Intex Construction Limited v Suppliers & Services Limited & 3 others (Consolidated with ELC 691 of 2012 and ELC 598 of 2013; Charles Wambugu Gitonga v Supplies and Services Limited)

CHARLES WAMBUGU GITONGA …………….…………… PLAINTIFF VERSUS SUPPLIES AND SERVICES LIMITED ……..…………… DEFENDANT RULING 1. Before this court for determination is the 2 nd Defendant in ELC 1085 of 2013 Notice of Motion application dated 16 th May 2025, brought pursuant to the provisions of Sections 1A, 1B and 3A of the Civil Procedure Act, Order 22 Rule (1), and Order 51 Rule 1 of the Civil Procedure Rules seeking the following reliefs: i. That this Honourable court be pleased to stay the execution of judgment and decree herein pending hearing and determination of the Appeal. ii. That costs of this application be in the cause. 2. The motion is premised on the grounds set out on its face and is supported by the affidavit of Charles Wambugu Gitonga, the 2nd Defendant/Applicant, of an even date. He deponed that judgment was delivered on 20 th February 2025, and being dissatisfied with the decision, he lodged a notice of appeal and requested copies of the proceedings and judgment to facilitate the preparation and filing of the record of appeal. ELC NO. 1085 OF 2013 RULING 2

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3. The 2nd Defendant/Applicant deposed that the dispute concerns the ownership, occupation and control of L.R. No. 15207 and expressed apprehension that, unless execution is stayed, the 3rd and 4th Respondents may cancel the title he holds and register the property in the name of the Plaintiff. 4. He further contended that the property may thereafter be sold, transferred, charged or otherwise encumbered, thereby prejudicing him and rendering the intended appeal nugatory. He maintained that the intended appeal is arguable and has high prospects of success, that he is desirous of prosecuting it expeditiously, and that it would be just and fair to stay execution of the judgment and decree pending its hearing and determination. He added that no party will suffer prejudice if the orders sought are granted. 5. Vide grounds of opposition dated 7 th July, 2026, the Decree Holder/Plaintiff in ELC 1085 of 2013 stated thus: i. The Application lacks merit as the Applicant has failed to demonstrate substantial loss that will be suffered should the stay order not be granted. ii. The application though dated 16th May 2025 was filed on 29th October 2025. This is unexplained inordinate and inexcusable delay. 6. No other response was filed to the motion. None of the parties had filed submissions as at 17th August, 2026. Analysis and determination ELC NO. 1085 OF 2013 RULING 3

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7. Having considered the motion and response, the sole issue that arises for determination is whether the 2 nd Defendant/Applicant has satisfactorily demonstrated the conditions warranting the grant of stay of execution pending Appeal. 8. The present motion is said to be premised on Order 22 Rule 1 of the Civil Procedure Rules which speaks to modes of paying money under a decree. This provision is erroneous. The law with respect to stay of execution pending appeal is found under Order 42 Rule 6(1) and (2) of the Civil Procedure Rules, 2010 which provides 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 appeal case of 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 ELC NO. 1085 OF 2013 RULING 4

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preferred may apply to the appellate court to have such order set aside. (2) No order for stay of execution shall be made under sub rule (1) unless— (a) the court is satisfied that substantial loss may result to the applicant unless the order is made and that the application has been made without unreasonable delay; and (b) such security as the court orders for the due performance of such decree or order as may ultimately be binding on him has been given by the applicant.” 9. In Vishram Ravji Halai vs Thornton & Turpin Civil Application No. Nai. 15 of 1990 [1990] KLR 365, the Court of Appeal, discussing the High Court’s [read ELC’s] jurisdiction under this Order stated: “The Superior Court’s discretion to order a stay of execution of its order or decree is fettered by three conditions. Firstly, the applicant must establish a sufficient cause, secondly the court must be satisfied that substantial loss would ensue from a refusal to grant a stay and thirdly the applicant must furnish security. The application must of course be made without unreasonable delay.” ELC NO. 1085 OF 2013 RULING 5

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10. What arises from the foregoing is that the grant of orders of stay of execution is subject to the court’s discretion, the court in this respect being guided by the provisions of Order 42 Rule 6 of the Civil Procedure Rules. The question of how the court should exercise this discretion was extensively discussed by the Court of Appeal in Butt vs Rent Restriction Tribunal [1982] KLR 417 as follows: “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 ELC NO. 1085 OF 2013 requirements. RULING The special 6

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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.” 11. Further to the above, this court is now enjoined to give effect to the overriding objectives in the exercise of its powers as expressed in Section 3 of the Environment and Land Court Act and Section 1A of the Civil Procedure Act, to wit, the just, expeditious, proportionate and affordable resolution of disputes. 12. Briefly, the dispute herein revolved around parcel L.R. No. 15207, which was claimed by Intex Construction Limited, Supplies and Services Limited and the present Applicant Charles Wambugu. After considering their respective cases, the court found that Intex Construction Limited was the legitimate proprietor of the suit property. Consequently, the court directed that the titles held by the 1 st and 2nd Defendants be cancelled. Aggrieved by the decision, the 2nd Defendant/Applicant intends to appeal to the Court of Appeal. He therefore seeks a stay of execution of the ELC NO. 1085 OF 2013 RULING 7

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judgment and the resultant decree pending the hearing and determination of the intended appeal. 13. Turning to the requirements under Order 42 Rule 6(2) of the Civil Procedure Rules, the court will first consider whether sufficient cause has been demonstrated. The meaning and scope of sufficient cause were discussed in Antoine Ndiaye vs. African Virtual University [2015] eKLR, which persuasively stated: “The relief of stay of execution pending appeal is governed by Order Procedure Rules. 42 Rule 6 of the Civil The relief is discretionary although, as it has been said often, the discretion must be exercised judicially, that is to say, judiciously and upon defined principles of law; not capriciously or whimsically. Therefore, stay of execution should only be granted where sufficient cause has been shown by the Applicant. And in determining whether sufficient cause has been shown, the court should be guided by the three prerequisites provided under Order 42 Rule 6 of the Civil Procedure Rules, that: a) The application is brought without undue delay; b) The court is satisfied that substantial loss may result to the Applicant unless stay of execution is ordered; and ELC NO. 1085 OF 2013 RULING 8

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c) 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.” 14. Beginning with delay, the question of what amounts to unreasonable delay depends on the circumstances of each case. As observed in Jaber Mohsen Ali & another vs Priscillah Boit & another [2014] eKLR, even a one-day delay may be deemed unreasonable depending on the nature of the orders issued and the timelines set by the court. 15. In the present case, judgment was delivered on 20 th February 2025, and the 2nd Defendant filed a notice of appeal the following day, on 21st February 2025. Although the present motion is dated 16th May 2025, the record shows that it was not filed until the 3rd July, 2025, more than four months after the delivery of the judgment. The 2nd Defendant has offered no explanation for this delay. In the circumstances, the court finds that the motion was filed after unreasonable and inordinate delay. 16. Notwithstanding that finding, the completeness, consider the remaining court will, for requirements. Regarding substantial loss, the same was discussed in Rhoda Mukuma vs John Abuoga [1988] eKLR, as follows: “Granting a stay in the High Court is governed by Order XLI rule 4(2), the questions to be decided ELC NO. 1085 OF 2013 RULING 9

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being – (a) whether substantial loss may result unless the stay is granted and the application is made without delay; and (b) the applicant has given security. The discretion under rule 5(2)(b) is at large, but as was pointed out in the Kenya Shell case substantial loss is the cornerstone of both jurisdictions. That is what has to be prevented, because such loss would render the appeal nugatory…” 17. Similarly, the court in Century Oil Trading Company Ltd vs Kenya Shell Limited as cited in Muri Mwaniki & Wamiti Advocates vs Wings Engineering Services Limited [2020] eKLR, held: “The word 'substantial' cannot mean the ordinary loss to which every judgment debtor is necessarily subjected when he loses his case and is deprived of his property in consequence. That is an element which must occur in every case and since the Code expressly prohibits stay of execution as an ordinary rule it is clear the words 'substantial loss' must mean something in addition to all different from that.” 18. The courts have also held that substantive loss must be demonstrated. This position was articulated by the Court of ELC NO. 1085 OF 2013 RULING 10

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Appeal in Kenya Shell Limited vs Benjamin Karuga Kibiru & another [1986] eKLR thus: “It is usually a good rule to see if Order 41 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 its various forms is the cornerstone of both jurisdictions for granting stay.” 19. The court in James Wangalwa & Another vs Agnes Naliaka Cheseto [2012] eKLR held that the mere commencement or completion of execution does not, of itself, amount to substantial loss, as execution is a lawful process. An applicant must therefore demonstrate additional factors showing that execution would create a state of affairs that irreparably affects the core of the appeal and renders it nugatory. 20. The court is equally mindful of the need to strike a balance between the competing interests of the parties. While an applicant seeks to preserve the subject matter so that the appeal is not rendered nugatory, a respondent is entitled to the fruits of a valid judgment. As aptly stated in Machira t/a Machira & Co. Advocates vs East African Standard [2002] eKLR, the court must avoid unduly favoring one ELC NO. 1085 OF 2013 RULING 11

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party over the other and instead exercise its discretion in a manner that upholds the overriding objective of doing justice and preventing abuse of the court process. 21. In the present case, the 2nd Defendant contends that, unless a stay is granted, the 3rd and 4th Defendants will implement the judgment by cancelling his title and registering the suit property in the Plaintiff’s name. He maintains that such cancellation would deprive him of his proprietary interest and prejudice his right to challenge the judgment before the Court of Appeal. He further apprehends that the property may subsequently be sold, transferred, charged or otherwise encumbered, thereby rendering the intended appeal nugatory. The Plaintiff asserted that substantial loss had not been demonstrated. 22. Having considered the above arguments, it is noted that the cancellation of the 2nd Defendant’s title and registration of the property in the Plaintiff’s name are the direct consequences of the judgment and do not, without more, constitute substantial loss. Beyond expressing apprehension, the 2nd Defendant has not placed before the court any evidence demonstrating that the Plaintiff intends to dispose of or encumber the property. 23. The alleged risk is therefore speculative and does not demonstrate that execution will create an irreversible state of affairs or render the intended appeal nugatory. ELC NO. 1085 OF 2013 RULING 12

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24. Moving to the last issue regarding provision of security, its purpose was discussed by the court in Arun C Sharma vs Ashana Raikundalia t/a Rairundalia & Co. Advocates & 2 others [2014] eKLR, thus: “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. It is not to punish the judgment debtor… Civil process is quite different because in civil process the judgment is like a debt hence the applicants become and are judgment debtors in relation to the respondent. That is why any security given under Order 42 rule 6 of the Civil Procedure Rules acts as security for due performance of such decree or order as may ultimately be binding on the applicants. I presume the security must be one which can serve that purpose.” 25. In the present case, the 2nd Defendant has neither offered security nor expressed willingness to furnish such security as the court may order for the due performance of the decree. Although the nature and sufficiency of security ultimately fall within the court’s discretion, an applicant must demonstrate readiness to comply with any terms imposed. The 2 nd Defendant has therefore failed to satisfy this requirement. ELC NO. 1085 OF 2013 RULING 13

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26. Ultimately, the court finds that the 2 nd Defendant has not met the mandatory conditions prescribed under Order 42 Rule 6(2) of the Civil Procedure Rules. The present Motion is consequently dismissed, with costs to the Plaintiff in ELC 1085 of 2013/Decree Holder. Dated, signed and delivered virtually in Nairobi this 1 st day of October, 2026. O. A. Angote Judge In the presence of; Mr. Khazaka for Plaintiff Mr. Allan Kamau for Attorney General Mr. Mwangi for 1st Defendant. Court Assistant: Tracy ELC NO. 1085 OF 2013 RULING 14

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