Skyview Properties Ltd & another v Njoroge & 4 others (Environment and Land Case 605 of 2012) [2026] KEELC 3955 (KLR) (25 June 2026) (Ruling)

Skyview Properties Ltd & another v Njoroge & 4 others (Environment and Land Case 605 of 2012) [2026] KEELC 3955 (KLR) (25 June 2026) (Ruling) Neutral citation: [2026] KEELC 3955 (KLR) Republic of Kenya In the Environment and Land Court at Nairobi Environment and Land Case 605 of 2012 JG Kemei, J June 25, 2026 Between Skyview Properties Limited 1st Applicant Scenic Court Limited 2nd Applicant and Kennedy Amos Njoroge 1st Respondent Irene Ndugi Njoroge 2nd Respondent Linnet Angongo Shiundu 3rd Respondent Salim Bakari 4th Respondent Scenic Court Management Co Ltd 5th Respondent Ruling 1.Before the Court for determination is the Applicant's motion dated 12/3/25, seeking orders to stay execution of the judgment delivered by Hon Justice DM Mwangi on 13/2/25, pending the hearing and determination of the intended appeal and of ELCOS E062 of 2024. 2.It is averred that the Applicants are aggrieved by the judgment of the Court delivered on 13/2/25 and have therefore lodged an appeal in compliance with the rules of the Court and have sought the proceedings to facilitate the preparation of the said appeal. 3.The Applicants are apprehensive that there exists a genuine and imminent risk that the Respondent will begin the enforcement of the orders prior to the determination of the appeal, thus rendering the appeal nugatory. 4.It was further averred that, according to the judgment of the Court, the Applicants are to surrender the original title to the Respondent, thereby rendering the appeal an academic exercise. 5.Furthermore, it was averred that there is a pending case in ELCOS No E062 of 2024, currently before the Court, relating to the certificates of title LR No 209/8879/9 and LR No 20988/10, in which the Applicant is seeking their release. 6.The application is opposed by the Respondents through the replying affidavit sworn by Francis Njoroge Kamau on 27/3/2025. 7.The Respondents contend that the application is incompetent on the basis that the Applicants have not extracted the Court's decree in compliance with the provisions of Order 42 Rule 6, which stipulates that only a decree or order of the Court can be stayed. That in the absence of an extracted decree or order, there is nothing to stay or execute; consequently, the application is premature and warrants dismissal. The Respondent has placed reliance on the decision of the Court in Interactive Gaming & Lotteries Limited Vs Flint East Africa Limited & 2 others [2014] EKLR, where the Court stated that;“Based on the authorities cited above, it is my finding that a clear reading of Order 42 Rule 6(1) of the Civil Procedure Rules contemplates the existence of an order or decree, without which a stay of execution under the said provision may not be granted. Accordingly, I find that the application dated 6/5/2014 is premature, and the same is struck out with costs to the plaintiff.” 8.On substantial loss, the Respondents have argued that the Applicants have not demonstrated or elaborated on the nature of the substantial loss they are likely to suffer if an order of stay is not granted. That conversely if the application is granted, the orders will deny the Respondents the fruits of their judgment in the absence of sufficient cause and proof of substantial loss to do so. 9.On arguability of the appeal, the Respondents have contended that the grounds of appeal are unmerited on the grounds that: the grounds of appeal are vague and unsubstantiated; the Court's judgment was based on uncontroverted and overwhelming evidence, making it unlikely that the appeal will succeed; the intended appeal is frivolous. 10.In the related case cited by the Applicants, namely ELCOS No E062 of 2024, it was contended that the suit merely sought the release of the title documents to the Respondents and that the proceedings in the suit do not in any way affect the Applicants or the registration of the titles as ordered by the Court. Given the Applicant's failure to surrender the titles of the suit lands, the Deputy Registrar of the Court has been directed to sign the transfer documents, and the Land Registrar to register the necessary titles in accordance with Section 13 of the Sectional Properties Act, 2020. The written submissions 11.I have read and considered the respective submissions of the parties and thank the counsel for their insights. Analysis and determination 12.The key issue for determination is whether the Applicants are entitled to the orders staying execution of the judgment of the Court issued on 13/2/25. 13.It is trite that no appeal can operate as a stay; hence, an application for a stay shall be made to the Court by the party seeking it. The principles upon which a stay of execution pending appeal may be allowed are now well settled by the authorities of this Court and the superior Courts. Generally, a stay of execution is provided for under Order 42, Rule 6 of the Civil Procedure Rules, which provide 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, an 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 of stay of execution shall be made under Sub-rule (1) unlessa.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 undue 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.” 14.In considering an application for stay of execution, I am guided by the case of Butt –vs- Rent Restriction Tribunal (1982) KLR 417 where the Court of Appeal gave the following guidelines: -“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 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.” 15.The grant of an order of stay of execution is a discretionary one. In the case of 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.” 16.The judgment of the Court was delivered on 13/2/25, and this application was filed on 12/3/25. The Respondents have argued that the application was brought before the Court inordinately and therefore unmerited. 17.In Utalii Transport Company Limited & 3 others v NIC Bank & Another [2014] eKLR the Court further held that:“…......There is no precise measure of what amounts to inordinate delay. Inordinate delay will differ from case to case depending on the circumstances of each case; the subject matter of the case; the nature of the case; the explanation given for the delay; and so on and so forth. Nevertheless, inordinate delay should not be difficult to ascertain once it occurs; the litmus test being that it should be an amount of delay which leads the Court to an inescapable conclusion that it is inordinate and therefore, inexcusable. Caution is, however, advised for Courts not to take the word ‘’inordinate’’ in its dictionary meaning, but to apply it in the sense of excessive as compared to normality. Therefore, inordinate delay for purposes of dismissal for want of prosecution should be one which is beyond acceptable limits in the prosecution of cases. See the case of Allen v Alfred Mc Alphine & Sons [1968] 1 All ER 543: where a delay of fourteen (14) years was considered inordinate and inexcusable. But see also the cases of Agip (Kenya) Limited v Highlands Tyres Limited [2001] KLR 630 and Sagoo v Bhari [1990] KLR 459, where delay of eight (8) months and five (5) months, respectively was considered not to be inordinate. And also NBI HC ELC Case No 2058 of 2007, where a delay of about 1 ½ years was considered not to be inordinate.” 18.In the case of IVITA v KYUMBU [1984] KLR 441, Chesoni, J. (as he then was) that the decision whether a suit should be re-instated for trial is a matter of justice and it depends on the facts of the case. See the:“The test is whether the delay is prolonged and inexcusable, and, if it is, can justice be done despite such delay. Justice is justice to both the Plaintiff and Defendant; so both parties to the suit must be considered and the position of the judge too, because it is no easy task for the documents, and, or witnesses may be missing and evidence is weak due to the disappearance of human memory resulting from lapse of time. The Defendant must however satisfy the Court that he will be prejudiced by the delay or even that the plaintiff will be prejudiced. He must show that justice will not be done in the case due to the prolonged delay on the part of the plaintiff before the Court will exercise its discretion in his favour and dismiss the action for want of prosecution. Thus, even if delay is prolonged if the Court is satisfied with the plaintiff’s excuse for the delay the action will not be dismissed, but it will be ordered that it be set down for hearing at the earliest available time.” 19.In this case, the delay in filing the application is 29 days. The Court is satisfied that this delay is not inordinate in the circumstances. 20.Another reason advanced by the Respondent is that the application is unmeritorious on the ground that the Applicants have not annexed the decree or order of the Court sought to be stayed. The Court has perused the record and found that the Applicants did annex the said decree and order by the supplementary pleading dated 3/2/2026. The Court therefore finds that nothing turns on this ground. 21.As for the Applicant having to suffer substantial loss, in the case of Kenya Shell Limited –vs- Benjamin Karuga Kigibu & Ruth Wairimu Karuga (1982-1988)KAR 1018 the Court of Appeal pronounced itself to the effect 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 rendered nugatory by some other event. Substantial loss in its various forms is the cornerstone of both jurisdictions for granting stay.” 22.The grant of an order of stay of execution is a discretionary one. In the case of 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.” 23.The Court is therefore called upon to balance the rights of the successful party, so as not to hinder him from enjoying the fruits of the judgment, and those of the Appellant, whose Appeal may succeed and be rendered nugatory if a stay of execution is not granted. 24.The purpose of a stay of execution is to preserve the substratum of the case. Under the first condition, namely that substantial loss may result unless a stay is granted, the Applicant should not only state that he is likely to suffer substantial loss; he must prove that he will suffer substantial loss if a stay order is not granted. 25.Substantial loss was clearly explained in the case of James Wangalwa & Another vs Agnes Naliaka Cheseto [2012] eKLR: -“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 Civil Procedure Rules. 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.” 26.In this case, the Applicants have submitted that, vide a letter dated 24/7/25, the Respondents forwarded the transfer documents to the plaintiffs for execution for the purpose of transferring the reversionary interests in the suit lands to the 5th Respondent. That the attempt to execute the said judgment was made during the pendency of the said application. That the execution of the judgment will not only deprive the Applicants of their proprietary interests over the 4 apartment units on the ground floor and the 3 basement units but also defeat the Applicants' right to property. 27.The Respondents, on the other hand, have submitted that the Applicants have not demonstrated any substantial loss if the stay is denied. That they have not identified any irreversible injury or loss that cannot be compensated by an award of damages. 28.The Court agrees with the Respondents that the mere fact that execution has been commenced or may be put in motion is not, by itself, sufficient to demonstrate substantial loss. Furthermore, execution is a lawful process, and the Applicants have not demonstrated any factors that would cause irreversible injury. 29.In the case of Riverbank Plaza Ltd v City Council of Nairobi [2026] KECA 1127 (KLR), the Court of Appeal, while dealing with a similar application, stated that;“On the nugatory aspect, the Applicant averred that the title to the suit property will be adversely affected. Determining whether an appeal will be rendered nugatory depends on whether or not what is sought to be stayed if allowed to happen is reversible, and if it is not, whether damages will reasonably compensate the aggrieved party. In this case, any damage arising from the judgment is reversible by Order of Court under Section 80 of the Land Registration Act, which provides for rectification of the register. “ 30.This Court, guided by the above decision of the appellate Court, holds that the Applicants have failed to prove substantial loss. 31.Regarding security for the performance of any decree, the Court observes that the Applicants have neither provided security nor indicated their willingness to accept any conditions the Court might impose for a stay pending appeal. While the Court has the power to require security in such cases, demonstrating a willingness to provide security reflects good faith and supports justice, ensuring that the application is not merely a tactic to delay the Respondent's rights to the judgment's benefits of the judgment in his hand. 32.In such an application, the Court is required to weigh the competing interests of the parties involved, specifically the Applicants' right to appeal against the Respondent's right to enjoy the benefits of its judgment. It is well established that the latter right should be restricted only on valid and sound reasons. In the present case, the Applicants have not succeeded in persuading the Court to issue orders of stay of execution; consequently, the application is dismissed. 33.Regarding the related case, specifically ELCOS E062 of 2024, the Court notes that there are third parties who are not parties to the present case. Consequently, to prevent a ruling that could infringe the right to be heard, the Court refrains from issuing any orders concerning ELCOS E062 of 2024. The parties retain the right to pursue their respective claims in that case; therefore, the issue of prejudice does not arise. 34.Final orders for disposala.In the upshot, the application is unmerited.b.It is dismissed with costs to the Respondents. 35.Orders accordingly. DELIVERED, DATED AND SIGNED AT NAIROBI THIS 25TH DAY OF JUNE 2026 VIA MICROSOFT TEAMS.J. G. KEMEIJUDGEDelivered Online in the Presence of:N/A for the ApplicantsMs. Radol for the RespondentsCA – Ms Kendi