limited – Versus - Nicholas Kinyanjui Githogori & Another [2008] eKLR. 91. The foundational authority governing the exercise of this discretion remains the initial case over the said subject matter of:- “Butt – Versus - Rent Restriction Tribunal [1982] KLR 417”, in which the Court of Appeal laid down the following enduring principles:“ The power of the court to grant or refuse an application for stay of execution is a discretionary power. The discretion should be exercised in such a way as not to prevent an appeal. The general principle in granting or refusing a stay is: if there is no overwhelming hindrance, the stay must be granted so that an appeal may not be rendered nugatory should that appeal court reverse the judge's decision. A judge should not refuse a stay if there are good grounds for granting it merely because, in his opinion, a better remedy may become available to the Applicants at the end of the proceedings. The court, in exercise of its discretion whether to grant or refuse an application for stay, will consider the special circumstances of the case and its unique requirements." 92. The conditions under the said provision are conjunctive and not disjunctive, such that the absence of one aects the exercise of the discretion of the Court. This position was reinforced by the Court of Appeal case, apparently relied by both the Learned Counsels, of “Vishram Ravji Halai (Supra)”, where it was held that whereas the Court of Appeal’s power to grant a stay pending appeal is unfettered, the High Court’s jurisdiction to do so under Order 42 Rule 6 of the Civil Procedure Rules, 2010 is fettered by three conditions, namely, the establishment of a sucient cause, the satisfaction of substantial loss and the furnishing of security, and further that the application must be made without unreasonable delay. i. Whether substantial loss may result to the Appellants 93. Substantial loss has been described as the cornerstone of the jurisdiction to grant stay of execution. In the case of “Kenya Shell Limited – Versus – Benjamin Karuga Kibiru & Another (1986) KLR 410”, Platt, Ag. JA. (as he then was) expressed himself thus:“ It is usually a good rule to see if Order XLI Rule 4 of the Civil Procedure Rules can be substantiated. If there is no 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 https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5972/eng@2026-09-21 31

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its various forms, is the corner stone of both jurisdictions for granting a stay. That is what has to be prevented.” 94. Similarly, in the case of:- “James Wangalwa & Another – Versus – Agnes Naliaka Cheseto (Supra), Gikonyo, J. held that the applicant must establish other factors which show that the execution will create a state of aairs that will irreparably aect or negate the very essential core of the applicant as the successful party in the appeal, that being what substantial loss would entail. 95. The Appellants have deposed that the impugned orders, being enforceable with police assistance, threaten the immediate closure of businesses said to have operated on the suit property for approximately twenty (20) years. Whatever the ultimate merit of the Appellants' claim to the road reserve, the practical consequence of enforcement, namely displacement of ongoing business operations before the propriety of the orders founding that displacement has been tested on appeal, is the kind of loss that is not readily undone by an award of damages, and is precisely the mischief that Order 42 Rule 6 is designed to guard against. I am conscious of the Respondent's countervailing position, its substantial investment, the conditions and timelines imposed upon it by KeRRA, and the prejudice occasioned by continuing obstruction of its access. That prejudice is real, but it is not, in my assessment, of the same immediately irreversible character; the Respondent's loss is capable of being quantied and, if the Appeal fails, compensated or otherwise addressed upon the lifting of any stay. ii. Whether the application was made without unreasonable delay 96. The impugned orders were issued on 6th March, 2026 and the Notice of Motion application, together with a Certicate of Urgency, was led on 11th March, 2026, a period of ve (5) days. That timeline cannot, by any measure, be characterized as unreasonable delay. This Court accordingly nds that the application was brought timeously and without unreasonable delay upon the emergence of the threat of execution. The second condition is equally satised. ii. Security for the due performance of the decree 97. The essence of security was aptly enunciated in the case of:- “Arun C. Sharma – Versus – Ashana Raikundalia t/a A. Raikundalia & Co. Advocates & 2 Others”, where the Court stated 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 and is not to punish the judgment debtor. As was further held by the Court of Appeal in the case of “Nduhiu Gitahi & Another – Versus – Anna Wambui Warugongo (1988) 2 KAR 100”, so long as the opposite party can be adequately protected, it is right and proper that security should be given in a way which is least disadvantageous to the party giving it, and the form of the security is a matter within the discretion of the Court. 98. I note that the Appellants did not, either in the founding application or in submissions, oer any security for the due performance of the orders that may ultimately bind them. This is not a matter I can overlook, as the requirement is cumulative and not one that is open to be dispensed with altogether. I am, however, satised that this deciency is properly cured by an appropriate conditional order rather than outright refusal of the substantive relief, particularly where I have found the other two limbs of the test satised, and where the consequence of an unconditional dismissal would be to expose the Appellants to the very irreversible harm the doctrine is meant to avert. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5972/eng@2026-09-21 32

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Issue No. b) Whether the Appellants have demonstrated the exceptional circumstances necessary for this Court to stay the further proceedings before the trial Court pending the Appeal. 99. The power of this Court to grant an order for stay of proceedings pending appeal is not in dispute. Such jurisdiction is derived from Section 6 of the Civil Procedure Act, Cap. 21, Order 42 Rule 6 of the Civil Procedure Rules, 2010 and Section 3A of the Civil Procedure Act, Cap. 21 and is further anchored in this Court’s inherent jurisdiction to make such orders as may be necessary for the ends of justice. 100. The principles that guide a court in determining whether to grant a stay of proceedings are now well settled. Unlike stay of execution, stay of proceedings is a more drastic remedy and must be exercised sparingly and judiciously. The Court must weigh competing interests and determine whether it is in the interests of justice to halt the proceedings. 101. In the case of “Global Tours & Travels Limited; Nairobi HC Winding Up Cause No. 43 of 2000”, the court held as follows:“ As I understand the law, whether or not to grant a stay of proceedings or further proceedings on a decree or order appealed from is a matter of judicial discretion to be exercised in the interest of justice …... the sole question is whether it is in the interest of justice to order a stay of proceedings and if it is, on what terms it should be granted. In deciding whether to order a stay, the court should essentially weigh the pros and cons of granting or not granting the order. And in considering those matters, it should bear in mind such factors as the need for expeditious disposal of cases, the prima facie merits of the intended appeal, in the sense of not whether it will probably succeed or not but whether it is an arguable one, the scarcity and optimum utilization of judicial time and whether the application has been brought expeditiously.” 102. 103. The Court then distilled the following three main principles to guide a Court in such applications: i. Whether the Applicant has established that he/she has a prima facie arguable case. ii. Whether the application was led expeditiously and iii. Whether the Applicant has established sucient cause to the satisfaction of the Court that it is in the interest of justice to grant the orders sought. In the case of:- “Christopher Ndolo Mutuku & Another - Versus - CFC Stanbic Bank Limited (2015) eKLR”, the Court observed that:“ …what matters in an application for stay of proceedings pending appeal is the overall impression the Court makes out of the total sum of the circumstances of each, which should arouse almost a compulsion that the proceedings should be stayed in the interest of justice…” 104. Similarly, in the case of “Pius Kawinzi Kithoka – Versus - Jacinter Kavindu Makau”, the Court made the following observation:“ The Applicant has given no explanation at all for this delay. In my view, it shows lack of seriousness in pursuing the appeal at worst, and at best a vexing tardiness which disentitles him from the Court’s discretion. Equity does not aid the indolent” https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5972/eng@2026-09-21 33

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105. The Halsbury’s Law of England 4th Edition Vol. 37 pages 330 and 332 states that:“ The stay of proceedings is a serious, grave, and fundamental interruption in the right that a party has to conduct his litigation towards the trial on the basis of the substantive merits of his case, and therefore the court’s general practice is that a stay of proceedings should not be imposed unless the proceeding beyond all reasonable doubt ought not to be allowed to continue.” This is a power which, it has been emphasized, ought to be exercised sparingly, and only in exceptional cases. “It will be exercised where the proceedings are shown to be frivolous, vexatious or harassing or to be manifestly groundless or in which there is clearly no cause of action in law or in equity. The applicant for a stay on this ground must show not merely that the Plainti might not, or probably would not, succeed but that he could not possibly succeed on the basis of the pleading and the facts of the case.” 106. It is therefore clear that in determining whether or not to grant an order for stay of proceedings, the Court must bear in mind the general rule that once a suit is led, proceedings ought to continue without interruption until the suit is determined. This is premised on the right of every person to a fair trial which includes the right to have the trial begin and conclude without unreasonable delay as enshrined in Article 50 (2) (e) of the Constitution as well as the principle that justice delayed is justice denied, being a cardinal principle that guides Courts in the exercise of judicial authority. It is against this background that orders for stay of proceedings ought to be sparingly granted and only in exceptional circumstances that demonstrate that there are compelling reasons and it would go against all that is deemed just and fair to proceed with the suit 107. Now, turning to the facts of the present matter. I bear in mind the three guiding considerations distilled above, namely: whether the Appellants have established a prima facie arguable case in the pending Appeal; whether the Application dated 11th June, 2026 was led expeditiously; and whether the Appellants have demonstrated sucient cause, to the satisfaction of the Court, that it is in the interest of justice that the further conduct of the civil case “Kwale MCELC No. E009 of 2026” be halted pending the Appeal. i. Whether the Appellants have a prima facie arguable case 108. I have already found, in my determination of the rst application, that the Appeal is not frivolous and raises an arguable question touching on the Appellants' right to be heard under the provision of Article 50(1) of the Constitution, occasioned by the expunction of their Replying Adavit. That nding is not disturbed by my determination of the present application. An arguable appeal is, however, only the rst of three cumulative considerations; it does not, without more, translate into a proper basis for the more drastic remedy of a stay of proceedings. ii. Whether the application was led expeditiously 109. The orders sought to be shielded from the eect of continued trial proceedings were issued on 6th March, 2026. The Memorandum of Appeal was led shortly thereafter, and the rst application for stay of execution followed on 11th March, 2026. The present Application, however, was not led until 11th June, 2026, some three months later, and appears to have been triggered principally by the xing of the suit for pre-trial directions on 12th June, 2026, rather than by any fresh or independent development in the proceedings. While I do not nd this delay so inordinate as to be fatal on its own, it does temper https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5972/eng@2026-09-21 34

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the urgency ordinarily associated with applications of this nature and is a factor I weigh, together with the others, in the exercise of my discretion. iii. Whether sucient cause has been shown 110. This is the limb upon which the Application falters. The Respondent's uncontroverted evidence, set out in the Replying Adavit of Dr. Kawaljeet Singh Rekhi sworn on 15th July, 2026, discloses a consistent pattern of procedural default on the part of the Appellants before the trial Court: the late ling of the Statement of Defence on 26th March ,2026, the failure to le witness statements and a list of documents in compliance with Order 11 of the Civil Procedure Rules, 2010, and a further default on the same score when the matter was mentioned on 12th June, 2026. None of these lapses has been explained, still less justied, in the Appellants' papers. 111. A litigant who seeks the equitable and discretionary remedy of a stay of proceedings must approach the Court with clean hands and demonstrate diligence in the prosecution of the very proceedings sought to be preserved. The pattern of non - compliance disclosed on this record, unconnected as it is to the 7th Appellant's earlier and now-resolved indisposition, does not envisage the diligence that equity demands. As was observed in the case of:- “Pius Kawinzi Kithoka – Versus - Jacinter Kavindu Makau”, a want of explanation for procedural delay discloses, at best, a tardiness that disentitles a party to the Court's discretion, for equity does not aid the indolent. 112. More fundamentally, the substratum of the Appeal is not, in my assessment, imperiled by allowing the trial Court to proceed with pre-trial directions and the eventual hearing of “Kwale MCELC No. E009 of 2026”. The specic prejudice the Appellants fear, is namely the enforcement of the injunctive orders of 6th March, 2026 to their exclusion from the suit property before the Appeal is heard. This has already been addressed and neutralized by the conditional stay of execution and/or enforcement granted under Issue (a) above. What remains is the ordinary progression of the suit toward trial, including the taking of pre-trial directions, which is a process independent of and does not foreclose the questions raised in the Appeal. 113. As regards the prayer in the Appeal for transfer of the suit to another Magistrate's Court. I do not nd that the continued conduct of pre-trial matters renders that prayer nugatory. Should the Appeal succeed on that ground, the suit, wherever it has reached short of nal Judgment, remains capable of transfer and continuation before another competent court without any resultant prejudice that could not be remedied by appropriate directions at that stage. The risk contemplated by the authorities, namely that trial proceedings might conclude and render an appeal an academic exercise, is speculative on the material before me and does not arise at the pre-trial stage presently in contemplation. 114. Weighing the three considerations together, I nd that while the Appeal is arguable, the Appellants have not demonstrated the exceptional circumstances and sucient cause required to warrant the more drastic remedy of a stay of proceedings, particularly where their own conduct before the trial Court has been marked by repeated and unexplained non-compliance, and where the risk of the Appeal being rendered nugatory has already been substantially addressed through the conditional stay of execution granted in respect of the orders of 6th March, 2026. For these reasons, I discern that the Notice of Motion application dated 11th June, 2026 must accordingly fail. Issue No. c). Who should bear the costs of the two applications. 115. Under this sub ‑ heading the Honourable Court will decipher whether costs should be awarded to the Appellants or the Respondent, and the principles guiding such determination. Costs is an issue at the discretion of Court. Costs mean the award that a party is granted at the conclusion of legal action https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5972/eng@2026-09-21 35

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or proceedings in any litigation. The Proviso of Section 27 (1) of the Civil Procedure Rules Cap. 21 holds that Costs follow the events. By the event, it means outcome or result of any legal action. This principle encourages responsible litigation and motivates parties to pursue valid claims. See the cases of “Harun Mutwiri – Versus - Nairobi City County Government [2018] eKLR” and “Kenya Union of Commercial, Food and Allied Workers – Versus - Bidco Africa Limited & Another [2015] eKLR”, the court rearmed that the successful party is typically entitled to costs, unless there are compelling reasons for the court to decide otherwise. In the case of “Hussein Muhumed Sirat – Versus - Attorney General & Another [2017] eKLR”, the court stated that costs follow the event as a well-established legal principle, and the successful party is entitled to costs unless there are other exceptional circumstances. 116. In the present matter, the two (2) applications have led the Court in a distinct direction. They have and produced dierent outcomes. By and large, the Notice of Motion application dated 11th March, 2026 has substantially succeeded, albeit subject to conditions. Whilst, on the contrary, the Notice of Motion application dated 11th June, 2026 has failed. 117. This notwithstanding, the Court also takes into account that both applications arise from the same underlying dispute and that the determination of one has a direct bearing upon the other. In the circumstances, it would not serve the interests of justice to award the Respondent the entirety of the costs of both applications. 118. In all fairness, I am therefore of the view that the appropriate order is that each party shall bear its own costs of the Notice of Motion application dated 11th June, 2026, while the costs of the Notice of Motion dated 11th March, 2026 shall abide the outcome of ELC Appeal No. E012 of 2026. VII. Conclusion and Disposition. 119. In the long run, having caused an indepth to the framed issues herein, the Honourable Court based on the principles of Preponderance of Probabilities and the balance of Convenience, proceeds to make the following nal and specic orders:a) b) That the Notice of Motion application dated 11th March, 2026 be and is hereby allowed on the following terms: i. There be and is hereby granted an order of stay of execution and/or enforcement of the orders issued on 6th March, 2026 in the Civil case of “Kwale MCELC No. E009 of 2026 – Habiba Investments Limited – Versus - Felister Mukai Ngala & 7 Others”, pending the hearing and nal determination of ELC Appeal No. E012 of 2026; ii. The stay granted herein is conditional upon the 1st to 8th Appellants, jointly and/or severally, depositing security in the sum of Kenya Shillings Five Hundred Thousand (Kshs. 500,000/=), either in cash into a joint Escrow interest-earning account at a reputable Commercial nancial institution in the names of Messrs. Mwenda Miriti & Company Advocates and Murigi Kamande Associates for the parties, or by way of an insurance bond or bank guarantee from a reputable underwriter or bank acceptable to the Respondent within the next thirty (30) days from the date of this Ruling. iii. In default of the deposit of security within the stipulated period, the stay granted herein shall automatically lapse without further reference to this Court, and the orders issued on 6th March 2026 shall become forthwith enforceable; That the Notice of Motion application dated 11th June, 2026 be and is hereby dismissed. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5972/eng@2026-09-21 36

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c) That the trial Court is at liberty to proceed with and conclude pre-trial directions, and thereafter the hearing, of Kwale MCELC No. E009 of 2026, notwithstanding the pendency of ELC Appeal No. E012 of 2026, save that no nal judgment therein shall be executed against the Appellants in a manner inconsistent with the conditional stay of execution granted in order (a) above, pending the hearing and determination of the said Appeal. d) That there shall be a mention on 5th November, 2026 for purposes of conrming ling of Record of appeal and its disposition before ELC No. 1, Kwale. e) That each party shall bear its own costs for the Notice of Motion applications dated 11th March 2026, while the Notice of Motion application dated 11th June, 2026 shall abide the outcome of the appeal before this Court hereof. It is so ordered accordingly. RULING DELIVERED THROUGH MICROSOFT TEAM VIRTUAL MEANS, SIGNED AND DATED AT KWALE THIS 21ST DAY OF SEPTEMBER 2026. ........................................ HON. MR. JUSTICE L. L. NAIKUNI, ENVIRONMENT AND LAND COURT AT KWALE Ruling delivered in the presence of: a. Mr. Daniel Disii, the Court Assistant. b. Mr. Lusamba Advocate holding brief for Mr. Mwenda Advocate for the Appellants/Applicants. c. No appearance for the Respondent. ELCLA E012 of 2026 HON. JUSTICE L.L NAIKUINI Page 21 of 21 https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5972/eng@2026-09-21 37

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