[2025] KEHC 3889 (KLR)

Rwagi v Kariuki (Civil Appeal E079 of 2024) [2025] KEHC 3889 (KLR) (27 March 2025) (Ruling)

Neutral citation: [2025] KEHC 3889 (KLR)

Republic of Kenya

In the High Court at Kerugoya

Civil Appeal E079 of 2024

EM Muriithi, J

March 27, 2025

Between

Peter Muriuki Rwagi

Applicant

and

Margaret Njoki Kariuki

Respondent

Ruling

1. The applicant filed a Notice of Motion dated 20th November, 2024 seeking the following orders:1. Spent.2. Spent.3. That pending the hearing and determination of the intended appeal the Honourable Court be pleased to issue a stay of execution of the judgement delivered on the 21st of June 2023 and the decree thereof by the Hon. G.W Kirugumi in the Chief Magistrate’s Court at Kerugoya.4. That the costs of this application do abide the outcome of the intended appeal.

2. The application is based on the grounds on the face of the application and the supporting affidavit of the applicant. The applicant’s case is that an ex-parte or interlocutory judgement was entered on the 21st June 2023 by the Hon. G.W Kirugumi and decree issued on the 24th of July 2023. That the applicant made an application to set aside the ex-parte judgment on the 6th February 2024 after learning of the same. That in a ruling delivered on the 29th May 2024 the court declined to set aside the judgement and declined the application.

3. That a notification of sale of his property, land registration No. Inoi/Kiaga/ 1462 has been issued under Rule 61 of Order XXI of the Civil Procedure Rules, 2010. That Quickline Auctioneers have also served him with the notification of sale in exercise of statutory power of sale and 45 days’ redemption notice. If stay of execution is not issued the appeal will be rendered nugatory, and his family will also be rendered homeless. That he has been in custody for over one year and is due to be released from custody on 22nd November, 2024.

4. The Respondent filed a Replying Affidavit on 27th November, 2024 indicating that the application filed by the Applicant is sub judice as the Applicant had filed a similar application dated 19th June, 2024. That the Application by the Applicant is already overtaken by events as the auction proceeded on 22nd November, 2024 and the same was successful. That the application herein is filed with inordinate delay and the Applicant has not satisfied the elements for grant of the orders sought.

Applicant submissions 5. It is the applicant’s contention that the impugned judgment it purported to settle the dispute between parties in this suit, which suit the applicant’s was not informed when entry of judgment in default was entered. No notice was served to notify him as the law requires. In the instant suit, the interlocutory judgment was entered into offends Order 22 Rule 6 of the Civil Procedure Rules 2010. Rules of Natural Justice and fair trial. He humbly submits that the effect of the interlocutory judgment entered on 21. 06. 2023 condemned the applicant unheard.

Respondent submissions 6. They submit that the Applicant is not entitled to stay of execution as he has not satisfied these conditions as hereunder demonstrated;

7. On Substantial loss, the decree that was passed by the court is for Kshs. 2,244,325/= plus costs and interest. The applicant does not state that he will suffer any substantial loss if the application is dismissed.

8. She refers to the case of James Wangalwa & Another v Agnes Naliaka Cheseto [2012] eKLR where it was held 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.”

Issue 9. The issue for determination is whether stay of execution pending hearing of the appeal should be granted.

Analysis 10. The applicant seeks for this Honourable Court be pleased to issue stay of execution of the judgement delivered on the 21st of June 2023 and the decree thereof by the Hon. G.W Kirugumi in the Chief Magistrate’s Court at Kerugoya.

11. The principles guiding the grant of a stay of execution pending appeal are well settled. These principles are provided for under Order 42 rule 6(2) of the Civil Procedure Rules which provides:“(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; andb.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.

Substantial loss may result to the applicant unless the order is made 12. The applicant’s case is that an ex-parte or interlocutory judgement was entered on the 21st June 2023 and decree issued on the 24th July 2023 for Ksh.2,244,325 and that in a ruling delivered on the 29th May 2024 the court declined to set aside the judgment and declined the application.

13. Consequently, a notification of sale of his property, land registration No. Inoi/Kiaga/ 1462 has been issued and Quickline Auctioneers have also served him with the notification of sale in exercise of statutory power of sale and 45 days’ redemption notice. If stay of execution is not granted, he will suffer substantial loss.

14. The respondent submits that the decree was passed by the court is for Kshs.2,244,325/= plus costs and interest. The applicant does not state that he will suffer any substantial loss if the application is dismissed.

15. It is clear that the applicant has an arguable appeal and will suffer substantial loss of his suit property but the Court must also consider what purpose stay of execution will serve if the property has already been sold in execution.

16. As regards the condition that the Application has been made without unreasonable delay, the appellants’ application was filed without any undue delay. The trial court delivered its judgement on 21st June, 2023. The appellant filed his Notice of Motion application on 20th November, 2024. Moreover, the Memorandum of Appeal was filed on 17th July, 2024.

17. The respondent deposed that the application was filed with inordinate delay.

18. In Netplan East Africa Limited v Investment & Mortgages Bank Limited [2013] eKLR that:-"The test is whether the delay is prolonged and inexcusable, and, if it is ,can justice be done despite the delay. When such delay is established, unless it is well explained, it becomes inexcusable".

19. The applicant filed the application for stay of execution within 4 months of lodging the appeal. The delay in filing the application is not inordinate.

20. As regards the condition that such security as the court orders for the due performance of such decree or order as may ultimately be binding on the applicant has been given, the appellant has not offered any security for costs but it is in the discretion of the court to determine the security for costs.

Orders 21. Accordingly, for the reasons set out above, the Court grants the application for status quo to be maintained pending the hearing and determination of the appeal to the effect that the property if sold in execution shall not be registered or further transferred to any third party.

22. The Appellant shall deposit the entire decretal sum of into Court within the next thirty (30) days.

23. The Record of Appeal shall be filed within sixty (60) days.

24. Costs in the Appeal.Orders accordingly.

DATED AND DELIVERED THIS 27THDAY OF MARCH 2025. EDWARD M. MURIITHIJUDGEAppearances:Mr. Mwangi Maina for the Applicant.Ms. Gori with Mr. Makura for the Respondent.