https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4055

 **REPUBLIC OF KENYA** **ENVIRONMENT AND LAND COURT AT NAIROBI** **ELC CIVIL SUIT NO E113 OF 2025** **ANDREW MURIUKI…………………………………..APPELLANT/APPLICANT** **=VERSUS=** **THOMAS KARIUKI………………………………………………RESPONDENT** **RULING** 1. By a Notice of Motion dated 24th June 2025, brought under Order 42 Rule 6 Order 51 Rules 1, 3, 4 and 10 of the Civil Procedure Rules and Sections 1A, 1B and 3A of the Civil Procedure Act, the Applicant seeks the following orders: 2. ***Spent.*** 3. ***Spent.*** 4. ***THAT there be a stay of execution of the ruling and order made by the Tribunal in BPRT Nairobi in Tribunal case No E021 of 2023 pending the hearing and final determination of an Appeal.*** 5. ***THAT the cost of this application be in the cause.*** 6. The application is based on the grounds appearing on its face together with the supporting affidavit of Andrew Muriuki, sworn on even date. **THE APPLICANT’S CASE.** 7. The deponent averred that, being dissatisfied with the ruling delivered on 26th May 2026, he filed a Memorandum of Appeal dated 24th June 2025, which is pending for hearing and determination. 8. The deponent contends that he has an arguable appeal and that, without a stay, the Respondent will commence execution, thereby rendering the appeal nugatory. **THE RESPONDENT’S CASE** 1. The Respondent filed a replying affidavit in opposition to the application. Upon perusal of the affidavit, it is evident that it is sworn and signed on 25th September 2025 by Diria Abdi Ahmed, who is neither the Respondent nor has he disclosed the capacity in which he swears the affidavit. No authority has been exhibited to demonstrate that he is authorized to depose to matters on behalf of the Respondent. Accordingly, I find that the replying affidavit is incompetent and it is hereby struck out. Consequently, the application remains unopposed. 2. The application was canvassed by way of written submissions. **THE APPELLANT/APPLICANT’S SUBMISSIONS** 1. The Applicant filed his submissions dated 14th March, 2026. On behalf of the Applicant, Counsel outlined the following issues for the Court’s determination: *a)* *Whether this Honourable Court ought to exercise its discretion and grant a stay of execution pending the hearing and determination of this application.* *b) Whether the Appellant/Applicant should pay the costs of this application*. 1. Regarding the first issue, Counsel submitted that the Court has discretion to grant a stay of execution of a decree pending the hearing and determination of the appeal. To support this point, reliance was placed on the case of **Butt v Rent Restriction Tribunal (1979) KECA 22 (KLR).** Further reliance was placed on Order 22 of the Civil Procedure Rules. Counsel addressed the applicable principles under Order 42, Rule 6 of the Civil Procedure Rules. 2. Counsel submitted that the application was filed without undue delay. 3. Regarding substantial loss, Counsel submitted that if an order of stay is not granted, the Respondent would dispose of part of the Appellants' tools of trade, which it will not recover in the event that the appeal is successful. 4. Counsel urged the Court to maintain the status quo pending the hearing and determination of the appeal. Counsel argued that if a stay is not granted, he would suffer irreparable loss as the Respondent would commence execution, thereby rendering the appeal nugatory. 5. Regarding the second issue, Counsel urged the Court to exercise its discretion under Section 27 of the Civil Procedure Act. Further reliance was placed on the case of **Jasbir Sing Rai & 3 others v Tarlochan Sing Rai eklr and Cecilia Karuru Ngayu v Barclays Bank of Kenya & another 2016 eklr**. 6. As at the time of writing this ruling, the Respondent had not filed his submissions as directed. **ANALYSIS AND DETERMINATION** 1. Having considered the application, the respective affidavits, and the Applicant’s submissions, the issue for determination is whether the Applicants have met the threshold for the grant of a stay of execution pending appeal. 2. **Order 42** **Rule 6(1)** and **(2)** of the **Civil Procedure Rules** state 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 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—*** ***(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.*** 1. The power to grant or deny an application for stay of execution is discretionary. In **Butt v Rent Restriction Tribunal (1982) KLR 417,** the Court of Appeal set out the following guidelines on how a Court should exercise its discretion; ***“The power of the court to grant or refuse an application for stay of execution is a discretionary power. The discretion should be exercised in such a way as not to prevent an appeal. The general principle in granting or refusing a stay is; if there is no overwhelming hindrance, stay must be granted so that an appeal may not be rendered nugatory should that appeal court reverse the judge’s decision. 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 Applicants at the end of the proceedings. The court in exercise of its discretion whether to grant or refuse an application for stay will consider the special circumstances of the case and its unique requirements.”*** 1. Similarly, in **RWW vs EKW (2019) eKLR,** the Court held that; ***“…the purpose of an application for stay of execution pending an appeal is to preserve the subject in dispute so that the rights of the appellant who is exercising the undoubted right of appeal are safeguarded, and the appeal, if successful, is not rendered nugatory. However, in doing so, the court should weigh the right against the success of a litigant who should not be deprived of the fruits of his/her judgment. The court is also called upon to ensure that no party suffers prejudice that cannot be compensated by an award of damages.”*** 1. This Court is therefore called upon to balance both the rights of the successful party, so as not to hinder it from the fruits of its judgment, and those of the Appellant, whose Appeal may succeed and be rendered nugatory if a stay of execution is not granted. 2. The purpose of a stay of execution is to preserve the substratum of the case. In **Consolidated Marine vs Nampijja & Another Civil App No. 93 of 1989 (Nairobi),** the Court held that; ***“The purpose of the application for stay of execution pending appeal is to preserve the subject matter in dispute so that the right of the appellant who is exercising his undoubted right of appeal is safeguarded and the appeal, if successful, is not rendered nugatory.”*** 1. The Court will now determine whether the Applicant has satisfied the conditions upon which the orders can be granted. Regarding the first condition, that substantial loss may result unless stay orders are granted, the Applicant should not only state that he is likely to suffer substantial loss but must prove that he will suffer such loss if stay orders are not granted. 1. In **Charles Wahome Gethi vs Angela Wairimu Gethi (2008) eKLR,** the Court of Appeal held that; ***“….it is not enough for the Applicants to say that they live or reside on the suit land and they will suffer substantial loss. The Applicants must go further and show the substantial loss that the Applicants stand to suffer if the Respondent executes the decree in this suit against them.”*** 1. What constitutes substantial loss was addressed by the Court of Appeal in the case of **Mukuma vs Abuoga (1988) KLR,** where the Court held that; ***“Substantial loss is what has to be prevented by preserving the status quo because such loss would render the Appeal nugatory.*** 1. In the matter at hand, the Applicant contends that execution and the possible sale of his tools of trade would cause irreparable harm. The judgment directed the Appellant to pay rent arrears of Kshs 1,775,900. The Applicant is apprehensive that if a stay is not granted, the Respondent will commence execution proceedings. 2. Based on the evidence on record, I find that the Respondent will suffer irreparable loss if a stay of execution is not granted. 3. In an application for stay of execution pending Appeal, an Applicant must also satisfy the Court that the application has been made without unreasonable delay. It is not in dispute that judgment was delivered on 26th May 2025. The present application was filed in Court on 24th June 2025. I find that the application was filed without unreasonable delay 4. Regarding the last condition on the provision of security for costs, Order 42, Rule 6(2)(b) of the Civil Procedure Rules is couched in mandatory terms, requiring the Applicant to furnish security for the performance of the order or decree. In A**run C Sharma vs Ashana Rakundalia T/A Raikundalia & Co. Advocates & 2 Others (2014) eKLR,** the Court held that; ***“The purpose of the security under Order 42 is to guarantee 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 applicant 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 a security for the 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.”*** 1. The Applicant has not expressed their willingness to provide security for the due performance of the decree. However, the court can direct him to do so. 2. In the end, I find that the Applicant has met the threshold for the grant of a stay of execution pending appeal. 3. The upshot of the foregoing is that the application dated 24th June 2025 is allowed in the following terms: ***a) A stay of execution of the Tribunal ruling is hereby granted pending the hearing and determination of the Appeal.*** ***b) The Applicant shall deposit half the decretal sum in a joint interest-earning account in the names of the parties' advocates within 45 days from the date of this ruling.*** ***c) In default of compliance with prayer (b) above, the stay shall lapse automatically.*** ***d) Costs of the application will abide with the outcome of the appeal.*** **RULING SIGNED, DATED, AND DELIVERED VIA MICROSOFT TEAMS THIS 26TH DAY OF JUNE, 2026.** **…………………………………….** **HON. T. MURIGI** **JUDGE** **IN THE PRESENCE OF:** Ms Macharia holding brief for Baraza for the Appellant Court Assistant - Vena