Mathilda Cornella De Leeuw v Robert Max Mulie (sued As The Executor and Legal Representative of The Estate of The Late Benhard Martens) & 4 others

3. The court also found that the Watamu property (LR. No. 8596) belongs to the company and that a portion of the property (the guest house) has been in continuous occupation by the plaintiff, due to the fact that she was a shareholder. 4. The court further noted that the main house was always in use by the deceased or his guests. The court found that the plaintiff had the right to live in and occupy the property. It dismissed the claim that she was living in the property as a tenant-at-will or licensee. The 1st Defendant’s Application 5. The first application, by the 1st defendant, is dated 21st February 2024. It is supported by the annexed affidavit sworn by the 1st defendant on the same date. It also filed written submissions dated 11th April 2025. 6. The grounds are that the 1st, 2nd and 5th defendants and the interested party, being aggrieved by the court’s judgment dated 29th January 2025, have filed a notice of appeal dated 14th February 2024. 7. The 1st defendant highlighted that the dispositive part of the judgment, couched in mandatory terms, unfairly, unjustly and erroneously divests the Estate of the Late Bernhard Martens (the deceased) and its beneficiaries of 98% shareholding in (the company), and by extension, divests and deprives, the Estate and its beneficiaries of their right and interest in LR. No. 8596. 8. The 1st defendant argued that the applicants have arguable appeals. It also argued that if the stay is not granted, the Estate stands to suffer irreparable damage and loss as the plaintiff might proceed to enforce the terms of the judgment. It asserted that changes in the shareholding may affect the Watamu property, resulting in the detriment of the heirs of the Estate, who will not be able to recover Lulumizi Limited in its current status. 9. The 1st defendant highlighted that the status quo obtaining was that the plaintiff resides in the guest house while the 2nd defendant manages the main house, used as a holiday house. It posed that allowing the application would not prejudice the plaintiff as she would continue to reside on the suit property for the duration of the appeals. 10. The 1st defendant contended that the plaintiff has not demonstrated that she is a person of means and therefore, there is reasonable apprehension that the Estate would not be able to recover the suit property in the event that the appeal is successful. 11. The 1st defendant pointed out that during cross-examination, the plaintiff indicated that she retired in 1989 and that she sold her property in the Netherlands in the 1980s. Thus, the 1st defendant submitted that the plaintiff has no income that she has not disclosed that she has any properties that would enable them to pursue as a means of recovery in the event that the appeals succeed. 12. The 1st defendant relied on:1. Obadiah Mugambi v Joyce Ncoro [2021] eKLR 2. Chris Munga N. Bichage v Richard Nyagaka Tongi & 2 Others [2013] eKLR 3. Apungu v Justinice Limited [2024] eKLR 4. Equity Bank Limited v Taiga Adams Company Limited [2006] eKLR 5. Xplico Insurance Company Ltd v Obsidition Investments Ltd & 4 others [2019] eKLR 6. National Industrial Credit Bank Ltd v Aquinas Francis Wasike and Another [2006] eKLR https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/12651/eng@2025-07-31 2

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7. Rosengrens Ltd v Safe Deposit Centers Ltd [1984] 3 All ER 8. Ellen Wangari Mburu v Patrick Kinuthia Kiiga [2021] eKLR 9. Ochieng v Baya (Miscellaneous Application E114 of 2023) [2024] eKLR 2nd Defendant and the Interested Party’s Responses 13. The 2nd defendant and the interested party support the 1st defendant’s application. They filed replying affidavits sworn on 19th March 2025 and 12th March 2025 respectively. They also filed written submissions dated 8th April 2025 and 2nd April 2025 respectively. 14. The 2nd defendant averred that she is the daughter of the deceased, a shareholder in the company and that took care of the company’s property upon the demise of the deceased. He indicated that he was also dissatisfied with the judgment. He exhibited a copy of its notice of appeal dated 17th February 2025 and Grounds of Cross Appeal, to support the position that its intended cross appeal raises arguable points with a good chance of success. 15. The 2nd defendant deposed that he is apprehensive that the plaintiff will take steps to change the board structure by changing current directorships and introducing new directors to convert or transfer the shares and sell the company property or portions thereof. 16. The 2nd defendant relied on Antoine Ndiaye v African Virtual University [2015] eKLR and Gianfranco Manenthi Ltd and another v African Merchant Assurance Co. Ltd [2019] eKLR. 17. The interested party averred that she was the common law wife and an heir of the deceased. She recounted the succession proceedings, which are still underway. She exhibited a copy of her draft memorandum of appeal, to support the position that her intended appeal has reasonable chances of success. 18. The interested party asserted that she stands to suffer substantial loss if a stay is not granted because she will be disinherited as the 98 shares vested in the deceased’s estate shall be removed from the Estate’s assets. She elaborated that if the plaintiff proceeds to execute the judgment, there is a risk that she will be compelled to settle costs and accrued interest. 19. The interested party contended that no order ought to be made for security to be given for the undue performance of the judgment as a condition for a stay as the judgment was not pecuniary in nature. 20. The interested party relied on Nation Media Group Limited v Faith Muthoni Njiru [2021] eKLR and Machira t/a Machira & Co. Advocates v East African Standard [2002] eKLR. 5th Defendant’s Application 21. The 5th defendant’s application dated 11th March 2025, is supported by her affidavit of the same date. She also filed written submissions dated 11th April 2025. She is the deceased’s ex-wife. She has also lodged an appeal. She exhibited her draft memorandum of appeal dated 6th March 2025, arguing that the appeal raises arguable points. 22. The 5th defendant argued that she stands to suffer substantial loss if a stay is not granted as the plaintiff has initiated extraction of decrees and will soon execute, obtain shares and sell the company’s property. 23. The 5th defendant further asserted that the plaintiff has no means of income or assets. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/12651/eng@2025-07-31 3

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24. The 5th defendant relied on Peter Nakupang Lowar v Nautu Lowar [2022] eKLR, RWW v EKW [2019] eKLR, Nairobi City Council v Tom Ojienda & Associates (Civil Appeal (Application) E080 of 2022 (2022) KECA 1326 (KLR) 2 December 2022 (Ruling) and Stanley Kajanya Wainaina & Another v Ridon Ayangu Mutubwa Nairobi HCCA 427/2015. Plaintiff ’s Response 25. The plaintiff opposed the applications through a replying affidavit sworn on 13th March 2025 and a further replying affidavit sworn on 28th March 2025. 26. The plaintiff indicated that the rectification of the register of members was effected as at 26th March 2025, reflecting that the plaintiff is a director/ shareholder. She submitted that the issue of stay pending appeal has been rendered moot. 27. The plaintiff contended, without prejudice to the foregoing, that the applicants have not demonstrated that they will suffer substantial loss if a stay is not granted. Regarding the allegation that the decision was unjust and erroneous, she argued that the court is functus officio and cannot revisit the merits of the decision. She added that an interrogation of the perceived arguable points would amount to the court sitting in appeal over its own decision and usurp the court’s jurisdiction. 28. The plaintiff asserted that she will be prejudiced if a stay is granted as she will continue to be deprived of her shares in the company and the state of ownership of the shares will be left in flux, negating the purpose of the judgment. 29. The plaintiff also indicated that she stands to be evicted, deprivation of her right to property, should the 1st and 2nd defendants decide to alter directorship and shareholding of the company pending the hearing and determination of the appeal. 30. The plaintiff relied on:1. Institute for Social Accountability & another v National Assembly & 5 others [2022] KESC 39 (KLR) 2. National Assembly & another v Okoiti & 55 others (Civil Appeal E003 of 2023 & E016, E021, E049, E064 & E080 of 2024 (Consolidated)) [2024] KECA 876 (KLR) 3. Daniel Kaminja & 3 others (Suing as Westland Environmental Caretaker Group) v County Government of Nairobi [2019] KEHC 2059 (KLR) 4. William Lerikan Konchellah & another v Julius Tabarai Ole Maito Tampushi [2014] eKLR 5. Stephen Kipkebut t/a Riverside Lodge and Rooms & another v Natali Ogola & another [2013] eKLR 6. New Nairobi United Services Ltd & another v Simon Mburu Kiiru [2021] KEHC 674 (KLR) 7. Luxus Woods (K) Limited v Patrick Amugune Kamadi [2016] KEHC 4926 (KLR) 8. Obadiah Mugambi v Joyce Ncoro [2021] eKLR 9. Halai & another v Thornton & Turpin (1963) Ltd [1990] KECA 65 (KLR) 10. Antoine Ndiaye v African Virtual University [2015] KEHC 6783 (KLR) 11. Chris Munga N. Bichage v Richard Nyagaka Tongi & 2 Others (2013) eKLR https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/12651/eng@2025-07-31 4

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12. Apungu v Justinice Limited (2024) eKLR 13. Ochieng v Baya (Misc. Application E114 of 2023) [2024] eKLR 14. Butt v Rent Restriction Tribunal [1982] KLR 417 15. Nesco Services Limited v CM Construction (EA) Limited [2019] KEHC 11822 (KLR) 16. Mwaura Karuga t/a Limit Enterprises v Kenya Bus Services Ltd & 4 others [2015] KEHC 6121 (KLR) 17. James Wangalwa & Another v Agnes Naliaka Cheseto [2012] KEHC 1094 (KLR) 18. Samvir Trustee Limited v Guardian Bank Limited [2007] eKLR 19. Nation Media Group Limited v Faith Muthoni Njiru [2021] KEHC 3884 (KLR) Analysis and Determination 31. The issue for determination is whether the applicants have met the conditions for stay pending appeal under Order 42 Rule 6 of the Civil Procedure Rules. 32. Substantial loss occurring unless stay is granted is the cornerstone of exercise of discretion of the court to grant stay. The court will also consider provision of security and whether the application has been made without inordinate delay. 33. The judgment was delivered on 3rd February 2025 and the applications were filed on 21st February 2025 and 11th March 2025. Therefore, I find that the applications were brought without inordinate delay. Substantial loss 34. In James Wangalwa & Another v Agnes Naliaka Cheseto [supra], the court observed that: “ Substantial loss is what has to be prevented by preserving the status quo because such loss would render the appeal nugatory.” 35. The applicants argued that they stand to suffer substantial loss if a stay is not granted. The applicants expressed their apprehension that the plaintiff will soon execute, obtain shares and sell the company’s property. 36. The present case involves the ownership of shares. Through the impugned judgment, the court issued a mandatory injunction compelling the Chief Registrar, Companies Registry to rectify the entries to the Register of Companies in respect of Lulimizi Limited registration number C.75xxx to show that the plaintiff owns 98 shares and that she is a director of Lulumizi. 37. According to the plaintiff, the changes in the register have been done and that the quest for stay or injunction thereto is moot or has been overtaken by events. 38. To my mind, the applicants’ apprehension is that the plaintiff may sell the company’s property. There is no evidence that the plaintiff may sell or that any sale of the property of the company is in the offing. They merely speculate that she may sell the shares and the company’s assets. In any event, the apprehension will be prevented by issuing an injunction against transfer of shares to third parties or sale or dissipation of the company property by plaintiff or any person. I say so truly aware of the rights of the parties; the plaintiff’s right to the fruits of judgment; and the defendant’s right of appeal; which should be held in a proportioned balance not to rout any of the rights. The claim by the plaintiff that https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/12651/eng@2025-07-31 5

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she will be denied the right to property-shares in a company- and will be living at the mercy of, and may be evicted by the defendants if stay is granted, are not trifle arguments or concerns. From the judgment the applicants argued that the plaintiff was a tenant at will or a licensee-an argument the court rejected. But, is significant because, from the averments by the defendants, although they suggest that the plaintiff shall continue to occupy the guest house, their desire is to retain and remain in total control of the company’s affairs and assets whilst they pursue their appeal without much consideration of the plaintiff’s right to the fruits of judgment. 39. I do note also that, once an order preventing sale of the company assets is issued, the issue of whether the plaintiff would be able to compensate the applicants, is neither here nor there. 40. Therefore, the defendants will not suffer any substantial loss to warrant a stay of execution. 41. Accordingly, the order that commends itself to the court is an injunction to restrain any sale of the property of or shares in the company pending the determination of the appeal. Conclusion 42. The test of whether to grant stay of execution or proceedings pending appeal, in the High Court, is under Order 42 rule 6. Mukiri v Mutie & 2 others (Civil Appeal E026 of 2022) [2022] KEHC 11344 (KLR) (30 May 2022) (Ruling) 43. The rectification of the register of members was effected as at 26th March 2025, reflecting that the plaintiff is a director/ shareholder. The prayers for an order for a stay have been overtaken by events. 44. As stated and found earlier, an injunction against dissipation of the company assets and shares removes any possibility of substantial loss to the applicants. Therefore, the application does not pass the test in Order 42 Rule 6 of the Civil Procedure Rules. Disposal 45. In conclusion, the applications dated 21st February 2025 and 11th April 2025 are not merited and are declined. Except, the court makes the following orders: a. An injunction is issued restraining the plaintiff and/ or Lulumizi Limited, whether by themselves, their agents or servants from selling, transferring, charging, leasing or otherwise dissipating the Watamu Property (LR. No. 8596) until the appeal is determined. b. As the plaintiff confirmed that the register of members of the company has been altered, I issue an injunction restraining the plaintiff and/ or Lulumizi Limited, whether by themselves, their agents or servants from selling, transferring, charging, assigning or otherwise dissipating the 98 shares of the company granted to the plaintiff in the judgment herein to third parties pending determination of the appeal. c. Costs of the application shall abide the outcome of the appeal. DATED, SIGNED AND DELIVERED AT NAIROBI THROUGH MICROSOFT TEAMS ONLINE APPLICATION THIS 31ST DAY OF JULY 2025 ---------------------F. GIKONYO M JUDGE In the presence of: - https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/12651/eng@2025-07-31 6

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Ms. Sadia for 2ND Defendant Litoro for 5th defendant Mbaluto for 1st defendant Ndungu for plaintiff Wakhisi for Mogere for Interested party CA Kinyua https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/12651/eng@2025-07-31 7

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