Donald B Korir v Muthaiga Country Club Plc & 4 others

JOHN NGUMI………………………………………….….12TH RESPONDENT VIJAY VASHDEV GIDOOMAL……………………….….13TH RESPONDENT ROGER BEBBINGTON………………………………….14TH RESPONDENT JESSICA GAIL PAUL………………………………..…….15TH RESPONDENT MICHAEL TURNER ALAN……………………….……..16TH RESPONDENT GEORGE THEOBALD CARMICHAEL………….……..17TH RESPONDENT CONRAD NYUKURI………………………………..….…18TH RESPONDENT RULING INTRODUCTION 1. This ruling is with regard to Notice of Motion dated 5 th December 2025 in which the Applicants seek the following orders THATa. Spent b. Spent c. There be a stay of execution of the judgment of 7 th November 2025 and the resultant decree pending the hearing and determination of the respondents’ intended appeal to the Court of Appeal. d. The costs of this application be provided for. 2. The Application is presented under rules 19 and 32 of the Constitution of Kenya (protection of rights and fundamental freedoms) Practice and Procedure Rules, 2013 and is premised on the grounds of the face of the application and is supported PET/E 455 OF 2024 Page 2 OF 8

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by the affidavit of Jonathan Stewart Philip Coulson sworn on the same date. 3. The Applicants being aggrieved by the judgment delivered herein, intend to appeal against that judgment. The Petitioners are keen to execute and the applicant is apprehensive that unless the stay is granted their intended appeal will be rendered nugatory. The means of the Petitioner are unknown and the respondents are apprehensive that they may not be able to recover the sums if the appeal is successful. No prejudice shall be suffered by the Petitioner as there is no risk that the 1st respondent will not be able to pay the decretal sum in the event the appeal does not succeed. The 1 st respondent is prepared to deposit the entire decretal sum in a joint interest earning account held between the parties’ counsel pending the hearing and determination of the appeal. It is further submitted that the application has been brought without undue delay. 4. The Petitioner opposes the application and has filed grounds of opposition dated 13th February 2026. He contends that the application is an abuse of Court process and is intended to delay and deny him the fruits of his judgment. It is argued that PET/E 455 OF 2024 Page 3 OF 8

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it has not been demonstrated that the applicants will suffer irreparable loss, their fear that the Petitioner may not refund the decretal sum if the appeal succeeds is without basis. The Grant of the Stay will prejudice the Petitioner. It is argued that the application has not met the legal threshold for the grant of stay of execution. 5. The Application was canvassed via written submissions. Both parties filed their submissions. 6. The Applicants’ submissions are dated 2nd February 2026 it is submitted that the applicants have provided sufficient basis for the grant of the stay the application was presented without delay, it has been demonstrated that the applicants will suffer substantial loss unless stay is granted and they have provided sufficient security for performance of the decree. 7. Reference is made to decisions in Tropical Commodity Suppliers Ltd v International Credit Bank Ltd (In Liquidation) [2004 EA 2 EA 331; Housing Finance Company of Kenya v Sharok Kher Mohamed Ali Hirji & Another [2015] KECA 447 (KLR); James Wangalwa and Joseph Simiyu Mukenya v Agnes Naliaka Cheseto [2012] KEHC 1094 (KLR). PET/E 455 OF 2024 Page 4 OF 8

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8. It is submitted that the primary consideration is to safeguard against the appeal being rendered nugatory and reference made to the decision in Butt v Rent Restriction Tribunal [1982] KLR 417 and Halai & Anor vs Turpin (1963) Ltd [1990] KECA 65 (KLR). It is submitted that the burden lay with the Petitioner to demonstrate that he had the means to refund the decretal sum if the appeal were successful a burden he has not discharged. Reference is made to the decision in National Industrial Credit Bank Ltd v Aquinas Francis Wasike & Anor [2006] KECA 333(KLR). The Applicant’s further submit that execution would expose the 1 st respondent to reputational harm and disruption of its operations. 9. On security, it is submitted that the applicants have demonstrated good faith by making an offer to deposit the money in a joint account of the Counsel and reference made to the decision in Focin Motorcycle Co. Limited v Ann Wambui Wangui & Another [2018] KEHC 8358 (KLR) and Mwaura Karuga t/a Limit Enterprises v Kenya Bus Services Ltd & 4 Others [2015] KEHC 4051 (KLR). The depositing of the judgment sum in a joint interest- bearing PET/E 455 OF 2024 Page 5 OF 8

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account provides an appropriate balance between the respondent’s right to appeal and the petitioner’s right to enjoy the fruits of the judgment. 10. The Petitioner’s Submissions are dated 13 th February 2026, he frames the issue for determination as a. Whether the Respondents have met the threshold for the grant of a stay of execution pending appeal. 11. It is submitted that the Applicants have not brought themselves within the parameters of Order 42 rule 6 of the Civil Procedure Rules, 2010. It is submitted that the applicants have not established that the appeal will be rendered nugatory, and the Court is obligated to consider the interests of both parties. Reference is made to the decisions in RWW v EKW [2019] eKLR; Chris Munga N. Bichange v Richard Nyagaka Tongi & 2 Others [2013] eKLR. 12. Further, it is urged that the grant of stay is discretionary and the applicants are obligated to comply with conditionsante. Reference is made to the decision in Antoine Ndiaye v African Virtual University [2015] eKLR. In this instance it is submitted the applicants have failed to demonstrate that they will suffer irreparable loss. PET/E 455 OF 2024 Page 6 OF 8

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ANALYSIS AND DETERMINATION 13. Having considered the pleadings, submissions filed, judicial precedents cited and the relevant law, I discern that the following as the issues for determination hereina. Whether the Application is merited and stay of execution pending appeal should be granted? b. If the answer to (a) above is in the above on what terms should the stay be granted c. What is the appropriate order on costs. Whether the Application is merited and stay of execution pending appeal should be granted? 14. Rule 32 of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013 providesStay Pending Appeal 32. (1) An appeal or a second appeal shall not operate as a stay of execution or proceedings under a decree or order appealed. (2) An application for stay of execution may be made informally immediately following the delivery of judgment or ruling and the court may issue such orders as it deems fit and just. (3) A formal application for stay may be filed within 14 days of the decision appealed from or within such time as the court may direct. 15. The provision is identical to that under Order 42 Rule 6 of the Civil Procedure Rules and the factors to guide the Court in considering whether or not to grant the stay in civil proceedings PET/E 455 OF 2024 are clearly delineated Page 7 OF 8 by the statute and

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established by judicial precedent. The same were reiterated by the Supreme Court in Kwale Sugar International Company Limited vs Epco Builders Limited & 2 Others Petition (Application) No. E007 of 2025. [7] (ii)The principles and considerations guiding the grant of interlocutory orders by this Court are that: the appeal is arguable and not frivolous; unless the orders sought are granted, the appeal, were it to eventually succeed, would be rendered nugatory; and it is in the public interest that the conservatory orders be granted. See Munya Vs Kithinji & 2 others [2014] KESC 30 (KLR). (iii). In assessing whether an appeal is arguable, the Court does not examine the merits of the appeal at this stage, nor does it render any conclusive findings on matters of fact or law. An arguable appeal is not one that must necessarily succeed, but one that presents at least one plausible issue to warrant full SC Petition (Applic) No. E007 of 2025 consideration at the hearing. It is stressed that even a single arguable point is sufficient to satisfy this threshold. (iv). Regarding the nugatory aspect, the key question is whether the subject matter to be preserved, if lost, can be reversed or restored. If it cannot be reversed, the Court must consider whether monetary compensation would offer adequate redress. See Stanley Kang’ethe Kinyanjui Vs Tony Ketter & 5 Others, Civil Application No. 31 of 2012; [2013] eKLR. As a third ground, the Court will inquire as to where the public interest lies, considering the parties’ respective rights. 16. In exercising this Court’s discretionary authority under Rule 32 of the Mutunga rules, the inquiry is guided by the imperative to preserve the integrity of the appellate process PET/E 455 OF 2024 Page 8 OF 8

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while respecting the prevailing rights of the successful litigant. I am persuaded that the applicants have presented an arguable appeal. Their motion was filed without undue delay, and they have exhibited commendable good faith by offering security for the due performance of the decree. 17. On the other side of the scale stands the Petitioner, who holds a valid judgment and, as a matter of law, is entitled to its fruits. The timeline for the final determination of the appeal remains uncertain. Yet it is uncontested that the Petitioner is a well-established advocate of considerable professional standing. On the evidence, and drawing reasonable inferences, an advocate whose clientele includes members of the distinguished Muthaiga Country Club cannot credibly be characterised as a man of straw. 18. In these circumstances, the balance of justice requires an order that preserves the substratum of the appeal without extinguishing the Petitioner’s legitimate expectations under the judgment. Having considered all these factors, I grant stay of execution pending appeal on the following conditions- - PET/E 455 OF 2024 Page 9 OF 8

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i. The 1st Respondent will pay to the Petitioner half of the decretal sum (Kshs 500,000) within 14 days from the date of this ruling. ii. The balance of the decretal sum (Kshs 500000) to be deposited into a joint interest earning account in the name of Counsel for the Petitioner and Respondents within 14 days from the date of this ruling 19. Each party will bear their own costs. SIGNED, DATED AND DELIVERED NAIROBI THIS 18TH DAY OF JUNE 2026. P. M NYAUNDI JUDGE VIRTUALLY In the Presence of; Fardosa Court Assistant Ms. Kimani holding brief Kiragu Kimani for Applicants PET/E 455 OF 2024 Page 10 OF 8 AT

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