[2024] KEELC 6036 (KLR)

Karungani v Muchai (Environment and Land Appeal E043 of 2023) [2024] KEELC 6036 (KLR) (23 September 2024) (Ruling)

Neutral citation: [2024] KEELC 6036 (KLR)

Republic of Kenya

In the Environment and Land Court at Kakamega

Environment and Land Appeal E043 of 2023

DO Ohungo, J

September 23, 2024

Between

Jeremiah Karungani

Appellant

and

Nancy Njeri Muchai

Respondent

(Being an appeal from the judgment of the Chief Magistrate’s Court at Kakamega (Hon. L Kassan, Chief Magistrate) delivered on 8th December 2023 in Kakamega MCELC No. 998 of 2018)

Ruling

1. By Notice of Motion dated 18th December 2023, the Appellant seeks stay of execution of the judgment delivered by the Subordinate Court on 8th December 2023 in Kakamega MCELC No. 998 of 2018 and the resultant decree, pending hearing and determination of this appeal.

2. The application is supported by an affidavit sworn by the Appellant. He deposed that the orders made by the Subordinate Court in the judgment pose imminent threat to his ownership of the suit property and that there is apprehension of damage of property which have been erected on the suit property. He added that execution would render this appeal nugatory and occasion him irreparable loss and damage.

3. The Respondent opposed the application through a replying affidavit in which she deposed that if the appeal succeeds, her name will be removed from the title and that the suit property will revert to the Appellant. That as a joint owner, she cannot interfere with the title without the Appellant’s knowledge.

4. The application was canvassed through written submissions which both sides duly filed. The Applicant argued that his application satisfies the criteria for granting stay pending appeal and that unless the orders sought are granted, his property rights will be endangered. He therefore urged this Court to grant him the orders sought.

5. On her part, the Respondent argued that the Applicant has not demonstrated substantial loss and that the order of the Subordinate Court requiring registration of the suit property in the joint names of the parties does not pose any risk to the Applicant since no transaction can take place without the Applicant’s consent. She therefore urged the Court to dismiss the application.

6. I have considered the application, the affidavits, the submissions and the authorities cited. The only issue for determination is whether the orders sought ought to be granted.

7. The jurisdiction to grant stay of execution pending appeal is circumscribed within Order 42 rule 6 (1) and (2) of the Civil Procedure Rules, 2010. The rule provides as follows: 6. (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 sub rule (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.

8. The upshot of those provisions is that a litigant seeking stay pending appeal must demonstrate that substantial loss will result to him if stay is not granted, and that the application has been made without unreasonable delay. Such a litigant is also required to give such security as the court may order for the due performance of the decree. See Kenya Power & Lighting Co. Ltd v Kigaita Ngare Unduthu & 36 others [2020] eKLR and Kenya Shell Limited v Benjamin Karuga Kibiru & another [1986] eKLR.

9. As Platt Ag JA (as he then was) stated in Kenya Shell Limited v Benjamin Karuga Kibiru & another (supra), substantial loss is the corner stone of the jurisdiction to grant stay of execution pending appeal. It is virtually impossible for such an application to succeed if an applicant fails to demonstrate that he will suffer substantial loss if stay is not granted.

10. A perusal of the judgment appealed from shows that the Subordinate Court ordered registration of the suit property in the joint names of the parties to this appeal. It is that eventuality that the Applicant is apprehensive of. The question that must be answered is whether such joint registration will cause substantial loss to the Applicant.

11. It is not just any loss that warrants granting stay of execution pending appeal. It must be substantial loss. The word substantial means significant or large and having substance. Thus, it should be loss that is tangibly above normal loss. After all, in an application such as the present one, the Applicant is up against a successful litigant and is seeking to postpone execution of a valid decree.

12. The Applicant has argued that unless the orders sought are granted, his property rights will be endangered. I suppose the danger he refers to means that the Respondent will be registered as a joint proprietor. I am not persuaded that such an eventuality amounts to substantial loss. Proprietorship of the suit property cannot move beyond the parties to this appeal without their joint knowledge and active participation. If anything, enforcement of the decree may preserve the suit property pending determination of the appeal.

13. Although the Applicant has demonstrated the existence of an appeal and that the present application was filed without unreasonable delay, he has failed to surmount the cardinal test of establishing substantial loss.

14. I find no merit in Notice of Motion dated 18th December 2023, and I therefore dismiss it with costs to the Respondent.

DATED, SIGNED, AND DELIVERED AT KAKAMEGA THIS 23RDDAY OF SEPTEMBER 2024. D. O. OHUNGOJUDGEDelivered in open court in the presence of:No appearance for the AppellantNo appearance for the RespondentCourt Assistant: M Nguyayi