Ashwyn Said Seif Al-Busaidy & 2 others v Josphat Kalanga Bukhala & 6 others

BUKHALA ..................................... 2ND DEFENDANT/APPLICANT SILVERIUS ISANYA BUKHALA ..................................... 3RD DEFENDANT/APPLICANT RONI VICTOR BUKHALA ............. 4TH DEFENDANT/APPLICANT SCHOLASTICA KHAMETE BUKHALA ..................................... 5TH DEFENDANT/APPLICANT ROSETELLER KHABUKWI BUKHALA ..................................... 6TH DEFENDANT/APPLICANT ALL THOSE UNKNOWN PERSONS OCCUPYING TITLE NOS. MSA/BLOCK XX/200 & MSA /BLOCK XX/201 …………………………7TH DEFENDANT/APPLICANT RULING: ELC/E022/2024 Page 2 of 34

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RULING A. BACKGROUND 1. Litigation, if it is to mean anything, must move towards an end. Yet the end of a suit is not always the end of contest. Whereas a judgment is meant to end a controversy by closing the door on merit, it sometimes begins a procession of new ones on execution, stay, joinder and the old, ceaseless complaint of a party who says he was never heard. Nevertheless, finality is not a blindfold. A decree must not be executed so swiftly that an appeal becomes an empty ritual; nor may finality be cast aside whenever a person, standing in the shadow of a litigant, says that the judgment will touch him. The two motions, subject of this Ruling, arise in that afterglow of judgment and lie at that narrow crossing between the right of appeal and the fruits of judgment, and, between the right to be heard and the public interest that litigation must, one day, come to rest. 2. By a Judgment delivered on 19th March 2026, this Court, differently constituted, determined the dispute between the RULING: ELC/E022/2024 Page 3 of 34

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Trustees of Seif Bin Salim Trust and the named Defendants over Title Nos. Mombasa/Block XX/200 and Mombasa/Block XX/201. The Court found, among other things, that the 1st to 6th Defendants had breached the lease and indenture dated 30th June 1947; that forfeiture had been lawfully invoked; that the Plaintiffs were entitled to vacant possession; and that the counterclaim by the 1st to 6th Defendants failed. Relevant is that the Court expressly declined the claim against the 7th Defendant, described in the pleadings as “all those unknown persons occupying” the two properties. 3. The first post-judgment application is the Notice of Motion dated 31st March 2026, supported by the affidavit of Josphat Kalanga Bukhala sworn on the same date. The Applicants seek the following orders: (a) Spent. (b) Spent. RULING: ELC/E022/2024 Page 4 of 34

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(c) That the Court issue a stay of execution pending the hearing and determination of the intended appeal. (d) That the Court set aside the Judgment delivered on 19th March 2026 pending the hearing and determination of the appeal. (e) 4. That costs be provided for. The deponent states that the Defendants are dissatisfied with the Judgment, filed a Notice of Appeal on 23rd March 2026, and face imminent execution, eviction and homelessness. He maintains that the intended appeal raises arguable points and will be rendered nugatory unless stay of execution issues. 5. The second application is the Notice of Motion dated 29th April 2026 brought by three persons, namely Edwin Ndume Mungah, Pamela Amolo Opiyo and Mary Waleghwa Gona, who describe themselves as business persons and tenants occupying portions of the suit properties. They seek the following orders: (a) Spent. RULING: ELC/E022/2024 Page 5 of 34

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(b) Spent. (c) That leave be granted to join Edwin Ndume Mungah, Pamela Amolo Opiyo and Mary Waleghwa Gona as the 9th, 10th and 11th Defendants respectively. (d) That the proceedings, Judgment dated 19th March 2026 and the resultant decree be varied, reviewed and set aside ex debito justitiae as a matter of right, and that the matter be heard afresh. (e) 6. That costs be provided for. The application is supported by Mary Waleghwa Gona’s affidavit sworn on 29th April 2026 and supplementary affidavit sworn on 11th September 2026. The Applicants say that they carry on business on Title Nos. Mombasa/Block XX/200 and Mombasa/Block XX/201; that they fall within the anonymous description of the 7th Defendant; that they were never personally identified, joined or served; and that the Plaintiffs’ advocates’ Notice dated 25th March 2026 threatens their forcible eviction under the Judgment. They RULING: ELC/E022/2024 Page 6 of 34

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deny that any of the affidavits of service identifies them or Beula Ventures, contend that their derivative tenancies do not extinguish their right to be heard, and say that substantial capital, livelihood and goodwill are exposed. 7. The Plaintiffs opposed the first motion through Saif Said Saif Al-Busaidy’s replying affidavit sworn on 22nd April 2026. They say the statutory threshold for stay under Order 42 Rule 6 has not been met as there’s no substantial loss that has been demonstrated, no security has been offered, and the description of residential hardship conceals the commercial character of the premises and the income earned from multiple subtenants. If stay is granted, they ask that it be conditioned upon security and preservation of all rent and occupation income. 8. The Plaintiffs opposed the second motion through the replying affidavit sworn on 23rd August 2026 by the same deponent and Grounds of Opposition of the same date. Their answer is that the Judgment was entered against the 1st to 6th Defendants only; that the claim against the 7th Defendant was RULING: ELC/E022/2024 Page 7 of 34

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expressly declined; that the proposed parties derive possession from the unsuccessful Defendants and have shown no independent title from the Plaintiffs; that the present applicants were repeatedly served with pleadings and notices through the business premises they occupied; and that the motion is, in truth, an impermissible attempt to reopen a concluded trial that is already the subject of Court of Appeal Civil Appeal No. E087 of 2026 . B. THE PARTIES’ POSITIONS The Motion dated 31st March 2026 9. The 1st to 7th Defendants/Applicants, dissatisfied with the Judgment of 19th March 2026 and having filed a notice of appeal dated 23rd March 2026, contend that the application was prompt, execution is imminent, eviction will occasion substantial loss, and the appeal presents triable questions touching on limitation, authority to sue and the merits of forfeiture. They assert that unless stay is granted the appeal will be rendered nugatory and they will suffer substantial and irreparable loss. The Plaintiffs answer that an appeal does not RULING: ELC/E022/2024 Page 8 of 34

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itself stay a decree, that eviction pursuant to a regular judgment is not substantial loss without more, and that a successful litigant should not be kept from the fruits of judgment while the Applicants continue to exploit the properties commercially. 8. The Plaintiffs/Respondents to the Motion contend that the Applicants have not furnished or even offered security for due performance of the decree; have failed to demonstrate substantial loss in the legal sense, since eviction following a lawful judgment does not of itself amount to substantial loss; and have approached the Court without full candour by portraying the dispute as one of residential hardship when the suit properties are commercial premises let out to numerous subtenants, including Amkay Stationers, Kay Tech Solutions, Mayqueen Human Hair & Cosmetics and other named businesses. They further maintain that the prayer seeking to set aside the Judgment within a stay application is legally untenable, and that the draft memorandum of appeal merely re-argues issues already determined at trial. RULING: ELC/E022/2024 Page 9 of 34

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The Motion dated 29th April 2026 10. The proposed parties (9th, 10th and 11th defendants) contend that they are actual tenants carrying on business upon the suit premises, that they fall within the category previously described in the Further Amended Plaint dated 5th November 2024 as unknown occupants, and that although the decree now threatens their eviction, they were never served with summons, pleadings or hearing notices. They maintain that, having been sued anonymously as the 7th Defendant, they are bound by a Judgment delivered without ever being given an opportunity to be heard. They invoke Articles 25(c) and 50(1) of the Constitution and the rule of audi alteram partem. They insist that the issue is not merely commercial inconvenience: The Plaintiffs cannot treat them as bound for eviction while denying them standing to question the Judgment. They dispute service, pointing out that the RULING: ELC/E022/2024 Page 10 of 34

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returns name neither them nor their business, and distinguish their complaint from the appeal by the 1st to 6th Defendants. 11. The Plaintiffs’ response to the Motion is twofold. First, they say the central premise of the application is false because no adverse Judgment was entered against the 7th Defendant at all; the dispositive part of the Judgment expressly states that “Judgment is hereby entered for the plaintiffs against the 1st – 6th defendants in the following terms only” and that “the plaintiffs’ claim against the 7th defendant is hereby declined.” Second, and in any event, they say the applicants were repeatedly served through their business premises with the originating pleadings, summons, mention notices and hearing notices by Stanley Aura, a licensed process server, and accepted service on each occasion, only declining to sign the process server’s principal copy after being cautioned by their landlords not to sign legal documents relating to the suit. They rely on affidavits of service dated 19th April 2024, 18th June 2024, 23rd January 2025 and 14th July 2025, which state that process was delivered to businesses and occupants RULING: ELC/E022/2024 Page 11 of 34

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at the premises. They add that the 1st to 6th Defendants have already instituted Court of Appeal Civil Appeal No. E087 of 2026, evidenced by Judiciary receipts dated 21st May 2026, so that the present motion merely multiplies proceedings and invites the Court to reopen what has already moved to the appellate plane. Their case is that the proposed parties had notice, chose not to participate, and now seek to reopen a concluded trial through rights derived from the very Defendants who were heard and lost. C. DIRECTIONS AND RECORD 12. The applications were canvassed by written submissions. The Court has considered both Notices of Motion, all supporting, replying and Grounds of supplementary Opposition, affidavits, Notice of the Appeal, annexures, the parties’ submissions and lists of authorities. The supplementary affidavit of 11th September 2026 and supplementary submissions have also been taken into account. RULING: ELC/E022/2024 Page 12 of 34

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D. ISSUES FOR DETERMINATION 13. From the totality of the record, the following issues arise for determination: (a) Whether the motion dated 31 st March 2026 satisfies the threshold for stay of execution pending appeal, and whether the Judgment may be set aside pending appeal. (b) Whether the Applicants in the motion dated 29 th April 2026 should be joined after Judgment and whether the proceedings, Judgment and decree should be set aside ex debito justitiae. (c) E. What orders should issue, including as to costs. ANALYSIS AND DETERMINATION Whether the motion dated 31st March 2026 meets the threshold for stay pending appeal RULING: ELC/E022/2024 Page 13 of 34

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12. The jurisdiction of this Court to grant stay of execution pending appeal is not in doubt. It is donated principally by Order 42 Rule 6 of the Civil Procedure Rules. But the jurisdiction is neither automatic nor sentimental. A court does not grant stay merely because an appeal has been signalled or because eviction is feared. The applicant must show substantial loss, must approach the court without undue delay, and must furnish such security as the court may order for the due performance of the decree. 13. That understanding has been consistently stated in our courts. In Elena Doudoladova Korir v Kenyatta University [2014] KEIC 124 (KLR), the Court held that the conditions for stay include sufficient cause, proof that substantial loss may result if stay is refused, furnishing of security, and promptness in bringing the application. Those requirements are not ornamental. They are the practical safeguards by which the court balances the undoubted right of appeal against the equally important right of a successful litigant to enjoy the fruits of judgment. RULING: ELC/E022/2024 Page 14 of 34

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14. Applying those principles here, I am satisfied that the application was brought without undue delay. Judgment was delivered on 19th March 2026, a notice of appeal was filed on 23rd March 2026, and the application for stay followed on 31st March 2026. On that score alone, no blame can fairly be laid at the Applicants’ door. 15. On substantial loss, however, the position is more nuanced than the Applicants present it. They urge that eviction will render them homeless and cause hardship. Yet the Plaintiffs’ replying affidavit demonstrates, and indeed the earlier Judgment had already found, that the premises are commercial in nature and have been sublet to numerous business occupants, among them Amkay Stationers, Kay Tech Solutions, Mayqueen Human Hair & Cosmetics, Bukh’s Beauty Salon and several others. The loss asserted, therefore, is not simply the loss of shelter; it is also the loss of control and benefit of commercial premises from which income has been, or may be, derived. RULING: ELC/E022/2024 Page 15 of 34

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16. Still, in land matters, and especially in matters involving possession, the court must be slow to ignore the fact that once persons restoration are may removed become from difficult, premises costly the and, act in of some instances, pyrrhic. An appeal, if eventually successful, ought not be turned into a museum piece admired for its correctness but useless in consequence. I am therefore prepared to hold that the Applicants have shown a risk of substantial loss if execution proceeds immediately and unconditionally. 17. That finding does not confer an unconditional stay. The successful Plaintiffs have a judgment and are entitled to its benefit. Justice must hold the ring between the parties: preserving the subject matter without converting an appeal into a licence for the judgment-debtors to enjoy the property and its income at no price. 17. That, however, is not the end of the inquiry. Security is the price which the law often exacts from a party seeking to hold in suspense the enjoyment of a decree. Here, the notice of RULING: ELC/E022/2024 Page 16 of 34

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motion and supporting affidavit are noticeably silent on any concrete proposal for security. The Applicants do not tender a deposit, a bank guarantee, or any structured proposal for preservation of the value of the decree. That omission is serious. A party seeking equitable indulgence cannot ask the Court to hold the decree at bay while offering the successful litigant nothing by way of protection. 18. The Court nevertheless retains discretion under Order 42 Rule 6(2)(b) to prescribe security that is just in the circumstances. In Gebre v Nairobi City County & 4 others (Environment and Land Case 350 of 2014) [2026] KEELC 502 (KLR), the ELC granted conditional stay and directed a monetary deposit, with automatic lapse upon default. The governing idea is proportionality: security must protect the decree without stifling the appeal. The security should not be punitive or arbitrary; it must reasonably protect the Respondents against the prejudice occasioned by a stay while preserving the Applicants’ right of appeal. The evidence shows continued RULING: ELC/E022/2024 commercial occupation and income- Page 17 of 34

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generating activity, but no rent schedules, tenancy schedules, accounts, valuation material or quantified income have been disclosed. In those circumstances, the just course is a structured security regime: an immediate, moderate lumpsum deposit to secure the decree, supplemented by full disclosure and preservation of the income derived from the suit premises. 19. The Plaintiffs themselves proposed that any stay should be conditional upon appropriate security and the preservation of rents, licence fees, occupation income and other monies through a joint interest-earning account in the names of counsel for both sides. That proposal strikes me as sensible and proportionate. It recognises two truths at once: that an appeal ought not be stifled by precipitate execution, and that a successful party should not be left exposed while the other side continues to enjoy the economic utility of the property. 19. Here, the evidence establishes continued commercial occupation but supplies no complete rent roll, accounts or RULING: ELC/E022/2024 Page 18 of 34

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valuation from which the income can be quantified. A fixed deposit coupled with disclosure and preservation of ongoing income is therefore the fairest order. It answers both sides: possession is preserved for the appeal, while the Plaintiffs are protected against the economic cost of delay. 20. Prayer (d), which asks this Court to set aside its Judgment “pending appeal”, stands on a different footing. Stay suspends enforcement, whereas setting aside destroys or reopens the decision. A stay application is not a disguised review and cannot be used as a procedural contraption for undoing a final judgment while, at the same time, pursuing an appeal against it. An applicant may pursue appeal or invoke the distinct and narrow jurisdiction of review where the law permits, but a stay application cannot be used as a side door through which the Court sits on appeal over its own Judgment. The two remedies pull in different directions and cannot coexist in one prayer. The Court declines that limb of the motion and the prayer therefore fails. RULING: ELC/E022/2024 Page 19 of 34

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Issue 2: Joinder and setting aside 21. The second motion dated 29th April 2026 is framed with forensic energy and constitutional language and raises a harder question because it invokes the oldest and powerful promise of justice that no person should be condemned unheard. But the promise is exact, not boundless. That principle remains central to adjudication. But like all good principles, it must be applied to the facts proved, not the facts merely asserted. It protects a person against an adverse adjudication made without a fair opportunity to answer; it does not automatically entitle every person practically affected by execution to reopen a judgment between others. 22. The starting point is finality. The first and most striking difficulty facing the applicants lies in the Judgment itself. The dispositive part of the Judgment, as placed before this Court, expressly entered judgment for the Plaintiffs against the 1st to 6th Defendants only, and then expressly stated that the RULING: ELC/E022/2024 Page 20 of 34

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Plaintiffs’ claim against the 7th Defendant was declined. If that be so, and I find that it is, then the foundation upon which the applicants invite this Court to set aside an adverse judgment entered against them begins to crumble at once. One cannot set aside ex debito justitiae a judgment that was never entered against him in the form alleged. 24. The applicants say, nonetheless, that although judgment was not expressly entered against the 7th Defendant, the decree for vacant possession and the threatened eviction affects them directly as business occupants and tenants, and therefore the Court should join them and reopen the proceedings. I accept the first half of that proposition but not the second. It is true that they may be affected in a practical and commercial sense because their occupation is said to derive from the 1st to 6th Defendants. But practical effect alone is not a charter for reopening a concluded suit, particularly where their asserted rights are derivative, arising from tenancy agreements executed with the 1st RULING: ELC/E022/2024 Page 21 of 34 to 6th

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Defendants, and not shown to arise from any lease, licence or consent granted by the Plaintiffs themselves. 25. In Mitu-Bell Welfare Society v Kenya Airports Authority & 2 others; Initiative for Strategic Litigation in Africa (Amicus Curiae) (Petition 3 of 2018) [2021] KESC 34 (KLR), the Supreme Court held that, subject to limited exceptions, delivery of judgment renders a trial court functus officio and that pleadings or affidavits cannot ordinarily be introduced after judgment to reopen concluded issues. The doctrine is not technical severity. It is the law’s assurance that judicial power, once finally exercised, will not be exercised over and over again. 23. Post-judgment joinder is therefore exceptional. In Merry Beach Limited v Attorney General & 18 others [2018] eKLR, the Court of Appeal set aside an order which had joined a party after judgment and reopened the suit. More recently, in County Government of Narok v Ntutu & another; Kilerai (Applicant) (Civil Appeal (Application) E052 of 2025) [2026] KECA 6 (KLR), the Court of Appeal RULING: ELC/E022/2024 Page 22 of 34

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rejected an attempt by a person asserting public and community interests to join concluded appellate proceedings and introduce new evidence. The thread running through those decisions is that joinder is a means of resolving a live controversy; it is not ordinarily a resurrection of a controversy already decided. 24. There are exceptional cases. Ethics and Anti-Corruption Commission v Kenya Broadcasting Corporation & 3 others (Civil Application E060 of 2023) [2025] KECA 873 (KLR) shows their quality. There the Court of Appeal set aside its judgment, joined the EACC, and remitted the matter to the ELC to receive a defined investigation report concerning alleged unlawful alienation of public land. The power was exercised to meet a specific public-interest evidentiary failure, and the additional evidence was strictly confined. That decision confirms the exception; it does not abolish the rule. 25. An ELC confronted with an application for post-judgment joinder must thus ask: Is there an adverse order against the RULING: ELC/E022/2024 Page 23 of 34

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proposed party? Is the asserted interest direct and independent, or derivative from a litigant already heard? Was there genuinely no notice or opportunity to participate? And is reopening necessary to avert a nullity or a clear failure of justice, rather than merely to improve the position of persons whose interests were represented through another? In Republic v National Land Commission & 2 others; Chege t/a Smart Choice Electronic Company (Ex parte Applicant); Water and Sewerage Company Ltd (Proposed Interested Party) (Environment and Land Judicial Review Case 7 of 2019) [2025] KEELC 934 (KLR), the ELC correctly described post-judgment joinder as a jurisdiction exercisable only in exceptional and justifiable circumstances. 26. Applied here, the first obstacle is the Judgment itself. It entered judgment against the 1st to 6th Defendants only and expressly declined the claim against the 7th Defendant. The proposed parties were therefore not adjudged liable as the 7th Defendant. Their argument is instead that vacant possession RULING: ELC/E022/2024 Page 24 of 34

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against their landlords will, as a practical matter, terminate their occupation. That consequence is real, but it is not the same thing as a judgment entered against them. 27. The Notice dated 25th March 2026 complicates the Plaintiffs’ position. Their advocates told subtenants that continued occupation was unlawful and threatened eviction under the Judgment. The Plaintiffs cannot invoke the Judgment against the Applicants in execution and then say the Judgment does not affect them at all. It affects them. The true question, however, is whether that practical effect gives them an independent right to reopen the title-and-forfeiture dispute already tried between the lessors and lessees. On the material before the Court, it does not. Their leases are from the 1st to 6th Defendants. No lease, licence, title or consent from the Plaintiffs is shown. Their interests rise and fall, prima facie, with those of their landlords. 28. The Applicants’ complaint of non-service also requires care, as they insist, never served and hence denied any opportunity to participate. On that question, the evidentiary record is RULING: ELC/E022/2024 Page 25 of 34

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against them. The Plaintiffs exhibited an affidavit of service sworn by Stanley Aura, a licensed process server, showing service on 17th April 2024 of the plaint, list of witnesses, witness statement, list of documents, summons to enter appearance and mention notice upon the business occupants at the suit premises. Further affidavits of service show continued service of mention notices and hearing notices through 2024 and 2025. The process server repeatedly deponed that the occupants accepted service but declined to acknowledge receipt on the principal copies, having been cautioned by their landlords not to sign legal documents. Whereas their supplementary affidavit correctly observes that the returns do not name Mary Waleghwa Gona, Edwin Ndume Mungah, Pamela Amolo Opiyo or Beula Ventures, the suit itself described the 7th Defendant collectively as unknown occupants, and the returns state that pleadings and notices were delivered at the premises to identified businesses and occupants on several dates. The Applicants did not seek to cross-examine the process server. In Yebei & another v Kiprono (Representative RULING: ELC/E022/2024 of the Estate of Page 26 of 34 Jonah

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Kipkemoi Kirui) [2026] KECA 887 (KLR), the Court of Appeal reiterated that where an affidavit of service is on record, the best way to challenge it is cross-examination of the process server. In Wachira v Ndanjeru [2025] KECA 1126 (KLR), the Court further held that examination of the serving officer under Order 5 Rule 16 is discretionary and that a compliant affidavit of service may suffice where the court has no genuine doubt. 29. The evidence of service is not perfect as collective service upon unnamed occupants seldom is. But imperfection is not nullity. Against repeated sworn returns, the Applicants offer a general denial and the absence of their personal names. They do not identify who occupied each served business at the material time, explain how notices repeatedly delivered at the suit premises escaped all three of them, or test the process server’s account on oath. On the balance required in this interlocutory inquiry, they have not displaced the evidence that occupants at the premises had notice and an opportunity to come before the Court. RULING: ELC/E022/2024 Page 27 of 34

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26. Our law has never supposed that service becomes invalid merely because the person served declines to sign the process server’s principal copy. To hold otherwise would be to place the efficacy of court process at the mercy of studied refusal. Service is a fact, not a favour. If documents are tendered to, and accepted by, the persons at the premises, then the absence of a signature does not, without more, transmute service into non-service. 30. The right to be heard is a right to an opportunity, not a right to a result and not a perpetual option to enter proceedings after judgment. The applicants relied on authorities concerning irregular default judgments obtained against persons not served at all, including James Kanyiita Nderitu & another v Marios Philotas Ghikas & another [2016] KECA 470 (KLR), as well as decisions emphasising the centrality of natural justice, such as Mbebe & 105 others v Attorney General & 7 others [2021] KEHC 146 (KLR). Those authorities are sound. Indeed, where judgment is truly entered against an unserved party, the court will ordinarily RULING: ELC/E022/2024 Page 28 of 34

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set it aside as of right. But authorities do not decide cases in the abstract, they apply through facts. Here, the applicants have not demonstrated absence of service, rather, the record demonstrates repeated service and deliberate non- participation. 28. That principle in Mbebe & 105 others v Attorney General & 7 others (supra), that no order should issue behind the back of a person likely to be adversely affected, is uncontroversial. Yet even that principle does not license the endless reopening of concluded litigation where the persons concerned were, on the material before the Court, repeatedly notified of the suit and chose not to step forward. Natural justice protects opportunity; it does not reward indifference. 29. There is an additional procedural obstacle. By the time the motion dated 29th April 2026 was filed, the substantive dispute heard, had been submissions filed, judgment delivered and decree extracted. Joinder under Order 1 Rule 10(2) of the Civil Procedure Rules is ordinarily meant to facilitate the complete determination of questions still alive RULING: ELC/E022/2024 Page 29 of 34

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for adjudication. It is not ordinarily a post-mortem instrument for reviving a fully tried case save in the clearest instances of nullity. 31. Nor does the pending appeal justify reopening. It points the other way. Court of Appeal Civil Appeal No. E087 of 2026 places the merits of the Judgment before the appellate court. This Court may preserve the decree through stay, but it should not simultaneously dismantle the Judgment through a collateral application by persons claiming under the appellants. To allow a parallel reopening application on the same Judgment would invite procedural untidiness and the real possibility of conflicting judicial movements around one decree as two judicial currents will be flowing against each other. 32. The Court is therefore not satisfied that exceptional and justifiable circumstances for post-judgment joinder have been established, or that the Judgment is a nullity liable to be set aside ex debito justitiae. This conclusion does not trivialise the Applicants’ businesses or livelihoods. It locates their RULING: ELC/E022/2024 Page 30 of 34

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interests within the legal source from which those interests arise. Whereas a subtenant may suffer when the head lease falls, hardship alone cannot recreate the head lease, nor turn derivative possession into an independent title against the owner. F. CONCLUSION AND DISPOSAL 33. In the end, the law must preserve both movement and repose. The appeal must be allowed to travel without the subject matter being destroyed and the Judgment allowed to remain standing without its fruits being dissipated. The proposed parties have shown that execution touches them, but not that the Judgment was entered against them, that their interest is independent of the unsuccessful Defendants, or that they were denied every reasonable opportunity to be heard. Justice, in this case, lies neither in immediate eviction nor in reopening the whole trial. It lies in a conditional stay, firm security and respect for finality. 34. Accordingly, I make the following orders: RULING: ELC/E022/2024 Page 31 of 34

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(a) The Notice of Motion dated 31st March 2026 is allowed only to the extent that there shall be a stay of execution of the Judgment and decree dated 19 th March 2026 pending the hearing and determination of the appeal, subject to orders (b), (c) and (d) below. (b) 1st Within thirty (30) days from the date of this Ruling, the to 6th Defendants/Applicants shall deposit Kshs. 1,500,000 as security for due performance of the decree in an interest-earning joint account in the names of counsel for the Plaintiffs/Respondents and counsel for the 1st to 6th Defendants/Applicants. (c) Within thirty (30) days from the date of this Ruling, the 1st to 6th Defendants/Applicants shall file and serve a complete schedule identifying every person, business, subtenant or occupier of Title Nos. Mombasa/Block XX/200 and Mombasa/Block XX/201; the unit or portion occupied; the applicable rent, licence fee or occupation charge; all amounts received during the six (6) months preceding this Ruling; and the supporting agreements, licences, receipts, statements or other documents. RULING: ELC/E022/2024 Page 32 of 34

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(d) Pending determination of the appeal, all rents, licence fees, occupation charges and other income arising from the suit properties shall be deposited in the joint interestearning account as indicated in (b) within seven (7) days of receipt. The 1st deposit of all income accrued and held as at the date of this Ruling shall be made within fourteen (14) days from the date hereof. (e) Failure to comply with any one of orders (b), (c) or (d) above shall cause the stay granted herein to lapse automatically, without further order of this Court. (f)Prayer (d) in the Notice of Motion dated 31st March 2026, seeking to set aside the Judgment pending appeal, is declined. (g) The Notice of Motion dated 29th April 2026 is dismissed in its entirety. (h) The costs of the Notice of Motion dated 29th April 2026 are awarded to the Plaintiffs/Respondents. (i)The costs of the Notice of Motion dated 31st March 2026 shall abide the outcome of the appeal. RULING: ELC/E022/2024 Page 33 of 34

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DATED, SIGNED AND DELIVERED virtually via Microsoft teams at Mombasa this 1st day of October 2026. ……………........................ B. A. AKELLO, OGW JUDGE In the presence of: Gillian – Court Assistant Kibii h/b for Munyithya fir 1st defendant/applicants No appearance for the plaintiff RULING: ELC/E022/2024 Page 34 of 34

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