Mercy Kanyi v Francis Ngugi Gitau

Limited and had remained in occupation for more than twelve years. 4. By judgment delivered on 12.07.2024, Hon. Joseph Were, Chief Magistrate, dismissed the Applicant’s counterclaim, declared the Respondent the bona fide proprietor and issued a permanent injunction restraining the Applicant from trespassing upon or interfering with the Respondent’s ownership and quiet possession. Significantly, the subordinate court did not expressly order the Applicant’s eviction or direct her to vacate the property. 5. The Applicant appealed. By judgment delivered on 22.01.2026, this Court dismissed the appeal with costs. The Court upheld the Respondent’s title and held, inter alia, that the subordinate court lacked jurisdiction to determine the Applicant’s claim founded upon adverse possession. The dispositive order was simply that the appeal lacked merit hence the same was dismissed with costs. B APPLICATION FOR STAY PENDING APPEAL 6. The Appellant filed a Motion was dated 06.02.2026 seeking a temporary stay of the judgment delivered on 22.01.2026 and, ultimately, stay pending determination of the intended appeal to the Court of Appeal. 7. In her Supporting Affidavit, the Appellant deposed that the nature of the subordinate court’s order exposed her to eviction from premises upon which she constructed her dwelling house; that THIKA ELC CASE NO. E078 OF 2024(RULING) Page 2

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unnamed persons had visited the premises and warned her of imminent eviction; and that execution would occasion substantial loss and render the intended appeal nugatory. 8. The Respondent opposed the Motion. He contended principally that the appellate judgment was a negative order incapable of stay; substantial loss has not been proved; the intended appeal had no realistic prospects of success; and that the Applicant had not furnished security. C. 9. ISSUES FOR CONSIDERATION The application raises the following 4 questions for determination: a. Whether there is an executable decree or order capable of being stayed; b. Whether the Appellant has demonstrated substantial loss under Order 42 Rule 6(2); c. Whether the requirement regarding security has been satisfied; d. Whether the the Appellant is entitled to the order of stay sought. B. APPLICABLE LAW 10. Order 42 Rule 6(1) expressly provides that neither an appeal nor a second appeal operates as an automatic stay of execution. However, the court appealed from may, for sufficient cause, grant stay. Under Rule 6(4), an appeal to the Court of Appeal is THIKA ELC CASE NO. E078 OF 2024(RULING) Page 3

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deemed filed once the requisite Notice of Appeal has been given. The Notice dated 27.01.2026 therefore provides a proper procedural foundation for an application for stay. This construction was recently adopted in Muriuki v Muthama [2026] KEELC 636 (KLR). 11. There are 3 substantive requirements are prescribed by Order 42 Rule 6(2); the Court must be satisfied that substantial loss may result unless stay is granted; the application must have been made without unreasonable dela; and security for due performance must be provided as the Court may order. 12. The Court of Appeal in Vishram Ravji Halai v Thornton & Turpin (1963) Ltd [1990] KLR 365 described the superior court’s discretion under the equivalent provision as fettered by the requirements of sufficient cause, substantial loss, security and absence of unreasonable delay. 13. More recently, in Afyare Enterprises Company Ltd v Nyaribo t/a I.N. Nyaribo & Co. Advocates [2025] KECA 1819 (KLR), the Court of Appeal overturned a stay which had been granted notwithstanding a finding that substantial loss had not been proved and security had not been offered. The Court emphasised that the mandatory requirements of Order 42 Rule 6 cannot simply be circumvented by invoking the interests of justice. 14. The jurisdiction should also be distinguished from the original jurisdiction of the Court of Appeal under Rule 5(2)(b). The twin THIKA ELC CASE NO. E078 OF 2024(RULING) Page 4

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requirements of an arguable appeal and nugatory effect govern applications before the Court of Appeal, not the statutory test being exercised here. In Nduati v Nduati [2026] KECA 251 (KLR), the Court of Appeal specifically cautioned that the Civil Procedure Act and Rules do not govern applications before it. 15. It follows that the Respondent’s invitation to assess whether the proposed second appeal has realistic prospects of success should not be treated as an additional mandatory limb of Order 42 Rule 6. The Court ought not prejudge the intended appeal against its own judgment. C. ANALYSIS AND DETERMINATION Whether there is an executable decree or order capable of being stayed 16. The judgment delivered on 22.01.2026 merely dismissed the appeal with costs. It did not direct the Appellant to vacate the property, demolish structures, surrender possession or undertake any positive act. On its face, it was therefore a negative order. 17. The established principle in Western College of Arts and Applied Sciences v Oranga & Others [1976] KLR 63 and Kanwal Sarjit Singh Dhiman v Keshavji Jivraj Shah [2008] KECA 346 (KLR) is that an order merely dismissing proceedings, without requiring a party to do anything or refrain from doing THIKA ELC CASE NO. E078 OF 2024(RULING) Page 5

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anything, is incapable of execution, save in relation to costs, and therefore ordinarily incapable of stay. 18. That principle remains current. In Nduati v Nduati [2026] KECA 251 (KLR) which also concerned a land dispute following dismissal of an appeal by the ELC, the Court of Appeal reiterated that the dismissal was a negative order and incapable of execution. 19. Nevertheless, that should not be the only basis for disposing of the present Application. Dismissal of the first appeal left the subordinate court decree intact. The decree contained a permanent prohibitory injunction and therefore continues to regulate the parties’ conduct in relation to the property. 20. The Appellant’s greater difficulty is that she describes the subordinate court’s decision as an eviction order, yet no express eviction order appears in the appellate judgment and none has been annexed to the application. 21. The recommended approach is therefore to hold that the judgment expressly targeted by prayer 2 is negative, while proceeding, out of caution, to determine whether the statutory requirements for stay would in any event have been satisfied if prayer 3 were construed broadly as seeking protection against enforcement of the operative decree. whether the Applicant has demonstrated substantial loss under Order 42 Rule 6(2); THIKA ELC CASE NO. E078 OF 2024(RULING) Page 6

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22. In Kenya Shell Limited v Benjamin Karuga Kibiru & Another [1986] KLR 410, substantial loss was described as the cornerstone of the jurisdiction. Execution, or the possibility of execution, is not by itself sufficient. The Applicant must identify the consequence which would substantially impair the appeal if stay is refused. The principle continues to be applied in recent decisions. 23. The Applicant has some evidential foundation for asserting possession. The judgment of 22.01.2026 records both the construction of a permanent structure and that the Applicant was in possession when the Respondent processed his title. 24. What has not been established is that the structure is presently her dwelling or sole residence, or that an authorised process for her forcible removal is underway. Her allegation that strangers visited the property and warned her of imminent eviction gives no names, dates, identity, authority or connection to the Respondent or any court process. No eviction notice, warrant, application for execution, notice from an auctioneer or bailiff, or other enforcement document was exhibited. 25. This distinction is important. The Court should not adopt the broader proposition advanced in some decisions that dispossession from land can invariably be compensated by damages. Removal from an occupied dwelling may, depending on the evidence, constitute THIKA ELC CASE NO. E078 OF 2024(RULING) Page 7

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substantial loss which may be difficult to reverse. The failure here is not that such loss is legally incapable of amounting to substantial loss; it is that the Applicant has not adequately demonstrated that such loss is presently likely to result from execution of an identified order. 26. On the material placed before the Court, the alleged imminent eviction therefore remains insufficiently substantiated. whether the requirement regarding security has been satisfied The Applicant neither offered a specific form of security nor expressed willingness in her affidavit to furnish security. 27. In view of the court’s finding that the Applicant has failed to demonstrate substantial loss within the meaning of Order 42 Rule 6(2)(b) it is not necessary to consider and determine the aspect of provision of security for due performance of the decree. The provision of security by itself would not serve any useful purpose if the Applicant has not demonstrated substantial loss. The Applicant’s application is for dismissal anyway. D. CONCLUSION AND DISPOSAL ORDER 28. Although the Applicant acted promptly by lodging a Notice of Appeal and the application for stay pending appeal, he has failed to demonstrate the risk of substantial loss. The judgment directly sought to be stayed merely dismissed the appeal with costs and is substantially negative in nature. THIKA ELC CASE NO. E078 OF 2024(RULING) Page 8

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29. As a result, the court finds no merit in the Applicant’s application for stay pending appeal. Consequently, the Notice of Motion dated 06.02.2026 is hereby dismissed with costs. For the avoidance of doubt, any interim orders previously granted pursuant to that Motion are hereby discharged. Orders accordingly. DATED, SIGNED AND DELIVERED VIRTUALLY AT THIKA THIS 1 ST DAY OF OCTOBER 2026 Y. M. ANGIMA JUDGE In the presence of: Mr Gatumuta for Applicant Ms Wachira for Respondent Court Assistant: Hinga THIKA ELC CASE NO. E078 OF 2024(RULING) Page 9

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