https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7475

Nderi & 2 others v Habib Bank Limited & 2 others (Civil Case 929 of 2004) [2026] KEHC 7475 (KLR) (Civ) (6 May 2026) (Ruling) Neutral citation: [2026] KEHC 7475 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Law Courts) Civil Civil Case 929 of 2004 SN Mutuku, J May 6, 2026 Between Dorothy Wangari Nderi 1st Plaintiff Edward Nderi Marine 2nd Plaintiff Lucy Wanjiru Marine 3rd Plaintiff and Habib Bank Limited 1st Defendant Joseph Muriithi Mwangi 2nd Defendant Stephen Onyango Juma t/a Service Kenya Limited 3rd Defendant Ruling The First Application 1.This Ruling relates to two applications, the Notice of Motion dated 26/11/2025 (First Application) filed by Joseph Muriithi Mwangi (the 2nd Defendant). The First Application seeks the following orders:i.Spent.ii.Spent.iii.Spent.iv.Spent.v.That pending the hearing and determination of the intended Appeal against the Judgment and Decree of this Honourable Court given on 16.10.2025, there be a stay of the said Judgment and Decree given on 16.10.2025 and all consequential orders and proceedings arising therefrom.vi.That pending the hearing and determination of the intended Appeal, this Honourable Court be pleased to grant a temporary order of injunction restraining the Decree Holders/Respondents either by themselves and or through their servants or whatsoever from entering, evicting the Applicant from the Property known as L.R. No. 4480/149 Ngong Town, registering any entries, or effecting any transfers in the register of L.R. No. 4480/149 Ngong Town or in any way interfering with the said property in execution of the judgment and decree of this Court (Hon. Lady Justice Ouya Tabitha Wanyama) delivered on 16.10.2025.vii.That the cost of this application in the cause. sic 2.The 2nd Defendant has by way of his affidavit, averred that Ouya, J. delivered a judgment in the present suit on 16.10.2025 in favour of Dorothy Wangari Nderi, Edward Nderi Marine and Lucy Wanjiru Marine (the 1st, 2nd and 3rd Plaintiffs). That the said judgment in effect cancelled the 2nd Defendant’s title to the property known as L.R. No. 4480/149 Ngong Town (the subject property) thus reverting ownership to the Plaintiffs herein, being legal representatives of the estate of Alfred Marine Nderi (the deceased). 3.The 2nd Defendant has further stated that he is a bona fide innocent purchaser for value, of the subject property, and who is therefore aggrieved by the above decision and is desirous of challenging the same by way of an appeal to the Court of Appeal. That he has lodged a Notice of Appeal to that effect and has similarly applied for copies of the certified typed proceedings and judgment. 4.It is the averment by the 2nd Defendant that an arguable appeal exists, as seen in the memorandum of appeal annexed to the First Application. 5.It is his averment that unless the prayers sought are granted, he is likely to suffer substantial loss and prejudice since the Plaintiffs have threatened to repossess and manage the subject property which will render the intended appeal nugatory. And that the Plaintiffs do not stand to suffer any prejudice in any manner that cannot be compensated by an award of costs. Response to the First Application 6.The Plaintiffs have opposed the First Application by way of a Replying Affidavit sworn by the 1st Plaintiff on 16.12.2025 in which it is deposed, inter alia, that the First Application does not meet the threshold under Order 42, Rule 6 of the Civil Procedure Rules (CPR), for granting a stay of execution pending an appeal. That in particular, the 2nd Defendant has failed to demonstrate the substantial loss he stands to suffer if an order for a stay of execution is declined. That the impugned judgment is sound and proper, with sufficient reasons having been set out to support the ultimate finding therein. That in delivering the judgment, Ouya, J. considered all relevant material that was placed before her and therefore, no arguable appeal exists. 7.The 1st Plaintiff has urged the court to further consider the principle that a successful party is entitled to enjoy the fruits of his or her judgment, and that in the present instance, the First Application is purely intended to delay the Plaintiffs herein from reaping the fruits of their judgment. 8.She has also urged the court to consider that the present suit has been in court for over 20 years, during which time the 2nd Defendant has enjoyed possession and occupation of the subject property whilst also collecting rent from the tenants. That if a stay of execution is granted, the estate of the deceased will suffer irreparable loss while the 2nd Defendant will continue to benefit from the subject property, despite the existing judgment in the Plaintiffs’ favour. 9.The 1st Plaintiff started, further, that should the court be persuaded to grant the order for stay, then the same ought to be conditional upon the deposit of rental income by the 2nd Defendant, in the Judiciary Account, as security pending hearing and determination of the intended appeal. Otherwise, the 1st Plaintiff has urged that the First Application be dismissed with costs. 10.In the 2nd Defendant’s Further Affidavit which is undated, the 2nd Defendants stated that the Plaintiffs herein have threatened to execute the decree and are likely to evict his tenants who are currently occupying the subject property and that the Plaintiffs have indicated by way of letter correspondences, that they have directed the said tenants to make rent payments to the Plaintiffs’ bank accounts. 11.That the above turn of events is a clear pointer that unless a stay of execution is granted as sought, the intended appeal will be rendered nugatory. He stated that he is ready and willing to comply with the orders of the court pertaining to an order for stay. 12.The 2nd Defendant also filed a Supplementary Affidavit sworn on 28.01.2026 in which it is deposed that the present suit did not result in a monetary decree and hence the question of provision of security does not arise. That in any event, the court has discretion to determine the appropriate mode of security to be provided. 13.On the subject of arguability of the intended appeal, it is the 2nd Defendant’s averment that an arguable appeal is not one that necessarily must succeed; rather, all that is required is for a party to demonstrate that such an appeal raises arguable grounds for consideration. That in any event, the court will not be deciding on the merits of the appeal at this juncture. 14.On the subject of rental income, it is the 2nd Defendant’s averment that in pronouncing its judgment in the present suit, the court did not make any orders regarding the rental income arising from the subject property and hence the Plaintiffs cannot be heard to claim that they will suffer financial loss if a stay is granted. 15.The 2nd Defendant has stated that he has had possession of the subject property since purchasing the same, which goes to show that unless the orders sought are granted, he will suffer substantial and irreparable loss. He has also restated his earlier averment that the Plaintiffs have not demonstrated the manner in which they stand to suffer prejudice. 16.In conclusion, the 2nd Defendant has stated that the order for stay, if granted, will help to preserve the subject matter of the appeal, being the subject property. The Second Application 17.The Notice of Motion dated 2.12.2025 constituting the second application, was filed by Habib Bank Limited and Stephen Onyango Juma T/A Service Kenya Limited (the 1st and 3rd Defendants). It is anchored on the grounds set out on its body and in the affidavit of Faith Ndonga, the Legal Manager of Diamond Trust Bank which acquired the 1st Defendant. In it, the 1st and 3rd Defendants are also seeking an order for a stay of execution of the impugned judgment, pending hearing and determination of an intended appeal to the Court of Appeal. 18.The 1st and 3rd Defendants are equally aggrieved by the impugned judgment in its entirety and have already filed a Notice of Appeal in that regard. They have stated that contrary to the finding by Ouya, J. the 2nd Defendant obtained a valid title on the subject property, pursuant to exercise of a statutory power of sale. 19.That the Plaintiffs are currently demanding payment of rental income relating to the subject property, from the 1st Defendant, despite the same having not been awarded in the aforesaid judgment. That the order for stay presently sought will therefore assist in preserving the subject property and will hinder the Plaintiffs from illegally executing the decree arising from the impugned judgment. They have urged the court, in the interest of justice, to allow the Second Application as prayed. Response to the Second Application 20.The 1st Plaintiff swore a Replying Affidavit on 16.12.2025, on behalf of all the Plaintiffs, in opposition to the Application. The 1st Plaintiff has reiterated that the learned Judge was right in her reasoning and finding arrived at in the present suit and hence no proper appeal exists. That the 1st and 3rd Defendants, like the 1st Defendant, have not met the threshold for grant of a stay of execution. 21.The 1st Plaintiff has further stated that should the court ultimately be inclined to grant a stay, then it would be prudent for a condition to be set, that all rent collected and payable from the subject property be deposited in a joint interest earning account or in the Judiciary Account, pending hearing and determination of the intended appeal. That in so doing, the court will strike a balance between the competing interest of the parties. Otherwise, the court should not hesitate to dismiss the second application. Written Submissions 22.The two (2) applications were canvassed simultaneously, by way of written submissions. The 2nd Defendant has anchored his submissions on the decision in Elena Doudoladova Korir v Kenyatta University [2014] KEIC 124 (KLR) where the conditions pertinent to granting a stay of execution pending appeal were set out. 23.The 2nd Defendant has proceeded submitted that he has met the threshold for an order of a stay of execution of the impugned judgment since the First Application has been brought without unreasonable delay and that sufficient cause, in particular, has been shown by way of substantial loss, citing, inter alia, the case of Cecilia Wanja Waweru v Jackson Wainaina Muiruri & another [2014] KECA 492 (KLR) where it was held that what constitutes inordinate delay varies from one case to another; and the case of James Wangalwa & Another v Agnes Naliaka Cheseto [2012] KEHC 1094 (KLR) on what constitutes sufficient cause. 24.The 2nd Defendant has reiterated that unless the prayers sought are granted, he will certainly lose possession of the subject property, and consequently, his primary source of livelihood, the rental income. 25.On the condition of provision of security, it is the 2nd Defendant’s submission that while the decree issued in the present suit is non-monetary in nature, he remains willing to abide by the conditions of the court in granting a stay of execution. 26.Regarding the injunctive prayer sought, it is the 2nd Defendant’s submission that he has satisfied all the conditions laid out in the renowned Giella v Cassman Brown & Co. Limited (1973) E. A. 358 where the Court of Appeal laid out the principles for consideration in determining an application seeking an interlocutory injunction. 27.He submitted that he has established a prima facie case, in that the intended appeal raises arguable grounds as seen in the draft memorandum of appeal presented to court. He submitted that at this stage of the proceedings, the court is not concerned with the merits or otherwise of an appeal, as stated by the Court of Appeal in Kamau Mucuha v Ripples Ltd [1993] KECA 82 (KLR) when that Court reasoned that in determining an application seeking an injunction pending appeal, the court is not required to make a determination on whether the trial court acted correctly or otherwise. 28.On the question of irreparable harm, the 2nd Defendant has contended that if the injunctive order sought is denied, he will suffer irreparable harm that cannot be adequately compensated by an award of damages. He has relied on Pius Kipchirchir Kogo v Frank Kimeli Tenai [2018] KEELC 2424 (KLR) in which the court emphasized the importance of a demonstration of irreparable harm in an application of such nature. 29.Lastly and on the balance of convenience principle, the 2nd Defendant has contended that the balance of convenience tilts in his favour, thereby necessitating an interlocutory injunction pending the intended appeal. 30.The 1st and 3rd Defendants filed joint submissions. They cited Order 42, Rule 6(2) of the CPR which sets out the conditions to be met in granting a stay of execution and submitted that the Second Application has been timeously filed, thereby satisfying the first condition. 31.They borrowed from Antoine Ndiaye v African Virtual University [2015] KEHC 6783 (KLR) on the condition of substantial loss, and argued that they stand to suffer substantial loss if their application fails, since the Plaintiffs are intent on recovering rental income from them in respect of the subject property, notwithstanding the fact that the impugned judgment did not make any such order against them and that they may be compelled to pay a colossal sum that may not be recoverable if their appeal succeeds. 32.As relates to the third condition, their collective argument is that no monetary award was made to the Plaintiffs and hence the rental income being purportedly claimed by the Plaintiffs cannot form a basis for security for the due performance of the decree and that security can only be based on the costs awarded to the Plaintiffs in the suit. 33.In a rejoinder, the Plaintiffs, who contemporaneously addressed the two (2) applications by way of their submissions dated 23.02.2026, have contended that the respective Defendants ought to satisfy the conditions for a stay of execution. The Plaintiffs placed reliance on the cases of James Wangalwa & Another v Agnes Naliaka Cheseto [2012] KEHC 1094 (KLR) and Kenya Shell Limited v Benjamin Karuga Kibiru & another [1986] KECA 94 (KLR) submitted that substantial loss forms the cornerstone of an application seeking a stay of execution. That since execution is a lawful process, it is incumbent upon an applicant to demonstrate by way of credible material, the manner in which he or she stands to suffer substantial loss and the appeal rendered nugatory, if a stay is denied. That in the present instance, the Defendants have neither discharged the burden of proof on substantial loss nor demonstrated that they are at risk of being dispossessed of the subject property. 34.On the issue of provision of security, it is the Plaintiffs’ joint submission that contrary to the averments made by the respective Defendants, the fraudulent transfer of the subject property occasioned them loss of income for over 21 years during pendency of the suit, thereby necessitating an order that any rental income received ought to be deposited in court or in a joint interest earning account for safe custody, pending hearing and determination of the intended appeals. 35.The Plaintiffs argued, further, that no material has been presented before the court to demonstrate that any sums deposited will not be refunded should the appeals succeed and maintained that there is no reason for granting the prayers sought in the respective applications and that two applications ought to be dismissed with costs to the Plaintiffs, with an alternative prayer that should the court be inclined to grant a stay, then the same ought to be conditional on the deposit of sufficient security by way of all rental income so far collected. Analysis and Determination 36.I have considered the rival material placed before me in respect of the two applications. Upon noting that both applications are essentially seeking similar prayers; an order staying the judgment delivered in this suit, pending hearing and determination of their respective intended appeals, I will address the two (2) applications contemporaneously. 37.It is trite law that the courts have discretionary power to grant an order for a stay of execution of a decree or order. There is however a caution that such discretion ought to be exercised judicially. I am alive to the conditions that must be satisfied before the court can exercise its discretion in granting stay of execution pending an appeal. Order 42, Rule 6(2) of the CPR is clear that which stipulates as follows:(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. 38.Concerning the first condition whether the respective applications have been brought without unreasonable delay, I have read the record of the court. It is clear that the judgment in this suit was delivered on 16.10.2025 whereas the instant applications were brought within one (1) and two (2) months thereof respectively. I am persuaded to find, which I hereby do, that the delay in each of the applications is not unreasonable. 39.On the condition of substantial loss by the respective applicants in any of the two applications, I am guided by the Court of Appeal decision in Kenya Shell Ltd v Kibiru & Another [1986] KLR 410 in which that Court held that:“Substantial loss in its various forms is the cornerstone of both jurisdictions for granting stay. That is what has to be prevented…” 40.In the same case, Platt Ag JA, in the Shell case, set out two different circumstances when substantial loss could arise, and therefore giving context to the 4th holding above. The Platt Ag JA (as he then was) stated inter alia that:“The appeal is to be taken against a judgment in which it was held that the present Respondents were entitled to claim damages. It is a money decree. An intended appeal does not operate as a stay. The application for stay made in the High Court failed because the gist of the conditions set out in Order XLI Rule 4 (now Order 42 Rule 6(2)) of the Civil Procedure Rules was not met. There was no evidence of substantial loss to the Applicant, either in the matter of paying the damages awarded which would cause difficulty to the Applicant itself, or because it would lose its money, if payment was made, since the Respondents would be unable to repay the decretal sum plus costs in two courts.” 41.The learned Judge continued to observe that:“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 cornerstone of both jurisdictions for granting 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.” 42.I have considered the case by the respective Defendants on the manner in which they stand to suffer substantial loss, alongside the opposing arguments by the Plaintiffs on the same subject. 43.It is a settled principle that a successful party be allowed to enjoy the fruits of his or her judgment. Consequently, the onus is on an applicant to demonstrate the specific manner in which he or she stands to suffer substantial loss if stay is denied. 44.In the present instance, it is apparent from the averments and material on record that the subject property referenced hereinabove formed the subject matter of the present suit. From the background facts, it is clear that the Plaintiffs instituted this suit with a view of challenging the sale by auction of the said property by the 1st Defendant on 3.09.2004 in the exercise of its statutory power of sale pursuant to a legal charge dated 24.04.1985. It is also apparent from the record that the sale process was undertaken by the 3rd Defendant, being an agent of the 1st Defendant, and that the subject property was ultimately sold to the 2nd Defendant. 45.Upon considering the pleadings and evidence on record, Ouya, J. through her aforesaid judgment, found that the sale was undertaken illegally and irregularly. Consequently, the learned Judge found in favour of the Plaintiffs by declaring the sale and auction null and void and ordering that the entry and registration of the subject property be restored to its pre-auction state; that is; to ownership by the Plaintiff in their respective capacities as legal administrators of the estate of the deceased. The learned Judge also ordered the 1st Defendant to bear all incidental costs of the suit and restoration process. Upon arriving at the said finding, the learned Judge dismissed the 2nd Defendant’s counterclaim. 46.Upon my review of all the foregoing material coupled with the averments made by the respective parties and upon noting that the Defendants are seeking to challenge the entirety of the judgment as relates to the validity of sale and ownership of the subject property, I find that the said Defendants have reasonably demonstrated the manner in which they are likely to suffer substantial loss and that the appeal is likely to be rendered nugatory, if stay is denied. 47.On the subject of provision of security for the due performance of the decree or order, I have noted that the reliefs sought in the present suit are non-monetary in nature. However, the requirements under Order 42(6) (2) (b) CPR that security be provided. It provides that “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.” 48.The above provision leaves it to the discretion of the court to order the applicant to provide such security for the due performance of a decree or order as may ultimately be binding on the Applicant. To my mind, it is clear that the court is not bound by any provision to give a particular amount, if that security ordered is monetary in value. It is left to the court’s discretion. Consequently, the provision of security by the applicant is a legal requirement that must be fulfilled as one of the conditions for the applicant to qualify for an order for stay. 49.For the purposes of this application, it is my considered view that given the nature of the subject matter, it would be prudent to order a provision of Kshs 2,000,000 to be paid by the Applicant herein as security. 50.Ultimately, upon considering the circumstances of the matter before me and balancing the competing interests of the parties, I am persuaded to exercise my discretion in favour of the Defendants in respect of the orders sought for stay of execution pending the appeal. As regards the prayer for injunction, I do not deem it necessary to consider that prayer in the first application for the reason that an order for stay would in essence preserve the status quo of the parties in pending the appeal. 51.In conclusion, I hereby allow the Notices of Motion dated 26.11.2025 and 2.12.2025 on the following terms:a.That an order for a stay of execution of the judgment delivered on 16.10.2025 in this suit be and is hereby granted pending the hearing and determination of the intended appeals by the 1st, 2nd and 3rd Defendants.b.That the 1st, 2nd and 3rd Defendants shall deposit in Court, within 45 days, Kshs 1,000,000 (One Million Kenya Shillings) each as security. For the avoidance of doubt the total amount to be deposited by the Defendants shall be Kshs 3,000,000 with each defendant providing Kshs 1,000,000 within 45 days from today’s date.c.That failure to comply with order (b) above by any of the Defendants will lead to an automatic lapse of the order for stay granted herein and the Plaintiffs will be at liberty to proceed with execution.d.That the costs of the two applications shall be paid to the Plaintiffs and shall be borne by the Defendants in each application respectively. 52.It is so ordered. DATED, SIGNED AND DELIVERED THIS 6TH DAY OF MAY 2026.S. N. MUTUKUJUDGEIn the presence of:1. ……………………… for the Plaintiffs2. ……………………… for the 1st & 3rd Defendants3. ……………………… for the 2nd Defendant