https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4696

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT** **AT MOMBASA** **ELCA NO. E043 OF 2025** **MOHAMED NASSOR HASSAN .........APPELLANT/APPLICANT** **VERSUS** **ZAEEM NASSER AHMED (**Suing as the Administrator of the Estate of the Late **KHADIJA SALEH SHRUTI ................... 1ST RESPONDENT** **ALFRED NYAMAI ........................................... 2ND RESPONDENT** **JIWA PROPERTIES LTD. ............................... 3RD RESPONDENT** **RULING** 1. By the Notice of Motion dated 11th July 2025, Mohamed Nassor Hassan (the Appellant) prays for an order of stay of execution of the Judgment delivered on 4th July 2025 in Mombasa CMELC Case No. 85 of 2019 pending the hearing and determination of the Appeal. 2. The application which is supported by an Affidavit sworn by the Appellant is premised, inter alia, on the grounds that: 3. **On 4th July 2025, the trial Court delivered a judgment in favour of the 1st Respondent and ordered the Appellant to demolish the house and give vacant possession to the 1st Respondent and pay damages of Kshs 1,000,000/=;** 4. **The Appellant is aggrieved by the judgment and has preferred an Appeal to this Court;** 5. **The Appellant has constructed a storeyed building on the suit land with heavy investment thereon which he relies on for his upkeep;** 6. **The Appeal raises triable issues of law and fact with a likelihood of success;** 7. **That the 1st Respondent is hell bent to execute the judgment which if executed shall render the Appeal nugatory as the subject matter will have been destroyed or interfered with; and** 8. **The Respondent shall suffer no prejudice if the application is allowed as any cost suffered shall be remedied in damages and costs.** 9. Zaeem Nasser Ahmed (the 1st Respondent) is opposed to the grant of the orders sought. In his Replying Affidavit sworn on 4th November 2025, the 1st Respondent avers that the application is frivolous, baseless, mischievous and a grave abuse of the Court process. It is the 1st Respondent’s case that the trial Court did find that the 2nd Respondent was the owner of the house without land and as such the Appellant is a trespasser and cannot claim to have any title to the suit property. 10. The 1st Respondent further avers that the Appellant ought to have conducted due diligence to ascertain the interest of the 2nd Respondent and as such he cannot claim to be an innocent purchaser for value. He further avers that if the orders sought are granted it will be prejudicial to him and the other beneficiaries of the Estate of Khadija Saleh Shruti who have waited for a long time to conclude the succession process. 11. The 1st Respondent denies that any attempt has been made to extract the decree from the trial Court to commence execution as stated by the Appellant. It is the 1st Respondent’s case that should the Court be inclined to grant a stay of execution, the same should be conditional and subject to the Appellant depositing security in the sum of Kshs. 7,220,000/= in an interest earning joint account. 12. I have carefully perused and considered both the application as well as the response thereto. I have similarly perused and considered the submissions placed before the Court by the Learned Counsel for the Appellant. I was unable to find any submissions on the part of the Respondents. 13. By his application before the Court, the Appellant prays for an order of stay of execution of the judgment delivered by the Honorable Gathogo Sogomo, PM on 4th July 2025 in Mombasa CMELC Case No. 85 of 2019 pending the hearing and determination of the Appeal. It is the Appellant’s position that he stands to suffer prejudice if the orders issued by the trial Court are executed as the suit property is his only home and source of livelihood. 14. The 1st Respondent is opposed to the application and avers that the same is frivolous and an abuse of the Court process. It is the 1st Respondent’s case that the trial Court has made a finding that the suit property belonged to the 2nd Respondent. He accused the Appellant of failing to do due diligence before proceeding to erect the building on the suit property. The 1st Respondent further avers that if the orders are granted, the same will be prejudicial to himself and other beneficiaries of the Estate of Khadija Saleh Shruti. 15. Order 42 Rule 6 of the Civil Procedure Rules, 2010 provides as follows: **“(1) No appeal or second appeal shall operate as a stay of execution or proceeding 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—** 1. **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** 2. **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.”** 3. In the Case of ***Butt –vs- Rent Restriction Tribunal (1982) KLR 417,*** the Court of Appeal held thus: 4. **The power of the Court to grant or refuse an application for a stay of execution is a discretionary power. The discretion should be exercised in such a way as not to prevent an appeal.** 5. **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 that appeal Court reverse the judge’s discretion.** 6. **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.** 7. **The Court in exercising its discretion whether to grant [or] refuse an application for stay will consider the special circumstances of the case and unique requirements. The special circumstances in this case were that there was a large amount of rent in dispute and the appellant had an undoubted right of appeal.** 8. **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 own motion. Failure to put security for costs as ordered will cause the order for stay of execution to lapse.”** 9. In the matter herein, the application for stay was made barely seven (7) days after the judgment that is the subject of the Appeal. I had therefore no doubt that the application was made without unreasonable delay. 10. On the aspect of substantial loss, there was again no dispute that the Appellant had constructed a storeyed building on the suit property upon which he resided. Given that the trial Court had ordered the Appellant to demolish the said building and to vacate the suit land forthwith, I was left in no doubt that the Appellant stood to suffer substantial loss in the event the building was demolished and his Appeal herein succeeds. I was also persuaded that if there was any prejudice which the Respondents stood to suffer, the same would effectively be remedied in damages and costs. 11. This Court is at this stage called upon to balance the Appellants right to appeal with the Respondents’ right to enjoy the fruits of their judgment. The Appellant having satisfied the Court that he stands to suffer substantial loss should the Court decline to issue the order of stay, it is my considered view that it will be in the interest of justice that the order of stay be granted subject to the condition that the Appellant deposits security for costs. 12. Accordingly, I find merit in the Motion dated 11th July 2025 and make orders as follows: 13. **There is hereby ordered a stay of execution of the Judgment and decree dated 4th July 2025 pending the hearing and determination of this Appeal.** 14. **The order of stay of execution is conditional upon the Appellant herein depositing the sum of Kshs. 2,500,000/= in a joint interest earning account in the names of the Advocates representing both parties within Forty-Five (45) days from the date hereof. In default the order of stay shall automatically lapse and the 1st Respondent shall be at liberty to execute.** 15. **The costs of this application shall abide the outcome of the Appeal.** 16. It is so ordered. **Ruling dated, signed and delivered in open court and virtually at Mombasa this 23rd day of July, 2026.** **…………………………..** **J.O. OLOLA** **JUDGE** **In the presence of:** a) Ms. Firdaus Court Assistant. b) No appearance for the Appellants c) Mr. Ahmed Advocate for the Respondents