[2023] KEELC 15908 (KLR)

Njaguti v Thagana (Environment & Land Case E003 of 2022) [2023] KEELC 15908 (KLR) (2 March 2023) (Ruling)

Neutral citation: [2023] KEELC 15908 (KLR)

Republic of Kenya

In the Environment and Land Court at Nairobi

Environment & Land Case E003 of 2022

JO Mboya, J

March 2, 2023

Between

Beatrice Wangari Njaguti

Plaintiff

and

John Kararu Thagana

Defendant

Ruling

Introduction and Background 1. Vide Notice of Motion Application dated the 24th January 2023, the Defendant/Applicant has approached the Honourable Court seeking for the following orders;i.That this Application be Certified Urgent for the reasons recorded herein and be heard ex parte in the first instance.ii.That pending Inter- Partes hearing and determination of this Application this Honorable court be pleased to stay execution of the Judgment and Decree herein dated and delivered on 22nd day of September,2022iii.That this Honourable Court be pleased to stay the of execution of the Judgment and Decree dated and delivered on 22nd day of September, 2022 for a period of 180 days or for such other period as the Honourable court may determine to enable (sic) the Plaintiffs/Applicants to prosecute appeal in the Court of Appeal or Application for stay pending Appeal in the Court of Appeal.iv.That costs of this application be provided for.

2. The instant application is premised and anchored on the various grounds that have been captured at the foot of the application. Besides, the application is supported by the affidavit of the Defendant/Applicant sworn on even date.

3. Upon being served with the instant application, the Plaintiff/Respondent responded thereto vide Replying affidavit sworn on the 7th February 2023, and in respect of which, the Plaintiff/Respondent has alluded to inter-alia, that the instant application is premature and in any event misconceived insofar as the Jurisdiction of this court to grant an order of proceedings, pending appeal has not been suitably invoked.

4. It is imperative to state and observe that after being served with the Replying affidavit by and on behalf of the Plaintiff/Respondent, learned counsel for the Defendant/Applicant sought for and obtained Leave to file a Supplementary Affidavit.

5. Pursuant to and line with the Leave that was granted, it is appropriate to state that indeed that the Defendant/Applicant proceeded to and duly filed a Further affidavit sworn on the 13th February 2023.

6. Thereafter, the instant application was scheduled for hearing on the 20th February 2023, whereupon the advocates for the respective Parties agreed to canvass and dispose of the Application by way of oral submissions.

7. For clarity and completeness of record, the advocates for the Parties thereafter proceeded to and indeed tendered their respective submissions.

Submissions By The Parties: a. Applicant’s Submissions: 8. Learned counsel for the Applicant adopted and relied on the various grounds contained and enumerated at the foot of the instant application and also reiterated the averments contained at the foot of the supporting affidavit sworn on the 24th January 2023, as well as the Supplementary Affidavit sworn on the 13th February 2023.

9. In addition, learned counsel invited the Honourable court to take cognizance of the depositions alluded in the various affidavits; and in particular, to appreciate that the Applicant is the legitimate owner and Proprietor of the suit property.

10. Furthermore, learned counsel for the Applicant raised, highlighted and amplified four pertinent issues for consideration and determination by the Honourable court.

11. Firstly, learned counsel for the Applicant submitted that upon the delivery of the Judgment rendered on the 22nd September 2022, the Applicant herein felt aggrieved and dissatisfied and thereafter proceeded to and indeed lodged a Notice of Appeal to the Honourable Court of Appeal.

12. Additionally, counsel submitted that the Applicant herein similarly wrote a letter seeking for the proceedings ( read bespeaking the Proceedings) and a copy of the impugned Judgment, for purposes of compiling and preparing the Record of Appeal.

13. However, learned counsel further submitted that even though the proceedings and Judgment, have neither been supplied nor availed, the Applicant herein nonetheless, has arguable appeal in terms of the Draft Memorandum of Appeal annexed to the Supporting affidavit sworn on the 24th January 2023.

14. Premised on the foregoing, learned counsel for the Applicant has therefore submitted that the Applicant has established and demonstrated sufficient basis, to warrant the invocation of the Jurisdiction of this Honourable Court for purposes of granting an order of stay of proceedings pending the hearing and determination of the Intended Appeal.

15. Secondly, learned counsel for the Applicant has submitted that the Applicant herein was and remains the lawful owner of the suit property, save for the offensive actions of the Bank who proceeded to and fraudulently sold the suit property to the Plaintiff/Respondent herein.

16. Moving forward, learned counsel for the Applicant has also submitted that as a result of the impugned actions by the Bank, the Applicant herein proceeded to and filed Civil proceedings vide High Court Commercial civil suit No. E029 of 2021. For clarity, it was added that the said suit is still pending hearing and determination.

17. Nevertheless, learned counsel for the Applicant has submitted that despite the fact that the sale, transfer and registration of the suit property in the name of the Plaintiff/ Respondent is under challenge, the Plaintiff/Respondent has since obtained a Judgment and same is now intent to evict the Applicant from the suit property.

18. In this regard, it has been submitted that the intended eviction by and at the instance of the Plaintiff/Respondent, shall occasion to and subject the Applicant to substantial loss, which is not compensable in monetary terms.

19. Furthermore, learned counsel added that even though same has not pleaded and adverted to the issue of substantial loss in the application and the supporting affidavit, it is still important that the court takes cognizance that Eviction by itself is an act that will occasion suffering to the Applicant.

20. In the alternative, learned counsel has submitted that the Applicant herein has impleaded and alluded to Irreparable loss in the application, as well as the supporting affidavit. Consequently, counsel has contended that Irreparable loss is synonymous with Substantial loss.

21. In a nutshell, learned counsel has thus contended that whether Loss is Substantial or Irreparable, it is evident that unless the orders of stay of execution sought, are granted, the Applicant is bound to be dispossessed of the Suit property.

22. Thirdly, learned counsel has submitted that the intended and imminent eviction by and at the instance of the Plaintiff/Respondent, are unlawful, illegal and thus a nullity. In this regard, learned counsel has invited the Honourable court to find and hold that no execution of a court decree, (the one before the court not excepted), can be undertaken before taxation of costs without Leave of the Honourable Court.

23. Be that as it may, counsel has submitted that the Plaintiff/Respondent has indeed commenced the process of execution via eviction, contrary to and in contravention of Section 94 of the Civil Procedure Act, Chapter 21 Laws of Kenya, which provisions are contended to be couched in mandatory terms.

24. Fourthly, learned counsel for the Applicant has submitted that the current application has been filed timeously and with due promptitude, insofar as the impugned Decree, which is the subject of stay of execution was only issued by the Honourable court on the 8th December 2023.

25. In any event, counsel has contended that the computation of time for purposes of filing the current application ought to be reckoned and ascertained from the time when the decree was signed, sealed and supplied and not otherwise.

26. Additionally, learned counsel for the Applicant has also submitted that the Applicant herein would be ready and willing to offer and provide security, on such terms as the court may deem fit and expedient.

27. In a nutshell, learned counsel for the Applicant has therefore contended that the Applicant herein has established and satisfied the requisite ingredients envisaged under the provisions of Order 42 Rule 6(2) of the Civil Procedure Rules.

28. Premised on the foregoing and in this regard, counsel has therefore implored the Honourable court to allow the application and grant the orders sought.

b. Respondent’s Submissions: 29. On behalf of the Respondent, learned counsel adopted and reiterated the contents of the Replying affidavit sworn on the 7th February 2023 and thereafter added four salient issues for due consideration by the Honourable court.

30. First and foremost, learned counsel for the Respondent has submitted that the Jurisdiction of this Honourable court for purposes of granting an order of stay of execution pending the hearing and determination of the Intended Appeal has not been properly invoked.

31. Furthermore, learned counsel submitted that prior to and/or before an Applicant can approach this court for purposes of an order of stay of execution pending appeal, it is incumbent upon the Applicant to demonstrate that same has timeously filed and lodged the requisite Notice of Appeal in line with the Court of Appeal Rules, 2010.

32. Nevertheless, learned counsel has submitted that in respect of the instant matter, the Applicant has not lodged or filed the requisite Notice of Appeal, as envisaged vide the Court of Appeal Rules. In this regard, Counsel has invited the Honourable Court to take cognizance of the provisions of Rules 74 and 75 of the Court of Appeal Rules.

33. In any event, learned counsel has added that in the absence of the requisite Notice of Appeal, filed in accordance with the Rules of the Court of Appeal, then there is no Intended Appeal upon which to premise or anchor an application for orders of stay of Execution pending Appeal.

34. Secondly, learned counsel for the Respondent has submitted that the purported Notice of Appeal dated the 26th September 2022 and which the Applicant herein has relied upon, shows that the Intended Appeal is to the High Court of Kenya against the whole of the Judgment and decree of the Environment and Land Court.

35. Furthermore, learned counsel has submitted that the impugned Notice of Appeal, which relates to an intended appeal to the High Court, does not constitutes (sic) a valid Notice of Appeal, either as known to Law, or at all.

36. Thirdly, learned counsel for the Respondent has submitted that the suit property was duly and lawfully sold by the chargee in exercise of the charges Statutory powers of sale. In this regard, counsel invited the Honourable court to take cognizance of the provisions of Sections 90, 96 and 97 of the Land Act, 2012.

37. In addition, counsel submitted that upon the purchase, transfer and registration of the suit property in the name of the Respondent, the Respondent herein became the lawful and legitimate proprietor of the suit property and thus same is entitled to occupation and possession thereof.

38. At any rate, learned counsel has added that the suit property having been duly sold and transferred to the Respondent, the Applicant herein cannot now be heard to (sic) lay a claim to ownership of the suit property.

39. Additionally, learned counsel has also contended that insofar as the Applicant ceased to be the owner of the suit property, same cannot contend that he (Applicant) will suffer substantial loss or otherwise.

40. Fourthly, learned counsel for the Respondent has submitted that the Applicant herein has not demonstrated what substantial loss, if any, same shall be exposed to suffer. In any event, counsel has contended that eviction is a lawful and legal process provided for under the law and hence levying of Eviction per-se, does not therefore constitutes substantial loss.

41. Finally, learned counsel for the Respondent has also submitted that the Judgment and consequential decree of the Honourable court, which is sought to be stayed was rendered and delivered on the 22nd September 2022, yet the current application was only filed on the 24th January 2023.

42. Based on the foregoing, learned counsel for the Respondent has submitted that the current application has been filed and mounted with inordinate and unreasonable delay, which delay has neither been explained nor accounted for.

43. In view of the foregoing, counsel for the Respondent has submitted that the Applicant herein has not met or satisfied the requisite conditions established vide the provisions of Order 42 Rule 6(2) of the Civil Procedure Rules, 2010.

Issues For Determination. 44. Having reviewed and evaluated the Application dated the 24th January 2023, together with the Supporting and Further Affidavits attached thereto; and having taken into account the Replying affidavit in opposition thereto and having considered the oral submissions that were tendered by the advocates for the respective Parties, the following issues do arise and are thus germane for determination;i.Whether the Applicant herein has established and demonstrated the existence of sufficient cause/basis to warrant the invocation of the Jurisdiction of the Honourable court to grant an order of stay of execution pending appeal.ii.Whether the Applicant has established and demonstrated that same is disposed to suffer Substantial Loss, if at, all unless the orders of stay sought are not granted.iii.Whether the Instant Application has been mounted without undue and inordinate delay or otherwise.

Analysis And Determination Issue Number 1 . Whether the Applicant herein has established and demonstrated the existence of sufficient cause/basis to warrant the Invocation of the Jurisdiction of the Honourable court to grant an order of stay of execution pending appeal. 45. The Applicant herein has approached this Honourable Court with an application seeking for an order of stay of execution of the Judgment delivered on the 22nd September 2022; and the resultant decree arising therefrom.

46. Furthermore, the Application herein seeks for the orders of Stay of Execution pending the hearing and determination of (sic) the intended appeal to the Honourable Court of Appeal.

47. Given that the Applicant is seeking for an order of stay of Execution pending the hearing and determination of an Intended Appeal to the Court of Appeal, it is therefore incumbent upon the Applicant to demonstrate that same indeed has an Intended Appeal to the Court of Appeal, to warrant the grant of the impugned orders.

48. Suffice it to point out that any litigant, who is aggrieved or dissatisfied with a Judgment and decree of the Environment and Land Court; and who is desirous to appeal to the Court of Appeal, is called upon to file/lodge the requisite Notice of Appeal within 14 days from the delivery of the impugned Judgment/ruling and with accordance with the Rules of the Court of Appeal.

49. For coherence and good measure, it is the lodgment of the requisite Notice of Appeal, in accordance with the Rules of the Court of Appeal that constitutes the existence of an Intended Appeal.

50. Furthermore, once an applicant has lodged and mounted the requisite Notice of Appeal, in accordance with the Rules of the Court of Appeal, such a Notice of Appeal is deemed to constitutes and amount to an appeal for purposes of proceedings before this Honourable court.

51. In my humble view and for the sake of clarity, that is the import, tenor and meaning of the provisions of Order 42 Rules 6(4) Civil Procedure Rules 2010.

52. For ease of reference, the provisions of Order 42 Rules 6(4) of the Civil Procedure Rules, 2010 are reproduced as hereunder;(4)For the purposes of this rule an appeal to the Court of Appeal shall be deemed to have been filed when under the Rules of that Court notice of appeal has been given.

53. Having made the foregoing observation, which is instructive and relevant on whether this court has the requisite Jurisdiction to entertain an application for stay of execution; it is now appropriate to revert and consider whether the current Applicant has indeed filed the requisite Notice of Appeal in accordance with the Rules of the Court of Appeal, to warrant a finding that there is in existence an intended appeal.

54. To this end, I beg to point out that the Applicant annexed to the supporting affidavit a copy of (sic) a Notice of Appeal dated the 26th September 2022; and in respect of which same now contends that there exists a valid and proper Notice of Appeal in accordance with the Rules of the Court of Appeal.

55. However, it is not lost on this Honourable court that the Notice of Appeal dated the 26th September 2022 shows on its face that the Applicant herein is desirous of or intended to appeal to the High Court of Kenya against the whole of the Judgment of the Environment and Land Court rendered on the 22nd September 2022.

56. Furthermore, the Notice of Appeal, has been directed to the Registrar of the High Court of Kenya at Nairobi, being the intended person to whom the appeal, if any, shall be addressed to.

57. In addition to the foregoing, the impugned Notice of Appeal has also been lodged in the Registry of the High Court of Kenya, at Nairobi, on the named date, which is (sic) contained at the foot thereof.

58. Clearly, the impugned Notice of Appeal, envisages that the Intended Appeal against the Judgment of the Environment and Land Court shall be addressed and dealt with by the High court of Kenya.

59. At this juncture and given the curious wording of the Notice of Appeal, it is appropriate to reproduce the contents of the impugned Notice of appeal, which is being relied upon by the Applicant to anchor the Current Application.

60. For convenience, the impugned Notice of Appeal is reproduced as hereunder;Republic of KenyaIn The Environment & land CourtELC Civil Suit No.E008 0E2022(OS)In The Matter Of Delivery Oe Possession Of LR No.16217/87/27ir No.90035)Beatrice Wangari Njaguti………………………plaintiffVersusJohn Kararu Thagana…………………………defendantNotice Of Appeal(Pursuant To Rule 74 of the Court of Appeal Rules)Take notice that the Appellant herein John Kararu Thagana being dissatisfied with the decision, Judgement delivered on 22md September 2022 by Hon. Oguttu Mboya (J), intends to appeal to the High Court against the whole of the said Judgement.The address of service of the intended Appellant is under care of Nyokabi Waiganjo,omung'ala & Associates Advocates,hazina Towers 12th Floor, Monrovia Street, P.o. Box 1874 - 00100 Nairobi. It is intended to serve copies of this Notice of Appeal on Mithega & Kariuki Advocates, Hazina Towers 12th Floor,monrovia Street,p.o Box 43046-00100 NairobiDated at Nairobi this 26th day of September 2022Nyokabi Waiganjo,omung'ala & Associates AdvocatesAdvocates For The Intended AppellantTo: The Registrar of High Court of Kenya at NairobiLodged in the High Court of Kenya at Nairobi this......Registrar(high Court)Drawn&filed By:Nyokabi Waiganjo,omung'ala & Asc.advocatesHazina Towers 12th FloorMonrovia StreetPO BOX 1874-00100NairobiTo Be Served UponMithega& Kariuki AdvocatesHazina Towers 12tfloorPO BOX 43046-00100 Nairobi,Email:info@mithegadvocates.com

61. The question that this Honourable court must grapple with is; whether the impugned Notice of Appeal, whose details has been reproduced hereinbefore, accords with the Rules of the Court of Appeal, to enable a Conclusion to be made that there is and intended Appeal to the said Court.

62. Similarly, this Honourable court would be called upon to determine and/or ascertain whether the impugned notice of appeal meets the threshold alluded to and provided vide the provisions of Order 42 Rules 6(4) of the Civil Procedure Rules 2010.

63. Before endeavoring to determine whether the impugned Notice of Appeal meets the requisite threshold of what constitutes a proper Notice of Appeal, it is imperative to point out that a Judgment/Ruling of the Environment and Land court is not appealable to the High court of Kenya, either in the manner intended by the Applicant or at all.

64. In addition, it is appropriate to repeat and reiterate that the Environment and Land court, the Employment and Labour relations Court; and the High Court are three Superior courts of Equal Status and same are established vide the provisions of the Constitution 2010.

65. Nevertheless, despite the fact that the three named Superior courts have Equal status, each and every court has however, been conferred and bestowed with separate and distinct Jurisdictions. For clarity, the Jurisdiction of the Environment and Land Court is underscored vide Article 162 (2) (b) of the Constitution, 2010.

66. In any event and for good measure, the Supreme Court of Kenya has had an occasion to speak to the distinctive nature of the three named Superior courts. In this regard, it was clarified, (for the sake of all and sundry, the Applicant herein not excepted), that despite same being courts of equal status same have different and distinct Jurisdictions.

67. In this respect, it is appropriate to cite and adopt the succinct and elaborate holding of the Supreme Court of Kenya in the case of Republic versus Karisa Chengo & 2 others [2017] eKLR, where the Supreme Court observed as hereunder;[50]It is against the above background, that Article 162(1) categorises the ELC and ELRC among the superior Courts and it may be inferred, then, that the drafters of the Constitution intended to delineate the roles of ELC and ELRC, for the purpose of achieving specialization, and conferring equality of the status of the High Court and the new category of Courts. Concurring with this view, the learned Judges of the Court of Appeal in the present matter observed that both the specialised Courts are of “equal rank and none has the jurisdiction to superintend, supervise, direct, shepherd and/or review the mistake, real or perceived, of the other”. Thus, a decision of the ELC or the ELRC cannot be the subject of appeal to the High Court; and none of these Courts is subject to supervision or direction from another. In their words:“By being of equal status, the High Court therefore does not have the jurisdiction to superintend, supervise, direct, guide, shepherd and/or review the mistakes, real or perceived, of the ELRC and ELC administratively or judiciously as was the case in the past. The converse equally applies. At the end of the day however, ELRC and ELC are not the High Court and vice versa. However, it needs to be emphasized that status is not the same thing as jurisdiction. The Constitution though does not define the word ‘status’. The intentions of the framers of the Constitution in that regard are obvious given the choice of… words they used; that the three Courts (High Court, ELRC and ELC) are of the same juridical hierarchy and therefore are of equal footing and standing. To us it simply means that the ELRC and ELC exercise the same powers as the High Court in performance of its judicial function, in its specialised jurisdiction but they are not the High Court.”(51)Flowing from the above, it is obvious to us that status and jurisdiction are different concepts. Status denotes hierarchy while jurisdiction covers the sphere of the Court’s operation. Courts can therefore be of the same status, but exercise different jurisdictions. That is why this Court has reaffirmed its position that the jurisdiction of Courts is derived from the Constitution, or legislation (see In Re the Matter of the Interim Independent Electoral Commission, at paras. 29 and 30; and Samuel Kamau Macharia and Another v. Kenya Commercial Bank and Two Others, Sup.Ct. Civil Application No. 2 of 2011 [para. 68]). In this instance, the jurisdiction of the specialized Courts is prescribed by Parliament, through the said enactment of legislation relating, respectively, to the ELC and the ELRC. Such legislation is to be interpreted in line with relevant constitutional provisions hence our position in Gatirau Peter Munya v. Dickson Mwenda Kithinji and Two Others, Sup. Ct. Civil Application No. 5 of 2014; [2014] eKLR, where we examined the constitutional provisions alongside legislative provisions on elections, and held[para. 77] that “the Elections Act, and the Regulations thereunder, are normative derivatives of the principles embodied in Articles 81 and 86 of the Constitution, and that in interpreting them, a Court of law cannot disengage from the Constitution.” In the instant case too, we take guidance from the Constitution, as we interpret it alongside the relevant statute law, pertaining to the specialized Courts.(52)In addition to the above, we note that pursuant to Article 162(3) of the Constitution, Parliament enacted the Environment and Land Court Act and the Employment and Labour Relations Act and respectively outlined the separate jurisdictions of the ELC and the ELRC as stated above. From a reading of the Constitution and these Acts of Parliament, it is clear that a special cadre of Courts, with suis generis jurisdiction, is provided for. We therefore entirely concur with the Court of Appeal’s decision that such parity of hierarchical stature does not imply that either ELC or ELRC is the High Court or vice versa. The three are different and autonomous Courts and exercise different and distinct jurisdictions. As Article 165(5) precludes the High Court from entertaining matters reserved to the ELC and ELRC, it should, by the same token, be inferred that the ELC and ELRC too cannot hear matters reserved to the jurisdiction of the High Court.

68. There is no gainsaying that the High Court, which enjoys Equal Status with the Environment and Land Court, cannot therefore (sic) entertain and adjudicate upon an appeal against the Judgment and decision of the Environment and Land court.

69. Quite clearly, the impugned Notice of Appeal, which seeks to appeal the Judgment of this Honourable Court, to the High Court of Kenya, therefore does not accord with the Rules of the Court of Appeal. In this regard, the purported Document annexed to Supporting Affidavit and alluded to by the Applicant does not suffice.

70. Furthermore, it is the existence of the requisite Notice of Appeal that would vest and confer the requisite Jurisdiction to entertain an application for stay of execution pending Appeal upon this Honourable court.

71. Conversely, where there is no requisite and proper Notice of Appeal, in accordance with the provisions of Order 42 Rules 6(4) of the Civil Procedure Rules, 2010, then this Honourable court has no Jurisdiction to entertain and adjudicate upon an application for stay of execution pending appeal, either as sought or at all.

72. In any event, it is worthy to add that in the absence of the requisite Notice of Appeal, no order of stay of execution pending appeal can issue or be granted.

73. Consequently and in the premises, I come to the conclusion that the subject application, which seeks for stay of execution pending appeal, has been mounted in the absence of the requisite Notice of Appeal and hence, same has been mounted in vacuum.

74. Before departing from the issue herein, it is worthy to recall that leaned counsel for the Applicant contended that the defects and anomalies contained at the foot of the impugned Notice of Appeal are inconsequential and cannot invalidate the named Notice of appeal.

75. Despite the foregoing submissions, it is common knowledge that a Notice of Appeal is a significant and primary document, which anchors the intended appeal. Furthermore, given its nature, a Notice of appeal does not lend itself to (sic) amendment.

76. In the premises, he/she who is desirous to lodge and mount an appeal, is called upon to exercise due diligence in crafting and preparing the requisite Notice of Appeal and hence, to avoid the defects, which have been pointed out hereinbefore.

77. In the circumstances, it is my humble view and I so hold, that what was filed and titled as a Notice of Appeal, is certainly not a Notice of Appeal, as envisaged under the provisions of Rules 74 and 75 of the Court of Appeal Rules, 2010.

78. To surmise, I find and hold that in the absence of the requisite and proper Notice of Appeal, the current application has been filed without the requisite legal foundation, anchorage or basis.

79. In short, the application is stillborn.

Issue Number 2. Whether the Applicant has established and demonstrated that same is disposed to suffer Substantial Loss, if at all unless the orders of stay sought are not granted. 80. It is established and trite that an applicant seeking to procure and obtain an order stay of execution pending the hearing and determination of an Appeal or intended Appeal, must establish and demonstrate that same shall be disposed to suffer Substantial loss.

81. Put differently, it has been established and underscored that Substantial loss is the cornerstone of an application for an order of stay of execution pending appeal.

82. In this respect, the holding of the Court of Appeal in the case of Kenya Shell Limited versus Benjamin Karuga & Another (1986) eKLR, is instructive and imperative.

83. For coherence, the Court stated as follows;“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.”

84. In view of the foregoing position, there is no gainsaying that it was incumbent upon the Applicant herein to not only implead the Doctrine of substantial loss in the instant application, but also to supply and avail evidence of substantial loss, if any, that same was disposed to suffer.

85. However, it is worthy to recall that learned counsel for the Applicant conceded and admitted that same had neither impleaded nor alluded to the incidence of substantial loss in the application beforehand.

86. Similarly, it is also not lost on the Honourable court that the Applicant herein did not tender and or avail any evidence of substantial loss, in the body of the supporting and further affidavits, which were relied upon by the Applicant.

87. Nevertheless, during the course of the submissions, learned counsel for the Applicant contended and submitted that unless the orders sought are granted, the Applicant herein would be evicted from the suit property and that such eviction by itself constitutes substantial loss.

88. However, it is worthy to state and underscore that Eviction is a lawful and legal process and hence the levying of eviction per-se, does not represent or constitutes Substantial loss. For clarity, it forms part of the execution process that it is envisaged and well provided for under the provisions of Order 22 of the Civil Procedure Rules, 2010.

89. To this end, it is appropriate to cite and reiterate the holding of the Court in the case of James Wangalwa & Another versus Agnes Naliaka Cheseto [2012] eKLR, that:“No doubt, in law, the fact that the process of execution has been put in motion, or is likely to be put in motion, by itself, does not amount to substantial loss. Even when execution has been levied and completed, that is to say, the attached properties have been sold, as is the case here, does not in itself amount to substantial loss under Order 42 Rule 6 of the CPR. This is so because execution is a lawful process. The applicant must establish other factors which show that the execution will create a state of affairs that will irreparably affect or negate the very essential core of the applicant as the successful party in the appeal ... the issue of substantial loss is the cornerstone of both jurisdictions.Substantial loss is what has to be prevented by preserving the status quo because such loss would render the appeal nugatory.”

90. Premised on the foregoing ratio decidendi, it is therefore safe to find and hold that the levying of eviction, in terms of the Judgment and the resultant decree of the court, (which constitutes execution) cannot by itself be relied upon to anchor a contention that substantial loss would arise merely because of such execution.

91. Clearly, the Applicant herein was called upon and under obligation to go beyond the mere recital that the Respondent had commenced and was on the verge of levying eviction. For clarity, I have found and held that eviction by itself is part of a process that is sanctioned and vindicated under the law.

92. Additionally, it is worthy to restate and reiterate that the suit property was sold and disposed of vide Public auction by the chargee, in exercise of her statutory powers of sale as provided for under the law. See Sections 90, 96 and 97 of the Land Act, 2012.

93. Following the sale of the suit property, same was transferred to and registered in the name of the Respondent, who currently holds the requisite certificate of title, over and in respect of the suit property. In this regard, there is no gainsaying that the Respondent is conferred and bestowed with the requisite rights and interests over and in respect of the Suit Property.

94. Furthermore, having bought and purchased the suit property vide public auction, arising from the exercise statutory power of sale, the Respondent’s title is duly insulated by dint of the provisions of Section 99 of The Land Act, 2012.

95. From the foregoing, the question that does arise is whether the Applicant herein who is no longer the registered proprietor of the suit property, can suffer substantial loss or any other remote loss, if same is evicted from a property that does not belong unto him.

96. In my humble albeit considered view, the intended/imminent eviction of the Applicant from the suit property, which by law does not belong to him, shall neither cause nor occasion any substantial loss or irreparable prejudice to the Applicant.

97. To the contrary, it is the continued occupation and possession of the suit property by the Applicant, despite being aware that same had been duly sold and transferred to the Respondent, which poses and causes undue prejudice to the current registered owner, namely, the Respondent herein.

98. Suffice it to point out that the current registered owner is by law conferred and/or bestowed with legal rights and interests over the suit property. See Sections 24 and 25 of the Land Registration Act.

99. Having duly considered the various perspectives necessary in ascertaining whether or not the Applicant has established or demonstrated the existence of substantial loss, I am afraid that no scintilla or iota of evidence has been availed or supplied.

100. In a nutshell, I return a verdict that the Applicant has not established evidence of substantial loss, as known to law or at all.

Issue Number 3 .Whether the Instant Application has been mounted without undue and Inordinate delay or otherwise. 101. In respect of the issue herein, it is appropriate and instructive to recall that an application for stay of execution pending the hearing and determination of an appeal, is provided for and underscored vide the provisions of Order 42 Rules 6(2) of the Civil Procedure Rules, 2010.

102. For convenience, the provision of Order 42 Rules 6(2) of the Civil Procedure Rules, 2010, provides as hereunder;6. Stay in case of appeal [Order 42, rule 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 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.

103. From the foregoing provisions, it is evident and apparent that an Applicant seeking for an order of stay of execution pending the hearing and determination of appeal, is also called to originate and mount such an application without undue and inordinate delay.

104. In my understanding, it is therefore evident that where an application for stay of execution pending appeal, is mounted with undue and inordinate delay, then such an application can very well be defeated by the doctrine of latches.

105. Back to the instant matter, it is not lost on the Honourable court that the Judgment which gives rise to the decree sought to be stayed, was rendered on the 22nd September 2022.

106. On the other hand, there is no gainsaying that the current application was not filed until the 24th January 2023. Clearly, the current application was filed after more than 120 days from the date of delivery of the impugned Judgment.

107. Having mounted or lodged the instant application after such a length of time, which on the face of it is unreasonable, it was incumbent upon the Applicant to avail explanation for such delay or better still, to account for same.

108. However, from the totality of the affidavits filed, it is common ground that the Applicant herein, has neither supplied nor availed any reason/explanation for taking the named amount of time, prior to and before reverting to court with the Application for stay of execution.

109. Notwithstanding the foregoing, it is worthy to recall that in the course of making submissions, learned counsel for the Applicant stated that the decree in respect of the subject matter was only extracted and sealed on the 8th December 2022. In this regard, counsel contended that the computation of time ought to be reckoned from the date when the decree was signed and sealed and not otherwise.

110. Be that as it may, I find it difficulty, nay impossible to appreciate the substratum of the submissions made by counsel for the Applicant. For clarity, it is common knowledge that the decree accords with the Judgment and the moment the Judgment is delivered, any aggrieved or dissatisfied Party is called upon to exercise due diligence and take appropriate steps, towards vindicating his/her rights.

111. In my humble view, the Judgment of the court, which culminated into the decree sought to be stayed, was issued on the 22nd September 2022. In this regard, the computation of time for purposes of determining whether or not, the current Application has been made without unreasonable delay, is reckoned from the said date and not otherwise.

112. Without belaboring the point, I also come to the conclusion that the current application, which seeks an order of stay of execution of the named decree, has been made with unreasonable and inordinate delay.

113. Furthermore, the unreasonable and inordinate delay, ( which is evident at the foot of the Application), has neither been accounted for nor explained, in any manner by the Applicant.

114. Consequently and in view of what has been explained hereinbefore, the instant application is also defeated by the Doctrine of Latches.

Final Disposition 115. Having duly considered and analyzed the various issues/ perspectives, that were enumerated and highlighted in the body of the Ruling, it must have become crystal clear that the impugned Application, other than being premature and misconceived, same is also legally untenable.

116. Consequently and in the premises, the Application dated the 24th January 2023, is devoid of merits and hence, the same be and is hereby Dismissed with costs to the Plaintiff/Respondent.

117. It is so ordered.

DATED, SIGNED AND DELIVERED AT NAIROBI THIS 2 ND DAY OF MARCH 2023. HON. JUSTICE OGUTTU MBOYA,JUDGEIn the Presence of:Mr. Peter King’ara for the Defendant/Applicant.Mr. Kagicha for the Plaintiff/Respondent.