https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3816

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT MERU** **ELCL [OS] E014 OF 2023** FULL GOSPEL CHURCHES OF KENYA- THROUGH ITS REGISTERED TRUSTEES………..PLAINTIFF/RESPONDENT ***VERSUS*** M’RUKARIA M’RAMARE AND M’MARETE M’RAMARE [BEING SUED AS THE LEGAL REPRESENTATIVES OF M’RAMARE NKUNGA alias RAMARE NKUNGA]……..……DEFENDANTS/APPLICANTS **RULING** 1. Before me is the Notice of Motion Application dated the 30.03.2026; brought pursuant to the provisions of **Order 42 Rule 6 and Order 51 Rule 1 of the Civil Procedure Rules, 2010; Sections 1A, 1B and 3A of the Civil Procedure Act, Chapter 21 Laws of Kenya;** and wherein the defendants/Applicants *[hereinafter referred to as the applicants]* have sought the following reliefs: 2. ***………………………………………………….Spent*** 3. ***That the Honourable court be pleased to issue an order for the stay of execution of the Judgment/Decree dated 02.10.2024 and all consequential orders herein pending interpartes hearing and determination of this application.*** 4. ***That the Honourable Court be pleased to issue an order for the stay of execution of the judgment/decree dated 02.10.2024, and all consequential orders herein pending the hearing and determination of the Appeal in Nyeri Civil Appeal NO. E259 of 2025: M’rukaria M’ramare And M’marete M’ramare (Being Sued as the Legal Representatives of M’ramare Nkunga Alias Ramare Nkunga) versus Full Gospel Churches of Kenya- Through its Registered Trustees*** 5. ***That the costs of this application be pro*vide*d for.*** 6. The instant Application is anchored on various grounds which have been enumerated in the body thereof. The grounds are: The plaintiff/Respondent sued the Applicants *vide* the instant suit; the suit was heard and determined *vide* Judgment delivered on the 02.10.2024; the Judgment was in favour of the Respondent; the Applicants felt aggrieved and thereafter lodged a Notice of Appeal on the 09.10.2024; the Applicants have further filed the substantive appeal namely; Nyeri Civil Appeal No. E259 of 2025; the appeal is pending hearing and determination; and the appeal raises pertinent legal issues and thus same is arguable. 1. Additionally, the Applicants have posited thus: The Respondent herein has since commenced the process of execution of the Judgment/decree of the court; the Respondent filed an application for lifting of the inhibition; the application under reference was duly allowed *vide* ruling rendered on the 24.03.2026; the lifting of the orders of inhibition shall facilitate the transfer of the suit property to the Respondent; and the imminent transfer of the suit property to the Respondent shall render the appeal nugatory. 2. The application is supported by the affidavit sworn by the applicant on even date. The deponent of the supporting affidavit has annexed four [4] sets of documents *inter alia*; a copy of the Judgment delivered on the 02.10.2024; copy of the Notice of Appeal; and copy of the application by the Applicants which sought the lifting of the inhibition. Moreover, the deponent of the supporting affidavit has re-affirmed the grounds contained in the body of the application. 3. The Respondent has opposed the application *vide* Replying affidavit sworn on the 12.05.2026. The replying affidavit has been sworn by one, Bishop Gerald Mugo Wachira. The deponent of the replying affidavit has averred thus: The applicant herein has been aware of the Judgment and decree of the court; the applicant did not file the application timeously; the application has been filed with unreasonable and unexplained delay; the applicant is merely intent on frustrating the transfer of the suit property; the application reeks of mala-fides; and the application is *devoid* of merits. 4. In addition, the deponent of the replying affidavit has also posited that: The application for stay is *devoid* of basis; the Notice of Appeal which is being relied upon was served outside time; the Notice of Appeal is not valid; and the applicants’ have never filed any application for leave to regularize the Notice of Appeal. 5. Furthermore, the deponent of the replying affidavit has also contended that the Applicants have not met/satisfied the requisite conditions governing the issuance of an order of stay of execution pending appeal. In particular, it has been averred that the Applicants’ have not established that substantial loss is likely to occur, if the orders sought are not granted. 6. The application came up for directions on the 28.05.2026, whereupon the advocates for the parties sought directions on the hearing and disposal of the application. Moreover, the learned counsel for the parties intimated that same were desirous to file and exchange written submissions. To this end, the court proceeded and issued directions. The directions were: The Applicants shall file and serve written submissions within 7 days from the date of the directions; and the Respondent shall file and serve written submissions within 7 days from the date of service. 7. The Applicants filed written submissions dated the 21.05.2026 and wherein the applicants’ have highlighted four [4] key issues. The issues highlighted are: The Applicants have filed/lodged an appeal against the impugned Judgment; the appeal which has since been lodged is arguable; the Applicants shall be disposed to suffer substantial loss; and the application has been mounted without unreasonable delay. 8. Thereafter, learned counsel for the Applicants has cited and referenced various decisions to buttress the arguments. The decisions are: **Nakuru Canners Limited and another versus Nyamwea and 5 others [2026] KEELC; Rhoda Mukuma versus John Abuoga [1988] eKLR; William KipKinyor Rotich versus Paul Kiprop Karonei [2018] EKLR and Arun C Sharma Versus Ashana Raikudaria T/a Raikudaria and Company Advocates and 2 others [2014] eKLR.** 9. Flowing from the foregoing, learned counsel for the Applicants’ has invited the court to find and hold that the Applicants have established the requisite conditions and met the threshold to warrant the grant of the orders of stay of execution. 1. The Respondent filed written submissions dated the 26.05.2026 and wherein learned counsel has highlighted and canvassed four [4] key issues. The issues are: the application has been mounted with unreasonable and unexplained delay; the application is premature and misconceived insofar as the Notice of Appeal was served contrary to the **Court of Appeal Rules, 2022**; the Applicants have not established the conditions to warrant the grant of orders of stay of execution; and the application is merely intended to frustrate the Respondent from actualizing the fruits of the Judgment and the Decree of the Court. 2. Thereafter, learned counsel for the Respondent has cited various decisions including: **Kenya Shell limited versus** **Benjamin Karuga Kiburu and another [1986] eKLR; Ali Abdala Dumy and others versus Mohammed Abdi Shiekh and others [2015] KEHC; and Mwaingo Construction 2010 Limited versus Mombasa Water Products Limited [2025] KECA,** respectively. 3. *In a nutshell,* learned counsel for the Respondent has implored the court to find and hold that the Applicants have not met the threshold to warrant the orders sought. On the contrary, it has been submitted that the application before the court is defeated by the inordinate delay and thus the doctrine of laches ought to be invoked. 4. Having reviewed the Notice of Motion Application; the supporting affidavit thereto; the replying affidavit in opposition thereto; and upon taking into account the written submissions filed by/on behalf of the respective parties; and bearing in mind the provisions of **Order 42 Rule 6 [1] and [2] Of the Civil Procedure Rules, 2010;** three [3] key issues crystalize for consideration and determination. The issues are: Whether the Applicants’ have established sufficient cause; whether the subject application was mounted with unreasonable and unexplained delay or otherwise; and whether the Applicants have demonstrated a likelihood of substantial loss occurring, if the orders sought are not granted. 5. Regarding the first issue, it is imperative to underscore that the existence of an appeal or a second appeal by /and of itself does not constitute stay of execution. However, the court appealed from or the court appealed to, is bestowed with discretion to grant an order of stay of execution pending the hearing and determination of an appeal, subject to proof of sufficient cause. It is therefore incumbent upon every applicant seeking an order of stay, the Applicants herein not excepted, to demonstrate sufficient cause. [See the provisions of **Order 42 Rule 6[1] of the Civil Procedure Rules, 2010].** 6. Have the Applicants demonstrated sufficient cause? The Applicants have indicated that same felt aggrieved with the Judgment and the consequential decree of the court; and thereafter same proceeded to and filed a Notice of Appeal. It has been indicated that the Notice of Appeal was filed within 7 days of the delivery of the Judgment. Suffice it to state that the Notice of Appeal in question was therefore filed within the timelines set by **Rule 77 of the Court of Appeal Rules, 2022.** 7. I am alive to the arguments by learned counsel for the Respondent that though the Notice of Appeal was filed within time, same was served outside the stipulated duration. To this end, learned counsel for the Respondent has submitted that the Notice of Appeal is therefore invalid and by extension the appeal [if any] is incompetent. 8. Additionally, learned counsel for the Respondent has submitted that the Applicants herein have not filed any application to seek leave of the Court of Appeal or otherwise to deem the Notice of Appeal as duly served. Simply put, the counsel for the Respondent seems to be inviting this court to engage with the question of the validity of the Notice of Appeal and by extension the competence of the appeal [if any] before the Court of Appeal. 9. I beg to state that the issue as to whether or not, the Notice of Appeal was served within the set timelines; whether or not the Notice of Appeal is invalid; and whether or not the appeal [if any] before the Court of Appeal is competent or otherwise, do not fall within the jurisdictional remit of this court. The said submissions are premised on misapprehension of the law. 10. Be that as it may, I wish to point out that all that this court is called upon to interrogate is whether or not a Notice of Appeal has been filed. This is the import of **Order 42 Rule 6 [4] of the Civil Procedure Rules, 2010**. I do confirm that a Notice of Appeal has been filed. In any event, the fact that a Notice of Appeal was filed is conceded. 11. Taking into account, the provisions of order 42 rule 6 [4] of the civil procedure rules, 2010; and bearing in mind that the competence or otherwise of the Notice of Appeal does lie within my jurisdiction, it is my finding and holding that the Applicants have established sufficient cause. Nevertheless, it must be clarified that establishment/ proof of sufficient cause alone, is not enough to warrant the issuance of an order of stay of execution. Suffice it to state that the applicant is still enjoined to venture forward and establish the conditions prescribed *vide* **Order 42 Rule 6 [2] of the Civil Procedure Rules, 2010.** 12. The next issues that falls for determination is whether the application has been mounted with unreasonable and unexplained delay. To begin with, it is common ground that the Judgment was delivered on the 02.10.2024. Furthermore, the Judgment under reference commanded the Applicants to execute the transfer instruments within two months from the date of delivery. 13. There is no gainsaying that the Applicants did not comply. The failure to comply subsisted for more than 17 months. The Respondent was thereafter constrained to and filed an application dated the 13.03.2026 and wherein the Respondent sought, *inter alia*; the lifting of the inhibition and execution of the transfer instruments by the Deputy Registrar. The said application was heard and allowed *vide* ruling rendered on the 24.03.2026. 14. Was the application for stay mounted timeously and with due promptitude? It is apparent that the application for stay has been filed after more than 18 months from the date of the Judgment/decree sought to be stayed. The duration under reference is not only unreasonable but inordinate. Worse still, the Applicants herein have neither deemed it appropriate to proffer any reason or explanation why the application was never filed in good time. The Applicants are silent on the delay. 15. Furthermore, it is not lost on me that the Applicants herein are pretending that the application was not filed with undue delay. It is paramount to refer to ground [6] of the application; and paragraph [9] of the supporting affidavit. However, which chronometer the Applicants are using, it is common ground that the delay, which has not been accounted for, is *inordinate*. 16. What constitutes inordinate delay cannot be defined exhaustively. However, even a delay by 7 days, which is not explained can be deemed to be inordinate. This position was underscored in the case of **Andrew Kiplagat Chemaringo v Paul Kipkorir Kibet [2018] KECA 701 (KLR**) The Court stated thus: **“[*12].The law does not set out any minimum or maximum period of delay. All it states is that any delay should be satisfactorily explained. A plausible and satisfactory explanation for delay is the key that unlocks the court’s flow of discretionary favour. There has to be valid and clear reasons, upon which discretion can be favorably exercisable.”*** 1. To my mind, the Applicants were enjoined to isolate the duration of the delay and thereafter to account for the same to the satisfaction of the court. The Applicants have failed to do so. In this regard, I find and hold that the application beforehand is defeated by the Doctrine of *Laches [*See the holding of the Court of Appeal in the case of **Chief Land Registrar & 5 others v Koech & 3 others [2018] KECA 27 (KLR)**]. 2. The last issue for determination relates to whether the Applicants have proven/established that substantial loss is bound to occur. It is settled law that that substantial loss is the key pillar or cornerstone upon which an order of stay of execution is premised. To this end, it is incumbent upon every applicant to implead substantial loss as a ground in the application for stay of execution; and thereafter to substantiate the loss *vide* affidavit evidence. 3. Further, and in addition, it is common ground that evidence of substantial loss must be express and explicit. The evidence ought not be to inferred or implied. It is critical for substantial loss to be proven, nay, substantiated. 4. In the case of **Kenya Shell Limited v Benjamin Karuga Kibiru & anorther [1986] KECA 94 (KLR)** , the Court of Appeal addressed the position and stated thus: ***‘It is usually a good rule to see if order XLI rule 4 of the Civil Procedure Rules can be substantiated. If there is no evidence of substantial loss to the applicant, it would be a rare case when an appeal would be rendered nugatory by some other event. Substantial loss in its various forms, is the corner stone of both jurisdictions for granting a stay. That is what has to be prevented. Therefore, without this evidence it is difficult to see why the Respondents should be kept out of their money.*** 1. Have the Applicants established that substantial loss is likely to occur? I beg to highlight that the applicants’ herein have neither adverted to nor impleaded substantial loss in the body of the application. Having failed to implead substantial loss, one wonders how the Applicants’ would want to prove that which they have not impleaded. 2. Secondly, it is also common ground that the Applicants’ have also not averred to the question of substantial loss in the supporting affidavit. There is no express statement or deposition to that effect. In the absence of such deposition, then the Applicants herein are deprived of the key condition that underpins the grant of an order of stay of execution pending an Appeal. 3. Finally, I wish to point out that the only reason that has been adverted to by the Applicants is the fear or apprehension that the decree is likely to be executed; and the suit property shall be transferred to and in the name of the Respondent. What I hear the Applicants to be complaining about is the execution of the lawful decree of the Court. 4. I wish to point out that the decree of the court is a lawful decree. Furthermore, the decrees are issued for purposes of execution and implementation, unless there exist a justifiable basis to withhold execution. In this case, the Applicants have not established any justifiable or exceptional basis to withhold execution. 5. Additionally, it is imperative to state that execution by and of itself, cannot create substantial loss. There must be certain state of affairs, which must be pleaded and established, to found substantial loss. [See the holding in **Butt v Rent Restriction Tribunal [1979] KECA 22 (KLR)].** **Conclusion** 1. It was incumbent upon the Applicants’to prove and satisfy the requisite conditions underpinning the grant of an order of stay of execution. The conditions to be satisfied are clearly provided for *vide* **Order 42, rule 6 [1] and [2] of the Civil Procedure Rules [2010].** 2. The Applicants have failed. **Final orders:** 1. Flowing from the discussion in the body of the ruling, there is no gainsaying that the subject application is *devoid* of merits. It is thus a suitable candidate for dismissal. 2. In the premises, the final orders of the court are: 3. ***The Application dated 30.03.2026 be and is hereby Dismissed.*** 4. ***Costs of the Application be and are hereby awarded to the Respondent.*** 5. ***The costs in terms of clause [ii] above shall be agreed upon and in default be taxed in the conventional manner.*** 6. It is so ordered. **DATED, SIGNED AND DELIVERED AT MERU THIS 18TH DAY OF JUNE, 2026** **OGUTTU MBOYA, FCIArb; CPM [MTI].** **JUDGE** **In the presence of:** Court Assistant: Zakayo Ms. Nyokabi for the Defendants/Applicants. Mrs. Mutegi for the Plaintiff/Respondent.