https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4605

Ribbs (Suing as the Legal Representative of the Estate of Barbara Teresa Hamilton) v Waruru & another (Environment and Land Case 457 of 2009) [2026] KEELC 4605 (KLR) (16 July 2026) (Ruling) Neutral citation: [2026] KEELC 4605 (KLR) Republic of Kenya In the Environment and Land Court at Nairobi Environment and Land Case 457 of 2009 JG Kemei, J July 16, 2026 Between Susan Muthoni Hamilton Ribbs (Suing as the Legal Representative of the Estate of Barbara Teresa Hamilton) Plaintiff and Maria Ngeno Waruru 1st Defendant Peter Njuguna Njathi 2nd Defendant Ruling 1.The application for consideration is the Defendants’ Notice of Motion dated 15/4/2026, brought under Section 1A and 3A of the Civil Procedure Act and Order 42 Rule 6 of the Civil Procedure Rules. Substantively, the Applicants seek an order that, pending the hearing and determination of the intended appeal, this Honourable Court be pleased to issue a stay of execution of the Judgment/decree delivered and/or issued on 19/3/2026. 2.The application is premised on the grounds set out on the face of it and further supported by the Affidavit of Peter Njuguna Njathi, sworn on 15/4/2026. The Defendants aver that they are dissatisfied with the Judgment of this Court delivered on 18/3/2026 and have filed a Notice of Appeal. It is averred that the Court ordered the 2nd Defendant to transfer Title No. Muguga/Gitaru/1848 to the Plaintiff (or the Deputy Registrar to execute the transfer) and to pay Kshs. 2,000,000 in general damages for trespass. They contend that this amount is excessive given the circumstances. The Defendants, apprehensive that the Plaintiff will enforce the decree before their appeal is heard and determined, seek the orders set out. 3.The Defendants argue that there has been no delay in filing the application and that the 2nd Defendant would suffer irreparable and substantial loss if the orders are not granted. The Defendants assert that the Plaintiff is a U.S. citizen and resident with no known assets in Kenya, making recovery of damages difficult if execution proceeds. It is further alleged that the 2nd Defendant faces severe financial strain due to mounting medical bills for his wife and mother. As a gesture of goodwill, the 2nd Defendant avers that he is willing to deposit a Certificate of Title in respect of Muguga/Gitaru/T.68 as security. They contend that the appeal is arguable and has a high likelihood of success. It is deposed that if the appeal succeeds whilst execution has taken place, the appeal may be rendered nugatory. The Plaintiff’s Replying Affidavit and Grounds of Opposition 4.In her Reply Affidavit, sworn on 2/6/2026, the Plaintiff, being the Decree-Holder, contends that the Application is frivolous, vexatious, and malicious, and constitutes an abuse of the Court process. She further contends that the Application is solely intended to delay execution and to deny her the fruits of a lawful judgment. She argues that the Application, in its entirety, fails to meet the mandatory prerequisites for the grant of a stay of execution as set out under Order 42 Rule 6 of the Civil Procedure Rules, 2010. 5.On the cardinal requirement of substantial loss, the deponent asserts that the Applicants have neither pleaded nor adduced cogent evidence showing that they would suffer irreparable harm if the stay were denied. Their reliance on allegations of her perceived lack of assets, inability to recover the decretal sum, or their self-proclaimed status as bona fide purchasers for value is, in law, immaterial and does not constitute proof of substantial loss within the meaning of Order 42 Rule 6(2). Consequently, the Court cannot exercise its discretion in their favour for want of proof. 6.The deponent further avers that the Applicants have failed to satisfy the second conjunctive requirement of providing security for the due performance of the decree. The Applicants have not shown willingness to deposit security, and no bank guarantee or other tangible security has been tendered. It is argued that a mere title deed, being susceptible to replacement and uncertain in realisable value, does not meet the standard envisaged by the Rules. She asserts that the application is therefore incompetent and inequitable, and ought to be dismissed with costs, as the Applicants have advanced unverified allegations and misled the Court, thus rendering them undeserving of any equitable relief. 7.In her grounds of opposition of even date, the Plaintiff restates the assertions made in her Replying Affidavit in further opposition to the application. 8.The Court directed that the application be dispensed with by way of written submissions. Both parties complied. The Defendant/Applicants filed their submissions dated 24/6/2026, whereas the Plaintiff/Respondent’s submissions are dated 3/7/2026. 9.The Court has had occasion to read the parties' submissions and has considered them in its determination. In any event, the filed submissions now form part of the Court record. Analysis and Determination 10.I have considered the application for a stay, the grounds thereof, the supporting affidavit and annexures. I have also considered the reply affidavit and submissions, together with the case law cited by both counsel for their respective clients. 11.The main issue for determination is whether the Applicant has demonstrated that the orders of stay of execution pending appeal are merited. 12.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:“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.” 13.Therefore, an Applicant for a stay of execution of a decree or order pending appeal is obliged to satisfy the conditions set out in Order 42 Rule 6(2), namely (a) that substantial loss may result to the Applicant unless the order is made, (b) that the application has been made without unreasonable delay, and (c) that such security as the Court orders for the due performance of any decree or order that may ultimately be binding on the Applicant has been given. 14.In Vishram Ravji Halai v Thornton & Turpin Civil Application No. Nai. 15 of 1990 [1990] KLR 365, the Court of Appeal held that whereas the Court of Appeal’s power to grant a stay pending appeal is unfettered, the High Court’s jurisdiction to do so under Order 41 rule 6 of the Civil Procedure Rules is fettered by three conditions namely, establishment of a sufficient cause, satisfaction of substantial loss and the furnishing of security. Further the application must be made without unreasonable delay. 15.On the first condition of substantial loss is, it was observed in James Wangalwa & Another v 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.” 16.I agree with the position held by Platt, Ag. JA (as he then was) in Kenya Shell Limited v Kibiru [1986] KLR 410, at page 41 expressed himself 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.” 17.According to the above authority, it is clear that demonstrating what substantial loss is likely to be suffered is central to granting a stay pending appeal. Following the principle that he who alleges must prove, the onus of proving substantial loss rests on the party seeking the stay. It is thus not enough to allege that one stands to suffer substantial loss. The Applicant must show that she will be totally ruined in relation to the appeal if the stay is not granted. The Defendants were bound to place before the Court real and cogent evidence showing that she stood a risk of suffering substantial loss, whether financially or otherwise, and therefore to grant the stay. 18.In his submissions, the 2nd Defendant avers that it is not in dispute that he is the registered proprietor of the suit property and has possession of it. He asserts that the Plaintiff is not a resident of Kenya and that her income is unknown. He further asserts that the only known property is in her late mother’s will, and that it is not within the country. He argues that if the stay order is not granted, it would be extremely difficult to recover the suit property, as the Plaintiff may dispose of it before the appeal is concluded. 19.The subject judgment of this Court, delivered on 19/3/2026, directed the cancellation of the 2nd Defendant’s title to the suit property and the registration of the land in favour of the Plaintiff. The Court also held that the 2nd Defendant’s occupation, fencing, and cultivation of the suit land amounted to trespass, hence an award of Kshs. 2 Million as general damages for trespass. 20.There is no doubt that once the title is cancelled, eviction will ensue. The cancellation and eviction create a state of affairs that constitute substantial loss. It is therefore my finding that the Applicant has discharged the burden of proof that he is likely to suffer substantial loss. 21.Secondly, the Applicant must show that the application for a stay of execution was made without unreasonable delay. In Jaber Mohsen Ali & Another v Priscillah Boit & Another (2012) eKLR, the Court defined undue delay as follows:“ 11.… The question that arises is whether this application has been filed after unreasonable delay. What is unreasonable delay is dependent on the surrounding circumstances of each case. Even one day after judgment could be unreasonable delay depending on the judgment of the Court and any order given thereafter.” 22.The judgment in this suit was delivered on 19/3/2026, while the present application was filed on 15/4/2026. There are only 27 days between the judgment and the filing of the present application. To my mind, this period does not constitute an inordinate delay. 23.Thirdly, the condition is payment of security for the due performance of the decree. The requirement for security for the due performance of the decree under Order 42 Rule 6(1) of the Civil Procedure Rules is grounded in the principle that the winner of litigation should not be denied the opportunity to execute the decree and enjoy the fruits of their judgment if the appeal fails. 24.In the case of Aron C. Sharma v Ashana Raikundalia T/A Rairundalia & Co. Advocates & 2 Others (2014) eKLR the Court held that:“The purpose of the security needed under Order 42 is to guarantee the 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 Applicants 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 security for due 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.” 25.The Applicant avers that he is financially constrained and has offered a title deed for another parcel of land, allegedly registered in his name, as security. Whereas the Court notes the 2nd Defendant’s willingness to offer security, the Applicant ought to have used the alleged title to obtain funds to be deposited as security or to provide a bank guarantee. This being a civil dispute, the security envisaged under the Rules is one that guarantees due performance of the decree, not just any security. The Applicant has not even attached the alleged title, a search, or a valuation report for the Court to ascertain ownership and the value of the alleged land. The Applicant was required to provide actual security for the Court’s consideration as to its sufficiency, or an undertaking that he is willing to comply with the conditions to be set by the Court. 26.Taking all relevant factors into consideration and in order not to render the intended appeal illusory, I do grant a stay of execution of the decree herein on condition that;a.The Applicant is hereby ordered to deposit the sum of Kenya Shillings One Hundred Thousand (Kshs. 100,000/=) only as security for costs into a fixed joint interest-earning account in the names of both counsel for the parties.b.This condition is to be met within 30 days of the date of this ruling. In default, this application shall be deemed to have been dismissed with costs, and the Plaintiff/Respondent shall be at liberty to execute.c.The costs of this Application will be in the cause. 27.It is so ordered DELIVERED, DATED AND SIGNED AT NAIROBI THIS 16TH DAY OF JULY 2026 VIA MICROSOFT TEAMS.J G KEMEIJUDGEDelivered in the virtual presence of;Ms Vinya H/B for Mr. Bhanji for the PlaintiffMr Gikonyo for the 1st and 2nd DefendantsC/A -Ms Kendi