https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4463

 REPUBLIC OF KENYA IN THE ENVIRONMENT AND LAND COURT OF KENYA AT MOMBASA COUNTY COURT NAME: MOMBASA ENVIRONMENT AND LAND COURT CASE NUMBER: ELCC/222/2019 LEAH NTHAMBI BRANT & OTHERS VS FREDRICK BARAKA KAINGU & OTHERS RULING The Applicants come to this court with prayers that the execution of the judgment in the ELC NO. 222 of 2019 by of learned Judge Honourable Stephen Kibunja delivered on 25th of June 2025 and any resultant order and decree therein be stayed pending the hearing and determination of the applicants intended appeal. The costs of the application be provided for. The application is based on the grounds that the judgment herein was delivered on 25th of June 225, and being aggrieved by Judgment herein, the applicants instructed their counsel M/s Otieno B. N & Associates advocates to file an appeal to which a notice of appeal dated 4th July 2025 and served to the respondents on the even date. That the applicants /defendants are aggrieved by that whole judgment of the court delivered on 25th of June 2025 and is in the process of filing an appeal to the Court of Appeal. That upon receipt of instructions to file an appeal, their advocates have hands on the deck and have prepared the requisite notice of appeal made official request to the deputy registrar Mombasa ELC for typed and certified copies of the proceedings as part of the record of appeal. That the applicants/defendants seek an order for stay of execution of the judgment noting that vide a letter dated 25th October 2025 the respondents advocates M/S Munyithya Mutugi, Umara and Muzna & Co. advocates have issued notice of vacant possession and have already commenced the eviction and demand costs for Kshs2,500,000 demanding the compliance effective immediately and there is imminent threat of execution and yet the applicants/defendants would wish to ventilate the issues in its appeal first. That the applicants/defendants are apprehensive that the respondents will commence execution proceedings at any time, thereby causing them to suffer substantial loss and irreparable harm as their homes and family dwellings will be demolished or destroyed before the appeal is heard and determined, if stay is not granted. The applicants/defendants has an arguable appeal with high chance of success. This application has been filed without unreasonable delay and the respondent will not be prejudiced if the application is allowed. Unless an order of stay of execution is granted, the applicants/defendants intended appeal will be defeated as the respondents are likely to proceed with execution during the pendency of the appellants intended appeal. The applicants/defendants is ready and willing to abide by any conditions and term as the court may deem fit to impose. The application is supported by the annexed affidavit of Fredrick Kaingu who reiterates the grounds of the application. The applicants further state that unless a stay of execution is granted they will suffer substantial loss and irreparable harm as their homes and family dwellings will be demolished or destroyed before the appeal is heard and determined. That the loss occasioned cannot be adequately compensated by damages, since the subject matter is land of sentimental, culture and matrimonial value to the applicants and their families. That the applicants have already lodged a notice of appeal against the said judgment which raises serious and arguable issue of law and fact with high chances of success. In the replying affidavit, the respondent states that the 1st Plaintiff purported to sell land he did not own, to the deponent on 7th May, 2019. In the case by the Plaintiffs ELC NO. 141 OF 2020 in the year 2020, the deponent alleged to have come into the property more than 12 years before filing the suit. During the trial of the suit, PW-I was Cecil Charo Mae confirmed that this deponent entered the suit property after the agreement. From the above, it is absurd to imagine what appeal this deponent will lodge before the Court of Appeal. That after judgment several people have approached them and disclosed that they have purchased portions of land within the suit property from the plaintiffs herein. For that reason, most of the plaintiffs have sold the portions they occupied and left. The court is now dealing with a generation of strangers who were duped to buy into the fraud of the plaintiffs in ELC NO. 141 OF 2020. That the plaintiffs having left the suit property are not likely to suffer any damage should the stay of execution is not granted. The application as drawn does not disclose the existence of an arguable appeal. That the judgment was delivered on 25th June, 2025 and this application was filed in October 2025. There is as such no urgency of the matter. That the application has not met the threshold provided in law for stay of execution. The application has no merit and is for dismissal. The plaintiff submits that the Deponent of the affidavit in support of the motion cannot sustain a successful appeal to the Court of Appeal, prima facie. The court is invited to note that the claim in ELCNO.141 OF 2020- Mombasa was based on the statute of Limitation of Actions Act Cap 22, Laws of Kenya. The Defendants alleged that they have occupied the suit property for a period of more than 12 years. They then relied on Section 7 of that Act. In the response by Timothy Isaac Bryant demonstrated that the Deponent came into the suit property in 2019 through a Purchase Agreement dated 7.5.2019. The suit, ELC NO. 141 OF 2020- Mombasa was then filed in 2020 while this suit had been filed in 2019. Prima Facie 12 years had not lapsed. The question is, what appeal will 1st Defendant Fredrick Baraka Kaingu file in the Court of Appeal? The 2nd ground the Defendants have to overcome comes through their identity. Trial Judge Justice Sila Munyao issued orders for a ground survey. This is part of the court record. The joint survey was done and is dated 3.3.2021. The suit was then placed before the judge on 22.3.2021. The Defendants were ordered not to construct any further structures pending the hearing and determination of the suit. It was the evidence of the Plaintiffs and which was accepted by the Trial court that the Defendants went on with the construction notwithstanding the court order. The respondent submits that that orders of stay of execution as sought by the Applicants/ Defendants are equitable remedies. The respondent relies on rely on the old maxim that he who comes to equity must do equity. Further he who comes to equity must come to court with clean hands. The plaintiff relies on the case of Lukorito Siror [20251 KEELC 1348 (KLR) the court held as follows; On the first issue, whenever the court is called upon to grant or refuse an order of injunctions, one thing comes to mind immediately is that the remedy is an equitable one. Thus, for the court to grant it, it exercises discretion based on the legal principle that it is an equitable remedy. One important cardinal rule is that who comes to equity must do equity. He must also approach the court with clean hands. Further in David Kiogora Kirimania v Muringu Muchai Ikabu & another 120181 KEELC 336 (KLR) the court held as follows; He who comes to equity must do equity. Land is a very sensitive and emotive subject. A party should not approach this subject in a sloppy manner. A party who does not place himself favorably before the eyes cannot expect such favor. On the question of substantial loss, we wish to submit that the Defendants have not discharged that burden. As submitted above, most of the Plaintiffs in ELC NO. 141 OF 2020- Mombasa have long left the suit property. They have no interest on the suit property. They will suffer no loss all. The plaintiff cites Kilonzo v Kiige; Embakasi Ranching Company (Interested Party) (ELC Civil suit E285 2022) [20261 KEELC 533 (KLR) where the court held as follows; "The defendant herein did not go further to show or substantiate the nature of the loss he would suffer, that would amount to substantial loss to warrant this court stay the evicti0' orders against him. The Plaintiff was found by the court to be the legal proprietors of suit property, and the defendants/applicants did not show how the said plaintiff would b unable or incapable of compensating him should he emerge successful on appeal. In Machira t/a Machira & Co Advocates versus East African Standard [20021 KEI-IC 1116'(KLR) the court held as follows; "To be obsessed with the protection of an appellant or intending appellant in total disregard flitting mention of the so far successful opposite party is to flirt with one party as crocodile tears are shed for the other, contrary to the sound principle for exercise of a judicial discretion. The ordinary principle is that a successful party is entitled to the fruits of his judgment or of any decision of the court giving hint success at any stage. This is trite knowledge. This is one of the fundamental procedural values which is acknowledged and normally must be put in effect by the way we handle applications for stay of further proceedings or execution, pending appeal. Of course, in the application of that ordinary principle, the court must have its sight firmly fixed on upholding the overriding objective of the rules of procedure or handling civil cases in the courts, which is to do justice in accordance with the law and to prevent abuse of the process of the court. This means that in whatever we do n civil courts, we must so far as is practicable, ensure that the parties fight it out on level ground on equal footing, attempts to minimize and save costs, ensure expeditious and fair disposal of the case in hand, allotting to every case appropriate share of judicial resources as account is taken of the need to allot those resources to other case, and the way a case is dealt with must be proportionate to (a) the amount of money involved, (b) the importance of the case, (c) the complexity of the issues, and (d) the financial position of the respective parties. In the excise of any power under any rule, or in its interpretation, we must strive to give help to the court in furtherance of the overriding objective to yield justice and fairness. So, injustice and fairness, when a party has been found by a court to be in right at whatever stage in the litigation, he should ordinarily have access to the consequences of that judicial finding and decision and enjoy his rights as so found and determined Any subsequently decision of the court which tends to impede the normal flow of justice, by suspending the enjoyment of the consequential benefits of one's success can only be rendered in exceptional circumstances after an exercise of great caution and finding that suspension is necessary in justice and fairness. In this regard, this process means that in order for unsuccessful party to obtain suspension of further proceedings, or execution, he must satisfy the court on affidavit or some other proper evidential material, that substantial loss may result of him out of all proportions in relations of justice and fairness, unless suspension or stay is ordered and the parties' positions so regulated and ordered that injustice is averted. In attempting to convince a court that substantial is likely so that whatever he intends to achieve by his intended recourse to some other authority will be nugatory if ultimately, he prevails, the applicant is under a duty to do more than merely repeating to the court words of the relevant statutory rule or general words used in some judgment or ruling of a court in a decided case cited as judicial precedent to guide. It is not enough merely to state that substantial loss will result, or that the appeal if successful will be rendered nugatory. That will not do. 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 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(e.g appeal or intended appeal...” In Nguruman Limited v Jan Bonde Nielsen & 2 Others [20141 KECA, the Court Appeal held as follows with regards to orders restraining registered proprietors of land; "It must be remembered that it is a serious thing to restrain a registered proprietor of a property over what is undeniably his unless there are justifiable grounds to do so'. Finally, the application by the applicants is silent about security.. This is fatal to the application. The application is for dismissal. In John Kinoti t/a Mwigo Enterprises v Parkway Investment Limited & another [2081 eKLR where the learned judge J. Kamau stated: "Notably, the three (3) requisite conditions for granting a stay of execution can be found in To succeed under order 42 Rule 6 of Civil Procedure Rules, 2010, an applicant must demonstrate all the following ingredients: - 1. That he will suffer substantive loss if the order of stay was not granted; 2. That he had filed his application for a stay of execution timeously; and 3. That he was willing to provide security. As the Respondent rightly pointed out, the Appellant did not demonstrate that the aforesaid three (3) conditions obtained in his case. On that ground alone, this court agreed with them that this application must fail. In Charles Kariuki Njuri v Francis Kimaru Rwara (suing as Administrator of Estate of Rwara Kimaru alias Benson Rwara Kimaru (Deceased) 120201 KEELC 122(KLR) the court held as follows; On the last condition as to provision of security, I find that Order 42 Rule 6 (2) (b) of the Civil Procedure Rules stipulate in mandatory terms that the third condition that a party needs to fulfil so as to be granted the stay order pending Appeal is that (s)he must furnish security. The Applicant has pledged his willingness to deposit the title deed for the suit land with the Court as security for due performance of any decree that may be binding on him. In the case of Aron C. Sharma vs. Ashana Raikundalia T/A Rairundalia & Co Advocates the court held that: "The purpose of the security needed under Order 42 is to guarantee the due performance of such decree or order as may ultimately be binding on the Applicant It is not to punish the judgment debtor Civil process is quite different because in civil process the judgment is like a debt hence the Applicants become and are judgment debtors in relation to the respondent. That is why any security given under Order 42 rule 6 of the Civil Procedure Rules acts as security for due performance of such decree or order as may ultimately be binding on the Applicants. I presume the security must be one which can serve that purpose. " In view of the foregoing, the respondent submits that the application lacks merit and should be dismissed with costs. I have considered the application and the submissions on record. The law governing the grant of orders for a stay of execution pending appeal is codified under Order 42 Rule 6 (1) and 2 of the Civil Procedure Rules, which stipulates as follows: -1.No appeal or second appeal shall operate as a stay of execution or proceedings under a decree or order appealed from except appeal case of 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 the application being made, to consider such application and to make such order thereon as may to it seems just, and any person aggrieved by an order of stay made by the court from whose decision the appeal is referred may apply to the appellate court to have such order set aside.2.No order for a stay of execution shall be made under sub-rule (1) unless—3.(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. The above provision requires the Applicant seeking orders for a stay of execution to establish that he has a sufficient cause for seeking the orders that he stands to suffer substantial loss if the orders are not granted, and lastly, that he is willing to furnish security for the due performance of the decree. In addition to the above conditions, an application for a stay of execution pending appeal must be made without unreasonable delay. The three conditions to be fulfilled can therefore be summarized as follows; a.That substantial loss may result to the applicant unless the order is made. b.Application has been made without unreasonable delay. c.Security as the court orders for the due performance. The Court of Appeal in Butt Vs Rent Restriction Tribunal [1979] stated what ought to be considered in determining whether to grant or refuse a stay of execution pending appeal. The court said that: -a.The power of the court to grant or refuse an application for a stay of execution is discretionary, and the discretion should be exercised in such a way as not to prevent an appeal. b.Secondly, the general principle in granting or refusing a stay is, if there is no other overwhelming hindrance, a stay must be granted so that an appeal may not be rendered nugatory should the appeal court reverse the judge’s discretion. c.Thirdly, a judge should not refuse a stay if there are good grounds for granting it merely because, in his opinion, a better remedy may become available to the applicant at the end of the proceedings.d.Finally, the Court in exercising its discretion whether to grant or refuse an application for stay will consider the special circumstances and its unique requirements. The court in exercising its powers under Order XLI Rule 4(2) (b) of the Civil Procedure Rules, can order security upon application by either party or on its motion. Failure to put security of costs as ordered will cause the order for stay of execution to lapse The first condition that the Applicant should meet is if he will suffer substantial loss if the stay orders are not granted. On what constituted substantial loss, it was explained in the case of James Wangalwa & Another v Agnes Naliaka Cheseto [2012] eKLR: -“No doubt in law, 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… The issue of substantial loss is the cornerstone of both jurisdictions. Substantial loss is what has to be prevented by preserving the status quo because such loss would render the appeal nugatory. It is the courts view that the applicant has failed the first test for grant of stay of execution pending appeal. The application is made more than 3 months after judgment and no explanation is made for this delay. On substantial loss, other than stating that the applicants will suffer substantial loss, no evidence of substance has been adduced by the applicant that they will suffer substantial loss. The application is found without basis and is dismissed with costs. SIGNED BY/FOR: **★ TH E JUDICIAR Y O F KENY A ★** **HON. JUSTICE ANTONY O. OMBWAYO** Mombasa Environment and Land Court Environment and Land Court Date: 2026-07-14 17:00:29