Ian Kahiu Ngethe & 3 others v Koinange Investments and Development Company Limited

4. By way of an application dated 15th November 2003, the respondent sought an order that Reuben N. Nyakundi signs “all further documents necessary for the transfer of the property” 5. The court allowed the application and issued an order to that effect on 19th November 2003. 6. Through the ruling of 17th March 2025, the court allowed the respondent’s application for review of the order of 19th November 2003 to replace Rueben Nyakundi with the Deputy Registrar. 7. Being aggrieved with that ruling, the applicant lodged a notice of appeal dated 17th March 2025. It indicated that it has applied for certified copies of the ruling, order and typed proceedings for purposes of filing a record of appeal and lodging a substantive appeal. Grounds 8. The applicant is apprehensive that if stay is not granted it stands to suffer loss if the respondent executes the decree as a portion of the property known as L. R. No. 209/9099 will be transferred through an administrative action of the deputy registrar of this court. 9. If stay is not granted, the two pending appeals and the intended appeal will be rendered nugatory. 10. The applicant believes that it has an arguable appeal with high chances of success. 11. If the intended appeal fails, the suit property remains in situ and the respondent can obtain possession and ownership rights. 12. The applicant relied on: - 6. 1. Butt v Rent Restriction Tribunal [1979] KECA 22 (KLR) 2. Tropical Commodities Suppliers Ltd & Others v International Credit Bank Ltd (in liquidation) [2004] 2 EA 331 3. James Wangalwa & Another v Agnes Naliaka Cheseto [2012] eKLR 4. Good News Church of Africa v Board of Management Eldoret Secondary School [2021] eKLR 5. RWW v EKW [2019] eKLR Samvir Trustee Limited v Guardian Bank Limited [2007] eKLR Response 13. The respondent highlighted the litigation background of the matter that culminated in the ruling of 17th March 2025. It maintained that the applicant’s allegation that the order of 19th November 2003 is not valid is unmerited. 14. The respondent contended that the issue of the property being transferred to the applicant was determined by Osiemo J. on 14th October 2002 and has never been set aside through the numerous appeals filed. That what remains is the administrative process of having the deputy registrar execute the relevant documents as ordered by the court. 15. The respondent therefore argued that the applicant has not demonstrated substantial loss that it would suffer if stay is not granted. It also asserted that it would be an exercise in futility for the court to order for any security to be provided when the substantive issue has already been determined on appeal. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19251/eng@2025-12-18 2

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16. The respondent highlighted that there have been 15 decisions in this matter, going all the way to the Supreme Court, all to stop the estate from enjoying the fruits of the judgment delivered on 14th October 2002. 17. The respondent also urged the court to amend the ruling of 17th March 2025. They claimed that at paragraph 1, the court erroneously referred to an application dated 28th August 2024, instead of 3rd July 2024. 18. The respondents relied on: 1. Daniel Kibet Mutai & 9 others v Attorney General [2019] eKLR Analysis and Determination 19. The core issues before the court is whether the applicant has met the threshold for stay of execution pending appeal. 20. Order 42 Rule 6 of the Civil Procedure Rules provides that: “ (1) No appeal or second appeal shall operate as a stay of execution or proceedings under a decree or order appealed from except 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 preferred may apply to the appellate court to have such order set aside. (2) No order for stay of execution shall be made under subrule (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.” 21. The court’s power to grant stay pending an appeal is discretionary. In exercising discretion, the court is guided by principles and not whims or caprice, considering all the material circumstances of a case. 22. The discretion ought to be exercised in a way that does not hinder the appeal, if successful, from being nugatory. Vishram Ravji Halai v Thornton & Turpin Civil Application No. Nai 15 of 1990 [1990] KLR 365 23. There are three conditions that must be met by an applicant for stay pending appeal. Sufficient cause, substantial loss and security. 24. The application must also be brought without undue delay. The application is dated 24th March 2025, and it seeks stay of execution of the ruling dated 17th March 2025. Therefore, the application has been filed timeously. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19251/eng@2025-12-18 3

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Substantial loss 25. The applicant has sought a stay of the ruling of 17th March 2025 through which the court reviewed the orders of 19th November 2003 by removing the name of Rueben Nyakundi (now a High Court Judge) with the deputy registrar of the Commercial and Tax Division. 26. Through the judgment of 14th October 2002 Osiemo J. found that the plaintiff validly exercised his option to purchase the suit property. He issued an order that the defendant do transfer the subdivision to the plaintiff and in default the deputy registrar executes any documents to necessitate the transfer. The court further ordered the defendant completes the subdivision of the plot sold to the plaintiff and in default, the plaintiff be at liberty to carry out the exercise of subdivision. 27. The course of litigation that followed is well documented. The judgment has not been set aside. 28. The applicant indicated that it is apprehensive that if stay is not granted it stands to suffer loss if the respondent executes the decree as a portion of the property known as L. R. No. 209/9099 will be transferred through an administrative action of the deputy registrar of this court. It also contended that its intended appeal would be rendered nugatory if a stay is not granted. 29. On the other hand, the respondents asserted that the applicant has not demonstrated substantial loss that it would suffer if stay is not granted. 30. This court in James Wangalwa & Another v Agnes Naliaka Cheseto [2012] KEHC 1094 (KLR), underscored that: “ 11. ... the fact that the process of execution has been put in motion, or is likely to be put in motion, by itself, does not amount to substantial loss. Even when execution has been levied and completed, that is to say, the attached properties have been sold, as is the case here, does not in itself amount to substantial loss under Order 42 Rule 6 of the CPR. This is so because execution is a lawful process. The applicant must establish other factors which show that the execution will create a state of affairs that will irreparably affect or negate the very essential core of the Applicant as the successful party in the appeal. This is what substantial loss would entail,...” 31. Moreover, in Machira t/a Machira & Co Advocates v East African Standard [2002] KEHC 1167 (KLR) Kuloba J. observed: “ If the applicant cites, as a ground, substantial loss, the kind of loss likely to be sustained must be specified, details or particulars thereof must be given, and the conscience of the court, looking at what will happen unless a suspension or stay is ordered, must be satisfied that such loss will really ensue and that if it comes to pass, the applicant is likely to suffer substantial injury by letting the other party proceed further with what may still be remaining to be done or in execution of an awarded decree or order, before disposal of the applicant’s business (eg appeal or intended appeal).” 32. The decision by Osiemo J has not been reversed. It is the foundational judgment which also made provision for how execution of the decree should be carried out. In the circumstances of this case, the applicant has not demonstrated how an appeal on the review decision shall be rendered nugatory. The https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19251/eng@2025-12-18 4

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applicants’ preoccupation or obsession to keep the land, is not, in itself, substantial loss for which stay of execution pending appeal will be granted. 33. Guided by the above decisions, the court finds that the applicant has not demonstrated substantial loss. 34. Having arrived at this finding, the court does not consider it necessary to go into the issue of security. Correction of error 35. The respondent urged the court to amend the ruling of 17th March 2025 at paragraph 1 to correct the date of the application from 28th August 2024, instead of 3rd July 2024. 36. The record confirms that the correct date of the application subject of the ruling is 3rd July 2024. 37. Accordingly, the court finds that this is a clerical mistake that ought to be rectified pursuant to section 99 of the Civil Procedure Act. Conclusion 38. The upshot is that the court finds that the applicant has not met the conditions for the grant of a stay pending its intended appeal. 39. The application dated 24th March 2025 is dismissed for want of merit with costs to the plaintiff/ respondent. 40. Paragraph 1 of the ruling of 17th March 2025 is amended; the date of the application to read 3rd July 2024 instead of 28th August 2024. DATED, SIGNED AND DELIVERED AT NAIROBI THROUGH MICROSOFT TEAMS ONLINE APPLICATION THIS 18TH DAY OF DECEMBER, 2025 ---------------F. GIKONYO M JUDGE In the presence of: Muriithi for Muihuri for plaintiff Lawrence Mbaabu for defendant CA Kinyua https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19251/eng@2025-12-18 5

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