https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3306

Thathini Development Company Limited v Mombasa Water & Sewerage Company & another (Environment and Land Case Civil Suit 371 of 2016) [2026] KEELC 3306 (KLR) (26 May 2026) (Ruling) Neutral citation: [2026] KEELC 3306 (KLR) Republic of Kenya In the Environment and Land Court at Mombasa Environment and Land Case Civil Suit 371 of 2016 JO Olola, J May 26, 2026 Between Thathini Development Company Limited Plaintiff and Mombasa Water & Sewerage Company 1st Defendant Coast Water Works Development Agency (Wrongly Sued in ELC No 371 of 2016 as Mombasa Water Service Board) 2nd Defendant Ruling 1.By the Notice of Motion dated 23rd June 2025, Coast Water Works Development Agency (the 2nd Defendant /Applicant) prays for an order that this Honorable Court be pleased to stay the execution of the decree and all consequential orders issued in respect of the judgment delivered herein on 30th May 2025 pending the hearing and determination of the Appeal. 2.The application is supported by an affidavit sworn by Hamoud M. Mguza, the Applicant's Chief Executive Officer and is premised on the grounds inter alia, that:i.Judgment was delivered on 30/5/2025 in favour of the 1st Respondent against the Applicant for an entire sum of Kshs 52,286,000/=;ii.The Applicant being aggrieved by the said Judgment has preferred an appeal against the same;iii.There is danger of imminent execution against the Applicant because the 1st Respondent has already served upon the Applicant 10 days' notice of execution despite the 30 days stay period not having lapsed;iv.There is no decree extracted and no taxation has been done to warrant the execution; andv.That it is in the interest of justice that the execution of Judgment and/or decree delivered herein be stayed to pave way for the hearing and determination of the Appeal. 3.Thathini Development Company Limited (the Plaintiff/1st Respondent) is opposed to the application. In a Replying Affidavit sworn by its Director Mungai Wainaina, the Plaintiff avers that this application is misconceived, a non-starter, dead on arrival and an abuse of the Court process. The Plaintiff avers that the Applicant has not filed a Notice of Appeal and that it only uploaded a letter requesting for proceedings on 5th June 2025 and went into slumber before waking up to file this application. 4.The Plaintiff further avers that the 2nd Defendant has filed this application late without explanation and asserts further that there is no proper appeal on record. 5.I have carefully perused and considered both the application as well as the response thereto. I have similarly perused the submissions and authorities placed before me by the Learned Counsels representing the parties. 6.By its application before the Court, the 2nd Defendant prays for an order of stay of execution of the judgment delivered herein on 30th May 2025. It is the 2nd Defendant's case that it is aggrieved by the said judgment wherein the Plaintiff was awarded the sum of Kshs. 52,286,500/= as compensation and another Kshs. 20,000,000/= as general damages for trespass and that it has since preferred an appeal against the same. 7.The Plaintiff is opposed to the application for stay and terms the same as being misconceived and an abuse of the Court process. It is the Plaintiff’s case that the application lacks merit as there is no proper Appeal on record and that the application has been made late without any explanation. 8.In respect of an application for stay of execution, Order 42 Rule 6 of the Civil Procedure Rules provides 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, 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 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." 9.In the case of Butt Vs Rent Restriction Tribunal (1982) KLR 417, the Court of Appeal gave guidance on how a Court should exercise discretion while dealing with an application for stay of execution and held that:1.The power of the Court to grant or refuse an application for a stay of execution is a discretionary power. The discretion should be exercised in such a way as not to prevent an appeal;2.The general principle in granting or refusing a stay is; if there is no other overwhelming hindrance, a stay must be granted so that an appeal may not be rendered nugatory should the appeal Court reverse the Judge's discretion;3.A Judge should not refuse a stay if there are good grounds for granting it merely because in his opinion, a better remedy may become available to the Applicant at the end of the proceedings;4.The Court in exercising its discretion whether to grant (or) refuse an application for stay will consider the special circumstances of the case and unique requirements. The special circumstances in this case were that there was a large amount of rent in dispute and the appellant had an undoubted right of appeal; and5.The Court in exercising its power under Order XLI Rule 4 (2) (b) of the Civil Procedure Rules, can order security upon application by either party or on its own motion. Failure to put security for costs as ordered will cause the order for stay of execution to lapse." 10.In the matter herein, despite contestation by the Plaintiff, it was evident from a perusal of the record that the 2nd Defendant had filed its Notice of Appeal on 30th May 2025. In addition, the 2nd Defendant has filed a Memorandum and Record of Appeal dated 22nd July 2025. 11.By their suit as filed herein, the Plaintiff had accused the Defendant of invading its property and unlawfully laying pipes thereunder. The 2nd Defendant, a State Corporation operating under the Ministry of Water and Sanitation, denied that it had invaded the Plaintiff's property. Instead, it was the 2nd Defendant's case that the area where the suit properties lie was long earmarked for the laying of water pipes by the relevant authority way back in the year 1961. 12.In its submissions before the Court, the 2nd Defendant has asserted that the decretal sum awarded to the Plaintiff is a colossal sum and that it was apprehensive that it will most likely not recover the said sum in the event the Appeal succeeds as the Plaintiff's financial capability is not certain. In its Affidavit in Reply to the application, the Plaintiff has indeed not furnished the Court with any evidence demonstrating their financial standing or capability to refund the decretal sum in the event the Appeal succeeds. 13.On the other hand, I was satisfied that the 2nd Defendant had established that being a public and /or Government institution it has perpetual succession and therefore in a position to meet any liability from the decision of the Appellate Court should its Appeal fail. I was also persuaded that there is public interest in the Court granting the orders for stay as the decretal sum is payable from public funds and the removal of the water pipes before the determination of the Appeal was likely to affect a large population dependent on water from the said pipes. 14.In taking that position, this Court has also taken cognizance of the fact that following an interim conditional order of stay granted herein on 24th June 2025, the 2nd Defendant had proceeded to deposit the sum of Kshs. 1,000,000 as security for costs 15.In the premises, I am persuaded that there is merit in the Motion dated 23rd July 2025. I hereby allow the same in terms of prayer No 3 thereof. 16.The costs of the application shall be in the Appeal. RULING DATED, SIGNED AND DELIVERED IN OPEN COURT AND VIRTUALLY AT MOMBASA THIS 26TH DAY OF MAY, 2026.…………………………………J.O. OLOLAJUDGEIn the presence of:a) Mr. Leaky Court Assistant.b) Ms. Bwire holding brief for Kibaara Advocate for the Applicantsc) No Appearance for the Respondents