Okumu v Muciri

3. a. The Appellant was dissatised with the ruling delivered by the Trial Court in Msambweni MCELC Case No. E022 of 2025 on 10th July 2026 which allowed the Respondent’s application therein and issued a mandatory injunction compelling the Appellant to remove the entrance gate erected on his property known as Kwale/Ukunda/7710 pending hearing of the main suit. b. He has lodged an appeal against the said ruling vide the Memorandum of Appeal dated 12th July 2026. c. His advocates where not able to seek stay of execution of the ruling during its delivery as they were not present due to power outage aecting their oces. d. The application has been led without unreasonable delay. e. The appeal raises serious and arguable questions of both law and fact with overwhelming chances of success. f. The Trial Magistrate erred in granting the interlocutory mandatory injunction and relying on the County Surveyor’s report as conclusive evidence of the existence of an access road. g. Unless stay is granted, the Appellant would suer substantial and irreparable loss as the impugned orders require demolition of the entrance gate which has been existence for several years. The demolition would expose the Appellant’s residence to security risks including unlawful access, trespass and criminal intrusion. h. The resultant loss cannot be compensated adequately by damages. i. The Respondent has never accessed her land through the Appellant’s land and that prior to the institution of the suit, the Respondent accessed the land through an alternative access route. j. Unless stay is granted, the appeal would be rendered nugatory. k. The Respondent would suer no prejudice if status quo is maintained pending hearing of the appeal. The Respondent vide Replying Adavit sworn on 22nd July 2026 opposed the application. She averred that: i. The Appellant had not satised the conditions for grant of stay of execution pending appeal. ii. The Trial Court correctly found that the Appellant’s gate blocked the access road leading to the Respondent’s Land Parcel Number Kwale/Ukunda/7711. iii. The existence of the access road was conrmed by the County Surveyor and the Land Registrar during a scene visit wherein the Appellant was present and participated in the survey exercise. She made reference to the survey report. iv. The legality and authenticity of the survey report was unfounded and were considered by the Trial Court. v. The Trial Court correctly applied the legal principles governing mandatory injunction in ordering the removal of the Appellant’s gate. vi. The Appellant has not demonstrated he will suer substantial loss if stay was not granted and that the alleged security concerns could not override her right to access and enjoy her property. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/6048/eng@2026-09-25 2

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4. vii. The gate was unlawfully erected on a public access road. viii. The allegation the Respondent has an alternative route was misleading. ix. The Application be dismissed with costs. The Applicant led a further adavit asserting that: a. The Respondent had not denied using an alternative access road for several years. b. Even if the gate was removed, the Respondent would still be unable to access her property as there exists a wall beyond the gate and that execution of the orders would not yield any practical benet to the Respondent. c. The survey report did not conclusively determine the dispute but instead recommended that the dispute be referred to the Land Registrar and District Surveyor for determination. A copy of the surveyor’s report dated 1st December 2025 was annexed as “HOO-1”. d. The Appellant was denied a meaningful opportunity to participate in lawful boundary ascertainment process before the Land Registrar. e. Once the gate is demolished it could not be restored to its original condition. 5. On 29th July 2026, the parties herein appeared before this Honourable Court and made oral submissions. The Appellant, through his advocate, reiterated the contents of his Adavits and submitted that he has a right to appeal. He sought a chance to litigate his appeal. That their appeal raised both factual and legal grounds which have high chances of success. That execution was likely to proceed unless stay is granted. They urged that the subject matter be preserved so that the appeal is not rendered nugatory. It was submitted that the Respondent would not suer any prejudice as she had been using an alternative access. 6. The Respondent in her submissions, relied on her Replying Adavit and averred that she was suering as she had no access to her property. She submitted that the alternative route she used had been fenced recently and that she had no access thereto. She further contended that she would not be able to pass even if the gate was removed as there was a wall past the gate. She asserted that the wall was constructed recently before the ruling was delivered. 7. The Appellant in a rejoinder disputed the assertion that the wall was constructed recently while referring to the pleadings in the Trial Court that made reference to the existence of the perimeter wall. 8. The matter was thereafter reserved for ruling. Issues for determination 9. I have carefully read and considered the Appellant’s application dated 12th July 2026, the adavits in response to the applications, the oral submissions and the relevant legal provisions. 10. The Court distills the following issue for determination: i. Whether an order of stay of execution of the ruling delivered on 10th July 2026 pending the determination of the appeal should issue? https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/6048/eng@2026-09-25 3

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Analysis and Determination Whether an order of stay of execution of the ruling delivered on 10th July 2026 pending the determination of the appeal should issue? 11. The principles upon which the Court may grant stay of execution pending appeal are enshrined in Order 42 Rule 6(2) of the Civil Procedure Rules which provides that: “ 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.” 12. 13. It is trite that an order of stay of execution pending appeal is a discretion of the Court. In Butt v Rent Restriction Tribunal (1982) KLR the Court set out the principles governing the exercise of such discretion and held that – “ 1. The power of the Court to grant or refuse an application for a stay of execution is a discretionary power. The discretion should be exercised in such a way as not to prevent an appeal. 2. The general principle in granting or refusing a stay is; if there is no other overwhelming hindrance, a stay must be granted so that an appeal may not be rendered nugatory should that appeal Court reverse the judge’s discretion. 3. 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 applicant at the end of the proceedings. 4. The Court in exercising its discretion whether to grant [or] refuse an application for stay will consider the special circumstances of the case and unique requirements. The special circumstances in this case were that there was a large amount of rent in dispute and the appellant had an undoubted right of appeal. 5. The Court in exercising its powers under Order XLI rule 4(2)(b) of the Civil Procedure Rules, can order security upon application by either party or on its own motion. Failure to put security for costs as ordered will cause the order for stay of execution to lapse.” The Court in Njenga v Njeri & 2 others [2023] KEHC 23991 (KLR) held thus: “ The Primary purpose of stay of execution is to preserve the status quo pending the hearing of the appeal. In RWW v EKW [2019] eKLR, it was observed that: “The purpose of an application for stay of execution pending an appeal is to preserve the subject matter in dispute so that the rights of the appellant who is exercising the undoubted right of appeal are safeguarded and the appeal if successful, is not rendered nugatory. However, in doing so, the Court should weigh this right against the success of a litigant who should not be deprived of https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/6048/eng@2026-09-25 4

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the fruits of his/her judgment. The Court is also called upon to ensure that no party suers prejudice that cannot be compensated by an award of costs.” 14. For the Appellant to be entitled to the orders of stay of execution as sought, the Appellant has to demonstrate that there exist sucient cause warranting the exercise of this Court’s discretion in its favour. 15. The rst consideration is whether the application was led without unreasonable delay. The impugned ruling of the trial Court was delivered on 10th July 2026 and the memorandum of appeal led with the Court on the 13th July 2026. The application under Certicate of Urgency was led on the 13th July 2026, it is clear that the Applicant has moved this Court in a timely manner and without any delay. 16. The Appellant contends that he will suer substantial and irreparable loss if the orders of stay of execution are not granted as the execution would result in the destruction of permanent developments erected on his parcel of land. The Respondent on the other hand contends that the Appellant has failed to demonstrate that he will suer substantial loss if stay is not granted. 17. It is the duty of the Appellant herein to establish that he will suer substantial loss if the orders sought are not granted. In Machira t/a Machira & Co. Advocates v East African Standard (No 2) (2002) KLR 63 the Court of Appeal considered as to what amounts to substantial loss and held that – “ No doubt, in law, the fact that the process of execution has been put in motion, or is likely to be put in motion, by itself, does not amount to substantial loss. Even when execution has been levied and completed, that is to say, the attached properties have been sold, as is the case here, does not in itself amount to substantial loss under Order 42 Rule 6 of the CPR. This is so because execution is a lawful process. The applicant must establish other factors which show that the execution will create a state of aairs that will irreparably aect or negate the very essential core of the applicant as the successful party in the appeal ... the issue of substantial loss is the cornerstone of both jurisdictions. Substantial loss is what has to be prevented by preserving the status quo because such loss would render the appeal nugatory.” 18. The Court is therefore required to balance the interests of the parties while ensuring that the appeal is not rendered nugatory. The Appellant contends that execution of the impugned order would occasion substantial loss as his permanent development ie a gate would be demolished and therefore render the appeal an exercise in futility. The substratum of the appeal premised on the grant of a mandatory injunctive order at an interlocutory stage will no doubt be lost if the application is not granted. On the other hand, the Respondent opposes the application for stay on the ground that she continues to suer prejudice by reason of the restricted access to her property. She however concedes that the removal of the metal gate would not, by itself, restore access to her property in light of the existing perimeter wall, which wall is not a subject of the impugned orders. 19. What that basically means is that the execution of the order would be inconsequential to the Respondent’s interest of regaining access to her property while on the other hand, it may alter the current status of the subject suit properties and thereby prejudice the substratum of the appeal. It is therefore in the interest of justice that, status quo be maintained pending the hearing and determination of the appeal. 20. The upshot of this is that the application succeeds and is granted in the following terms; a. That the execution and/or enforcement of the Order emanating from the ruling delivered on 10th July 2026 by the Honourable L.W. Kabaria (SPM) in Msambweni https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/6048/eng@2026-09-25 5

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MCELC Case No. E022 of 2025 is hereby stayed pending the hearing and determination of the instant Appeal. b. That status quo obtaining immediately before the delivery of the Ruling on 10th July 2026, particularly regarding the Appellant's entrance gate, perimeter fence and occupation of parcel number Kwale/Ukunda/7710, be maintained. c. The costs of this Application will abide the outcome of the Appeal. DATED, SIGNED AND DELIVERED VIRTUALLY VIA MICROSOFT TEAMS AT KWALE THIS 25TH DAY OF SEPTEMBER 2026. HON. E. G NDERITU LJ ELC KWALE In the presence of: Mr Oketch Advocate for the Appellant N/A for the Respondent https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/6048/eng@2026-09-25 6

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