Registered Trustees of Moi University Pension Scheme v Attorney General & 4 others

2. The application is premised on the 6 grounds on the face thereof and supported by the adavit sworn by one Mustafa Abdi Aman, the Director of the 4th defendant company and the Applicant herein. 3. He stated that the suit herein was heard and determined vide the judgment of this court (dierently constituted) issued on 30th April, 2026 by Hon. E. Obaga J. and outlined the nal orders issued thereto. It is his contention that aggrieved and dissatised by the said judgment issued on 30.04.2026, the 4th defendant has since lodged a Notice of Appeal of the intended appeal to the Court of Appeal. 4. It is his claim that it is necessary for the orders for stay of execution sought to be granted to preserve the subject matter and/or substratum of the appeal pending the hearing and determination of the appeal and to prevent the substantial loss and irreparable loss and damage that may be occasioned to the 4th defendant/applicant. 5. The applicant further avers that unless the orders sought herein are granted, the intended appeal to the Court of Appeal may be rendered nugatory since the plainti is likely to proceed with the execution of the decree and cause the title to the suit land to be cancelled and amalgamated with that of his own land. He maintained that the plainti/respondent will not suer any prejudice since it is in actual possession of the suit land. 6. The applicant also added that the present application had been led promptly and without delay. 7. In conclusion, the applicant urged the court to allow the application and to grant the orders of stay of execution as sought. 8. The application was opposed. The Plainti/ Respondent led a Replying Adavit dated on 5th July, 2026 and sworn by one Charles Sang’anyi Nyameino, a manager of the plainti 9. He dismissed the present application as being incompetent, frivolous, vexatious, an abuse of the court process and thus ought to be dismissed with costs. 10. It is his claim that the 4th defendant/applicant has not demonstrated any substantial loss that he is likely to suer in the event that the orders sought are not granted and the judgment and resultant decree of this court is executed. It is his contention that should the execution proceed and the appeal at the Court of Appeal is successful, the registration of the decree can be reversed to reect the decision of the Court of Appeal. 11. The plainti/respondent avers that the suit property is a prime property situated within the central business district within Eldoret Town worth over 70 million, which the plainti desires to develop with a view of generating income. Consequently, the eect of allowing the present application and granting the orders for stay of execution as sought herein would be to bar the plainti from developing the suit land and generating income, which he has estimated at Kshs. 100 million annually likely to be lost. 12. He further deponed that the suit property is an investment for the pensioners of Moi University, through which its members derive their income upon retirement and therefore the continued delay in the development of the property may jeopardize the welfare of the pensioners further. 13. In the alternative and without prejudice to the foregoing, the plainti/respondent did contend that in the event that the court is inclined to allow the application and grant the orders of stay of execution sought, then the same should be granted on the condition that the 4th defendant/applicant deposits a sum of Kshs. 15million in a joint account held by the advocates as security for costs for the due performance of the decree. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/6108/eng@2026-10-01 2

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14. The Application was canvassed by way of written submissions. The 4th defendant/applicant led its submissions dated 17th August, 2026 while the plainti/respondent led its submissions dated 28th September, 2026 together with authorities, which I have read and considered. Analysis and Determination: 15. Having read and carefully considered the facts and grounds in the present application, the supporting adavit and the replying adavit thereto as well as the rival submissions, this court identies the following issues for determination: i. Whether an Order for Stay of Execution can issue against judgment issued on 30th April, 2026 and the resultant decree. ii. Who shall bear the costs of the present application. Whether an Order for Stay of Execution can issue against judgment issued on 30th April, 2026 and the resultant decree; 16. It is settled law that no appeal shall operate as an automatic stay of execution. The purpose of an order of stay of execution is to preserve the substratum of appeal and ensure that the appeal is not rendered nugatory. 17. Order 42 Rule 6(2) of the Civil Procedure Rules, 2010 outlines the grounds governing the grant of an order for stay of execution and provides as follows: (2) 18. 19. No order for stay of execution shall be made under sub- rule (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. From the above legal provision, the three conditions to be met by an applicant seeking an order of stay of execution thus include:i. The Court is satised that substantial loss may result to the Applicant unless an order for stay of execution is ordered; ii. The application is brought without undue delay and iii. Security for costs as the court orders for the due performance of such decree or order is provided. The onus of demonstrating and proving the said requirements on a balance of probabilities lies on the applicant in compliance with the provisions of sections 107,108,109 and 110 of the Evidence Act. I will now proceed to determine the each of the above conditions as hereunder. Substantial Loss: 20. Substantial loss has been held to mean any loss, great or small, that is of real worth or value and not mere nominal loss. It has been held that it is not sucient to merely state that substantial loss may be occasioned without demonstrating the same. (See New Stanley Hotel Ltd –vs- Arcade Tobacconist (1980) KLR 757). https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/6108/eng@2026-10-01 3

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21. What amounts to substantial loss was expressed by the Court of Appeal in the case of Mukuma vs Abuoga (1988) KLR 645 where their Lordships stated that; “ Substantial loss is what has to be prevented by preserving the status quo because such loss would render the Appeal nugatory.” 22. In demonstrating the substantial loss that the 4th defendant/applicant is likely to suer unless the orders for stay of execution sought are granted, the applicant stated that the plainti/respondent is likely to proceed with the execution of the decree and have the register of the suit property rectied, the applicant’s title in respect to the parcel of land known as Eldoret Municipality Block 7/320 cancelled and reverted to the parcel of land known as Eldoret Municipality Block 7/304. 23. It is further his claim that should execution proceed, the appeal to the Court of Appeal will be rendered nugatory and a mere academic exercise since the subject matter of the appeal will have been lost. The applicant therefore contends that there is need to preserve the subject matter and the substratum of the appeal. 24. The plainti/respondent on the other hand was of the view that the applicant had not demonstrated the substantial loss and/or the nature of loss that it is likely to suer if the application is not allowed. The respondent did further claim that in the event that execution proceeds and the applicant’s appeal in the Court of Appeal is successful, the cancellation and subsequent registration in favor of the plainti as per the decree can be reversed. 25. It is further the plainti/respondent’s contention that if the orders of stay are granted, the same would bar the plainti from developing the suit property and generating income. 26. This court has taken the liberty to carefully peruse the judgment of this court issued on 30.04.2026 by Hon. E. Obaga J. and I wish to restate the nal disposition in part as hereunder:“ 86. From the above analysis, I nd that the plainti has proved its case against the 1st to 4th defendants. Consequently, I allow the plainti’s claim against the 1st to 4th defendants as follows:1. ........ 2. ..... 3. A declaration that the creation of parcel Eldoret Municipality Block 7/320 which was granted to the 4th defendant was done through fraud, misrepresentation, illegality, unprocedurally and/ or through a corrupt scheme. 4. An injunction do issue restraining the 4th defendant whether by itself, successors or assigns or anyone of them from trespassing, disposing of, leasing, charging or dealing with the portion of land that has been renamed Eldoret Municipality Block 7/320 5. The 3rd defendant is hereby ordered to rectify the register by cancelling the title to Eldoret Municipality Block 7/320 and reverting back to the plainti so as to form an undivided parcel known as Eldoret Municipality Block 7/304 measuring 0.36 hectares. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/6108/eng@2026-10-01 4

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6. Costs of the suit...” 27. Thus, in determining whether the applicant has suciently demonstrated the substantial loss it is likely to suer unless the orders for stay of execution sought are granted, this court has taken into account the rival arguments as well as the eect of the judgment of the court issued on 30.04.2026 and in particular Orders Nos. (3), (4) and (5) as outlined hereinabove. 28. Order No. 5 in the nal disposition of the judgment issued and dated 30.04.2026 is directed to the 3rd defendant (the County Land Registrar, Uasin Gishu County), to rectify the register by cancelling the title of the parcel of land known as Eldoret Municipality Block 7/320, granted to the 4th defendant/ applicant herein, and for the same to revert back to the plainti and to form part of the undivided parcel known as Eldoret Municipality Block 7/304 belonging to the plainti. 29. The eect of the said orders in my considered view if the orders sought herein are not granted and execution of the decree is allowed to proceed would be to cancel the 4th defendant/applicant’s title, rectify the register and to revert the same to the plainti. Subsequently, the subject matter and/or substratum of the applicant’s appeal in respect to the parcel of land known as Eldoret Municipality/ Block 7/320 would cease to exist and the appeal will therefore be rendered nugatory. 30. Further, the respondent would be at liberty to deal with the suit land as it pleases upon the cancellation of the title and the same reverting to plainti/respondent, including substantively developing the same as averred in their replying adavit and which in turn would result in physically altering the status of the subject land pending the hearing and determination of the appeal by the Court of Appeal. 31. In view of the foregoing, it is the nding of this court that the 4th defendant/applicant has satisfactorily demonstrated the substantial loss that it is likely to suer unless the orders for stay of execution sought are granted to the required standard. Unreasonable delay; 32. The second element is whether the present application was led timeously and without undue delay. The judgment in question was delivered on the 30th April, 2026 while the present application was led on the 14th May, 2026, that is, within 14 days from the date of the delivery of the judgment. 33. This court therefore nds that the present application was led promptly within 14 days, and there was no inordinate delay. The same was led timeously. Security for Costs; 34. The nal element is on the deposit of security for costs as the court may direct. The court in the case of Arun C. Sharma Vs Ashana Raikundalia T/A Raikundalia & Co. Advocates and 2 others (2014) eKLR, held that: “ The purpose of the security under Order 42 is to guarantee 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 dierent because in civil process the judgment is like a debt hence the applicant 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 a security for the 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.” https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/6108/eng@2026-10-01 5

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35. The 4th defendant/applicant in its supporting adavit has not expressed its willingness and readiness to deposit the security for costs for the due performance of the decree as the court may direct. 36. In their submissions, the applicant merely stated that the court may direct parties to deposit security for costs for the due performance of the decree. It was not however submitted whether they are ready and willing to deposit the same. 37. The respondents on the other hand deponed that should the court be inclined to allow the present application, then the court should direct the 4th defendant/applicant to deposit Kenya Shillings Fifteen Million (Kshs. 15,000,000/=) together with the assessed costs in a Joint Bank Account held in the names of the Advocates on record, as security for costs for the due performance of the decree. 38. In view of the foregoing, I will exercise my discretion in favour of 4th defendant/applicant and allow the application for stay but on condition that they provide security as will be directed at the end of this ruling. However, the Kshs. 15 million proposed by the plainti/respondent is in my considered view exorbitant and astronomical in the circumstances. 39. The upshot of the above is that the 4th defendant/Applicant has suciently met the threshold provided under the Civil Procedure Rules to warrant the grant of the order of stay of execution sought. Disposition: 40. 41. Consequently, I accordingly nd that the Notice of Motion Applications dated 14th May,2025 is merited and is hereby allowed on the following terms: a. An order of stay of execution be and is hereby issued staying the judgment delivered on 30th April, 2026 and the subsequent decree pending the hearing and determination of the appeal to the Court of Appeal. b. The 4th Defendant/Applicant be and is hereby directed to deposit Kshs. 5,000,000/= in court or in a Joint Bank Account held in the names of the Advocates for the 4th Defendant and for the Plainti as security for Costs for the due performance of the decree within 30 days from the date of this Ruling. c. Failure by the applicant to comply with orders (b) hereinabove, Order (a) hereinabove shall automatically lapse. d. Each party to bear their own costs of the Application. It is so ordered. DATED, SIGNED AND DELIVERED AT ELDORET THIS 1ST DAY OF OCTOBER, 2026. C. K. YANO JUDGE Ruling delivered in the virtual presence of: Mr. Korir for Plainti/D/H. Mr. Keter for 4th Defendant/Applicant. No appearance for 1st, 2nd & 3rd Defendants. Court Assistant – Laban https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/6108/eng@2026-10-01 6

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