Titus Kitonga and Nasim Mulandi Kitonga vs Hashtag Biz Hub Company Ltd

vacate and give up vacant possession of the suit property known as NAIROBI/BLOCK TASSIA-II-97/0794/088 to the Appellants within sixty (60) days of the date of this judgment, failing which the Appellants are at liberty to take all lawful steps to enforce this order including seeking the assistance of the Officer Commanding Police Division of Embakasi Police Station. v. The costs of the suit in the court below and the costs of this appeal are awarded to the Appellants.” 2. Being Dissatisfied with the Judgment, the Respondent/Applicant filed a notice of intention to Appeal the judgment at the Court of Appeal. The Respondent/Applicant moved this court by way of Notice of Motion dated 1st July 2026(1.07.2026), pursuant to Articles 23(c), 40, 48, 50 and 159 of the Constitution, Sections 1A, 1B and 3A of the Civil Procedure Act, Order 42 Rule 6 of the Civil Procedure Rules and all enabling provisions of the law seeking the following orders:“1.This Application be certified urgent. 2. Pending the hearing and determination of this Application, there be a temporary stay of execution of the Judgment and Decree delivered on 19th June 2026. 3. Pending the hearing and determination of the intended appeal to the Court of Appeal, there be a stay of execution of the Judgment, Decree and all consequential orders issued on 19th June 2026. Page 2 of 13

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4. There be a stay of the order directing the Respondent/Applicant to vacate L.R. No. NAIROBI/BLOCK TASSIA-II-97/0794/088. 5. There be a stay of any eviction or enforcement proceedings arising from the Judgment. 6.Costs of this Application abide the outcome of the intended appeal.” 3. The Application is supported by the Affidavit of Anthony Karani Kinyua sworn on 01.07.2026 and grounds on the face of motion of even date. The Applicant/Respondent averred that he operates business premises on the suit property occupied by tenants and if stay of execution order is not granted, he is likely to suffer substantial loss. The applicant contended that he is ready and willing to provide security for due performance of the decree pending filing, hearing and determination of intended appeal on terms just and dictated by the court. The Applicant/respondent averred that the intended appeal raises triable issues and would be rendered nugatory should stay of execution order be not granted as he is likely to be evicted by the Appellants/Respondents in execution of the decree/order dated 19.6.2026. He urged the application to be allowed with costs. 4. In response to the notice of motion, (Titus Mulandi Kitonga) swore a replying affidavit on July 8, 2026, on his own behalf and of the 2nd and 3rd Appellants/respondents. He contended that the application for stay of execution lacks merit, constitutes an abuse of the court process, and should be dismissed with costs. He averred that Hon Justice Wabwoto’s judgment delivered on June 19, 2026, struck out Nairobi Chief Magistrate Civil Suit No. 4665 of 2019 for want of jurisdiction and issued consequential orders directing the Respondent and all persons Page 3 of 13

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claiming under it to vacate the suit property within 60 days failure of which the Appellants/Respondents to enforce the order including seeking the assistance of the officer commanding police division of Embakasi police station. 5. The Appellant/Respondent submitted that the Environment and Land Court struck out the suit for lack of jurisdiction and determined all underlying issues, the court is functus officio and lacks jurisdiction to stay its own judgment or grant the requested orders. Further the Appellants /Respondents argue that an order striking out a suit is negative which is incapable of being stayed. The Appellants asserted that the Respondent/Applicant failed to provide tangible, verifiable evidence of substantial or irreparable loss. The respondent contended that any alleged financial hardship or loss suffered by the Respondent is self-induced due to its unlawful, decade-long occupation, collection of rent from third parties, and persistent failure to pay the purchase price deposit balance or execute the underlying sale agreement. 6. The Appellants/Respondents contended that two independent High Court rulings (by Justice Angote in ELC No. 67 of 2019 and Justice Wabwoto in the present appeal) confirmed that the magistrate's court proceedings were null and void ab initio. They contend that granting a stay of execution would shield illegal occupation, frustrate a successful litigant's enjoyment of judgment fruits, and allow the Respondent to prolong unlawful possession without providing security or showing a prima facie case with probability of success. The orders sought by the applicant/respondent ought to be pursued before the Court of Appeal. B. Directions of the Court: 7. The court with the consent of the parties directed that the matter be canvassed by way of written submissions. The Respondent/Applicant filed its submissions dated 17.08.2026, Page 4 of 13

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while the Appellants/Respondents filed submissions on 28.08.2026. Upon considering the Application, Replying Affidavit, Annexures, rival submissions, authorities and Court’s record, the issues for determination are:a. Whether the Respondent/Applicant has satisfied the legal conditions for the grant of a stay of execution pending appeal under Order 42, Rule 6 of the Civil Procedure Rules. b. who should bear the costs of the Application? C:Analysis and determination: (i)Whether there was a delay in filing the application. 8.The impugned judgment was delivered on June 19th, 2026, granting a temporary stay of execution for sixty (60) days to enable the Respondent/Applicant to vacate the suit property. Notice of Motion dated 1.7.2026 was filed on 1.7.2026 within the stipulated period. There was no delay in filing the Application by the Applicant/Respondent. (ii. ) Whether the court has jurisdiction to entertain the application: 9. The Appellants raised the doctrine of functus offi cio as a bar to this court entertaining the Application. The Court in Atancha v Lecourt karam [2026] KEHC 1783 (KLR) stipulates that: “15. In Raila Odinga & 2 Others vs. Independent Electoral and Boundaries Commission & 3 Others [2013] eKLR, the Supreme Court held that a court becomes functus officio once it has performed all its duties in a matter and cannot re-engage with it except as provided by law. Page 5 of 13

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16. It is however settled that the doctrine does not bar a court from addressing ancillary, incidental, or collateral matters, such as correction of clerical errors, taxation of costs, enforcement mechanisms, or applications for stay of execution pending appeal, which do not amount to a re-determination of the merits. This means that the court retains residual jurisdiction to entertain ancillary matters such as stay of execution pending appeal.” 10.The court finds it has residual jurisdiction to entertain an application for stay of its decree/order pending hearing and determination of an intended appeal or appeal based on the circumstances of each case. (iii). whether the applicant has satisfied the principles for granting stay of execution pending appeal or intended appeal Page 6 of 13

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11.Order 42 Rule 6 of the Civil Procedure Rules, 2010 stipulates:1. .No appeal or second appeal shall operate as a stay of execution or proceedings under a decree or order appealed from except in so far as the court appealed from may order but, the court appealed from may for sufficient cause order stay of execution of such decree or order, and whether the application for such stay shall have been granted or refused by the court appealed from, the court to which such appeal is preferred shall be at liberty, on application being made, to consider such application and to make such order thereon as may to it seem just, and any person aggrieved by an order of stay made by the court from whose decision the appeal is preferred may apply to the appellate court to have such order set aside. 2. No order for stay of execution shall be made under subrule (1) unless— 1) the court is satisfied that substantial loss may result to the applicant unless the order is made and that the application has been made without unreasonable delay; and 2) 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. 3. Notwithstanding anything contained in subrule (2), the court shall have power, without formal application made, to order upon such terms as it may deem fit a stay of execution pending the hearing of a formal application. 4. For the purposes of this rule an appeal to the Court of Appeal shall be deemed to have been filed when under Page 7 of 13

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the Rules of that Court notice of appeal has been given. 5. An application for stay of execution may be made informally immediately following the delivery of judgment or ruling. 6. Notwithstanding anything contained in subrule (1) of this rule the High Court shall have power in the exercise of its appellate jurisdiction to grant a temporary injunction on such terms as it thinks just provided the procedure for instituting an appeal from a subordinate court or tribunal has been complied with.” 12. The court in Hassan & another v Makacy & 2 others (Sued as the Chairman, Secretary and Treasurer Respectively of East Sidaz Self Help Youth Group) (Environment and Land Appeal E224 of 2024) [2025] KEELC 3821 (KLR), Ndiaye vs African Virtual University [2015] eKLR faced with an application for stay of execution restated the principles for granting stay of execution pending appeal or intended appeal pursuant to the provisions of order 42 rule 6 of the civil procedure rules 2010 to the extent that applicant must show that the application was filed without inordinate delay, there is sufficient cause ,Substantial loss would be suffered if the orders of stay of execution is not granted and Applicant is ready and willing to provide security for due performance of the decree/order pending hearing and determination of the appeal or intended Appeal. 13.It trite that prerequisite conditions for granting a stay of execution pending appeal or intended appeal under Order 42 Rule 6 of the Civil Procedure Rules, 2010 are conjunctive and not disjunctive as restated in the case of Kimondo & Page 8 of 13

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another vs progressive credit ltd (2025) klr implying the applicant must prove all the conditions prior to grant of stay of execution of the decree pending hearing and determination of appeal or intended appeal. 14. As to whether the order sought to be stayed is capable of execution, The Applicant/respondent was granted 60 days to vacate the suit property failure of which the Appellants/Respondent to enforce the order seeking the assistance of the officer commanding police division of Embakasi police station. The orders issued on 19.06.2026 are against the applicant hence negative in nature which cannot be stayed in light of the case of Co-operative Bank of Kenya Limited v Banking Insurance & Finance Union (Kenya) [2015] KECA 353 (KLR) and Kaushik Panchamatia & 3 others v Prime Bank Limited & another [2020] KECA 418 (KLR) . 15.The Applicant submitted that if evicted out of the suit property, He will lose his business and suffer financial hardship hence the substantial loss likely to be suffered. In the case of James Wangalwa & Another v. Agnes Naliaka Cheseto [2012] KEHC 1094 (KLR) where the court held: “11. 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 Page 9 of 13

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affairs that will irreparably affect or negate the very essential core of the Applicant as the successful party in the appeal. This is what substantial loss would entail, a question that was aptly discussed in the case of Silverstein N. Chesoni [2002] 1KLR 867, and also in the case of Mukuma V Abuoga quoted above. The last case, referring to the exercise of discretion by the High Court and the Court of Appeal in the granting stay of execution, under Order 42 of the CPR and Rule 5(2) (b) of the Court of Appeal Rules, respectively, emphasized the centrality of substantial loss thus: “…the issue of substantial loss is the cornerstone of both jurisdictions. Substantial loss is what has to be prevented by preserving the status quo because such loss would render the appeal nugatory.” With this observation, of course, a frivolous appeal cannot in practical terms be rendered nugatory. The only admonition, however, is that the High Court should not base the exercise of its discretion under order 42 Rule 6of the CPR only on the chances of the success of the appeal. Much more is needed in accordance with the test I have set out above.” 16.The Applicant is faced with threats of eviction out of the suit property pending hearing and determination of appeal or intended appeal upon expiry of 60 days from 19.6.2026. should applicant be evicted out of the suit property and appeal succeeds, reinstating the applicant/respondent to the suit premise will likely take some time or almost impossible which demonstrates the substantial loss likely to be suffered by the applicant/respondent if stay of execution of decree is not Page 10 of 13

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granted pending hearing and determination of the intended appeal. 17.In the case of Public Service Commission & 72 Others v. Okiya Omtatah & 4 Others [2021] KECA 392 (KLR) while addressing the issue of an arguable appeal stipulated as follows: -“16. In satisfaction of the first prerequisite, applicants rely on the annexed memorandum of appeal whose contents are already highlighted above and which we find no need to rehash. Our take on the same is that in law an arguable appeal is not one which must necessarily succeed, but one which is not frivolous but raises a bona fide issue that can be argued fully before the Court. See the case of Joseph Gitahi Gachau & Another vs. Pioneer Holdings (A) Ltd. & 2 Others, Civil Application No. 124 of 2008. A single bona fide arguable ground of appeal is sufficient to satisfy this requirement. See the case of Damji Pragji Mandavia vs. Sara Lee Household & Body Care (K) Ltd, Civil Application No. Nai 345 of 2004.” 18. Applicant/respondent’s suit was struck out vide the judgment dated 19.6.2026 for want of jurisdiction of the trial magistrate to entertain the matter. The Applicant/respondent lodged notice of Appeal dated 22.6.2026 and annexed draft memorandum of appeal in support of the intended appeal challenging the propriety of impugned judgement dated 19.6.2026 in particular jurisdiction of the court to entertain a matter at the magistrate’s court which raise a triable issue for determination at the court of appeal. 19.The Respondents/Appellants urged that the Application has been overtaken by events. The respondent has not demonstrated surrender of vacant possession of the suit Page 11 of 13

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property to the Appellant/respondents by Applicant /Respondent in satisfaction of the impugned decree dated 19.6.2026. Accordingly, there is no basis for finding that the application has been overtaken by events. (v) Sufficient security. 20.The Applicant/respondent demonstrated good faith and willingness in its supporting affidavit to provide security for due performance of the decree pending hearing and determination of intended appeal on terms dictated by the court thereby complying with the provisions of order 42 rule 6 of civil procedure rules,2010. 21.Despite the Applicant satisfying the conditions for granting a stay of execution pending hearing and determination of intended appeal, the order sought is against a negative ordercontrary to the principle that a negative order cannot be stayed. In the circumstances the application is not merited and therefore disallowed. The Applicant is best suited to move the court of appeal for the grant of the orders sought herein. 22.Costs follow events. considering the circumstances of the case, each party is ordered to bear own costs of the application. 23.The final disposition of the court regarding the application dated July 1,2026 is that the application is dismissed with each party to bear their own costs. It is so ordered. Dated, Signed and Delivered on this 22nd day of September 2026 at Voi HON. J. A. ORWA Page 12 of 13

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JUDGE In the presence of: Mr. Onindo & Ms. Nasimiyu for the Respondents/Appellants Mr. Kiarie for the Applicant/Respondent. Letisiah - Court Assistant Page 13 of 13

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