https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4553

Njenga Karume Trust Registered Trustees v Opondo & 4 others (Environment and Land Appeal E281 of 2025) [2026] KEELC 4553 (KLR) (15 July 2026) (Ruling) Neutral citation: [2026] KEELC 4553 (KLR) Republic of Kenya In the Environment and Land Court at Nairobi Environment and Land Appeal E281 of 2025 MN Kullow, J July 15, 2026 Between The Njenga Karume Trust Registered Trustees Appellant and Jeniffer Opondo 1st Respondent Albert Kigera Karume 2nd Respondent Cooperative Bank Of Kenya 3rd Respondent Bank Of Arfica Kenya 4th Respondent Kingdom Bank Kenya (Sued as the successor in title to Jamii Bora Bank Limited) 5th Respondent Ruling Introduction 1.The matter is coming up for determination of the Applicant/Appellant’s Notice of Motion application dated 19th December 2025 seeking the following orders;a.Spent.b.That pending the hearing and determination of this Application inter-partes, this Honourable Court be pleased to issue a temporary injunction restraining the Respondents, whether by themselves, their agents, employees, or any other persons acting under their authority, from enforcing and/or executing in any manner whatsoever the Ruling delivered by the subordinate court on 19 December 2025 in MCELC/E177/2023: Jennifer Opondo vs Albert Njenga Karume & Anor. (Cooperative Bank of Kenya & 2 Others as Garnisheesc.That pending the hearing and determination of this Application inter-partes, this Honourable Court be pleased to stay the ex-parte Order Nisi issued on 25 November 2025 by the subordinate court in MCELC/E177/2023: Jennifer Opondo vs Albert Njenga Karume & Anor. (Cooperative Bank of Kenya & 2 Others as Garnishees).d.That pending the hearing and determination of this Appeal, this Honourable Court be pleased to issue a temporary injunction restraining the Respondents, whether by themselves, their agents, employees, or any other persons acting under their authority, from enforcing and/or executing in any manner whatsoever the Ruling delivered by the subordinate court on 19 December 2025 in MCELC/E177/2023: Jennifer Opondo vs Albert Njenga Karume & Anor. (Cooperative Bank of Kenya & 2 Others as Garnishees)e.That pending the hearing and determination of this Appeal, this Honourable Court be pleased to stay the ex-parte Order Nisi issued on 25 November 2025 by the subordinate court in MCELC/E177/2023: Jennifer Opondo vs Albert Njenga Karume & Anor. (Cooperative Bank of Kenya & 2 Others as Garnishees)f.That the costs of the application be provided for. 2.The application was premised on grounds as in the supporting affidavit of Kuria Muchiru. He deponed that the Appellant being aggrieved by the decision of the lower court in MCELC E177/2013 Jennifer Opondo vs Albert Njenga Karume & Anor. (Cooperative Bank of Kenya & 2 Others as Garnishees) had preferred this appeal on the basis that the ruling upheld an ex parte order Nissi issued on the 25th November 2025 which order had been obtained on non-disclosure of material facts.That the Applicant had been absolved from any liability owing to the 2nd Respondent based of the doctrine of privity of contract via the ruling delivered by the lower court on the 18th November 2024 and that the 1st Respondent unprocedurally sought to have the monies held in the accounts of the Appellant to settle the debt owed of Ksh 30,000,000/= by the 2nd Respondent He deponed that as the estate administrators, they were totally separate entities with the 2nd Respondent and the 1st Respondent did not disclose this had been determined by the court in its earlier decision. 3.He deponed that unless the ruling the orders for stay are granted, the 4th Respondent being the holding bank, will go ahead and execute the ruling which will cause irreparable harm to the Applicant including being unable to meet its payroll obligations, being unable to settle payments due to creditors and further failing to discharge its statutory and contractual obligations to 3rd parties hence this application for stay of execution and grant of and interim relief 4.Th 1st Respondent in opposing the application swore a replying affidavit on the 26th January 2026. She deponed that the issues raised by the Appellant had been raised in the lower court which held while the Appellant could not be held liable as judgement debtor by virtue of the earlier ruling of 18th November 2024, where it stated that the law on garnishee liability was distinct from substantive liability .That garnishee proceedings operate by force of law and do not depend on privity of contract between the decree holder and the garnishee. 5.She deponed that based off the ruling the court made the decree nissi absolute and hence she proceeded to instruct the 4th Respondent to execute the same. She deponed that the Appellant had previously acknowledged the debt owed by the 2nd Respondent to her and even made partial payments toward settling the same and that this application is now made in bad faith to frustrate her efforts to stele the judgment knowing that there are no other attachable assets of the 2nd Respondent that the 1st Respondent can attach and is a mere attempt to evade the garnishee proceedings 6.The application was canvassed by way of written submissions with the Applicant filing submissions dated 10th June 2026 whereas the 1st Respondent filed submissions dated 7th July 2026. Applicant/Appellant’s submissions 7.The Appellant submitted on the following issues;i.Whether the conditions for stay of execution had been metCounsel for the Applicant relied on the provisions of order 42 rule 6(2) of the civil procedure rules and submitted that in an application for stay of execution, one is to demonstrate substantial loss, the application has been made without delay and that security for due performance of a decree had been given.He submitted that the Applicant had demonstrated substantial loss .That 1st realization of this ground was that the Garnishee Order Absolute has been issued against funds that belong to the Appellant/Applicant despite it not being the Judgment Debtor and the execution would affect the bank accounts and would amount to the deprivation of property belonging to a party that was never not liable to settle the debt.The 2nd ground raised was that they had demonstrated that funds in the bank are trust funds belonging to multiple beneficiaries and not just the 2nd Respondent who will be prejudiced.Counsel submitted that they would also fail to meet their obligations such as failing to meet payroll obligations, settle debts to creditors and meet statutory obligations. Lastly it was submitted that the 1st Respondent had not demonstrated that she will be able to reimburse the decretal sum should the appeal succeed relying on the case of Muthee v Ndegwa & another [2024] KEHC 9909 (KLR.On the issue of delay counsel submitted that the application had been filed on the same day hence no unreasonable delay.On the issue of security of costs counsel argued that they were willing to abide to any conditions set forth by this court a demonstration of good willii.If the appeal was arguableCounsel indicated that the grounds raised in the memorandum of appeal raised arguable reasons of both facts and law and as such the court should consider the same placing reliance in the case of Njoroge v Mwagandi (Environment and Land Appeal E026 of 2025) [2025] KEELC 7837 (KLR) (12 November 2025) (Ruling). 1st Respondent’s submissions 8.The 1st Respondent reiterated the contents in her replying affidavit that garnishee proceedings operate by force of law and do not depend on privity of contract between the decree holder and the garnishee relying on the case of Kenya Electricity Transmission Company Limited v Spedag Interfreight Kenya Limited & 4 others (Civil Appeal E028 of 2021) [2024] KECA 542 (KLR) (24 May 2024) (Judgment) 9.On the issue of the 1st Respondent being a person of straw an incapable of refunding the decretal amount should the appeal succeed counsel submitted that, the 1st Respondent is a landlord possessing real estate in Karen, within Nairobi County and consequently, the value of the subject residential property vastly exceeds the decretal sum of KES.2,510,039.00, and the Appellant’s apprehension regarding recoverability is ill placed being that the Appellant had been the one paying the said rents for the occupancy by the 2nd Respondent to the 1st Respondent making it aware of the financial status of the 1st Respondent. Further counsel asked the Court to take judicial notice of the fact that land is an appreciating commodity rising in value each day. Analysis and determination 10.Having looked at the application, the responses thereto, the submissions and cited authorities, the issue for determination will be whether the application for grant of stay of execution is merited 11.The law governing the grant of orders for a stay of execution pending appeal is codified under Order 42 Rule 6 (1) and 2 of the Civil Procedure Rules.Sub rule 2 reads;No order for a 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. 12.Substantial loss is the cornerstone of an application for stay. In Kenya Shell Limited v Benjamin Karuga Kibiru & another [1986] KECA 94 (KLR), the Court of Appeal held that: -“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.” 13.The Applicants bear the burden of showing the substantial loss they are likely to suffer if no stay is ordered. This recognises that both parties have rights; the Appellants to their Appeal, including the prospect that it will not be rendered nugatory; and the decree holder to the decree, including the full benefits under the decree. In balancing the two competing rights, the Court focuses on their reconciliation, which is not a question of discrimination.Regarding substantial loss, the Applicant has advance various grounds on why they would suffer substantial loss 14.The Applicant has indicated that if execution occurs, they accounts would affect other beneficiaries as it is not just the 2nd Respondent who has a trust with them and it will prejudice the other beneficiaries. Further the Appellant has advanced the argument that the execution would have them fail to meet their obligations such as failing to meet payroll obligations, settle debts to creditors and meet statutory obligation. All these arguments raised have not ben substantiated with any documentary documents. The Appellant alleged other beneficiaries benefit from the trust and in this case, they should be able to provide documentary evidence of the amounts held on before of the other beneficiaries or receipts to show remittance of cash to the other beneficiaries. The 1st Defendant is in possession of a payment voucher addressed to th e2nd Defendant from the 1st Appellant, meaning if there are other beneficiaries, the Appellant should have such payment vouchers as well.I hold that substantial loss on this limb has not been established. 15.Neither has the Appellant produced documentary evidence to indicate that it runs a payroll that will be affected by execution and any list of creditors that are being paid from the trust 16.The Appellant have merely made generalized allegations and has failed to establish actual substantial loss.The principle that execution of a lawful given decree does not automatically amount to substantial loss would be applicable here .A successful litigant is entitled to enjoy the fruits of his judgment. This principle was aptly stated in Machira T/A Machira & Co. Advocates v East African Standard (No.2) [2002] KLR 63, where the court observed that:-“A successful party is entitled to the fruits of his judgment and should not be deprived of the same without just cause.”However, each case must be determined on its own individual circumstances. The court must balance the right of the successful litigant to enjoy the fruits of judgment against the equally important right of an unsuccessful litigant to pursue an appeal. 17.On the issue of delay it is evident that the application was filed on the same date of the ruling hence no delay.This court is satisfied that the application was filed without unreasonable delay. 18.On security, Order 42 Rule 6(2)(b) of the Civil Procedure Rules is couched in mandatory terms. In Focin Motorcycle Co. Limited v Ann Wambui Wangui & another [2018] KEHC 8358 (KLR), the court held that: -“In Arun C Sharma -V- Ashana Raikundalia T/A Rairundalia & Co. Advocates Justice Gikonyo the Court stated 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’’ 19.The Applicant has expressed willingness to abide to the conditions set forth by the court for for due performance of decree. The Supreme Court in Westmont Holdings SDN BHD v Central Bank of Kenya & 2 others [2023] KESC 11 (KLR) held that: -“A court could impose a condition precedent when imposing an order for security for costs in special and exceptional circumstances, such as extraordinary and important cases, for instance, election petitions. The same was, however, to be done in a manner that was reasonable and not to punish or subdue a genuine claim. In that regard, imposing a condition precedent was not in itself unconstitutional, provided it was not unreasonable to the extent that it impeded a party’s access to justice.” 20.Having considered all the circumstances, this court finds that the Applicant/Appellant has not satisfactorily demonstrated substantial loss. However, in balancing the right of appeal with the 1st Respondents’ right to enjoy fruits of their judgment, it is in the interest of justice that the discretion is exercised conditionally. 21.On security, Order 42 Rule 6(2)(b) of the Civil Procedure Rules is couched in mandatory terms. In Focin Motorcycle Co. Limited v Ann Wambui Wangui & another [2018] KEHC 8358 (KLR), the court held that: -“ In Arun C Sharma -V- Ashana Raikundalia T/A Rairundalia & Co. Advocates Justice Gikonyo the Court stated 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 differentt 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”. The Applicant has expressed willingness to abide by any conditions but has not made a concrete proposal.In this case so as not to prejudice the 1st Respondent should the appeal succeed, and the Applicants willing to be guided based on this court’s discretion, I find that the reasonable thing will be for the Applicants to deposit the entire security for due performance of the decree in a joint interest earning account .I consider a sum of Kshs. 15,000,000/= to be appropriate security for the due performance of the Decree. 22.The Applicant indicates that their appeal raises arguable points and hence the court should consider this and allow for stay so as not to render the appeal nugatory. A cursory look at the Memorandum of Appeal reveals that the appeal revolves around weighty issues of law and facts. These are not frivolous matters. Court of Appeal has consistently held that arguability does not mean the appeal must succeed, but that it raises at least one bona fide issue deserving consideration. In Muringa Company Ltd v Archdiocese of Nairobi Registered Trustees Civil Application No. 190 of 2019, the Court reiterated that the prospects of success of the intended appeal, even if only prima facie, are relevant. In the present case, the Applicant points to the precedent in Saroya & another v Eastadil International Limited (Civil Appeal E189 of 2025) [2025] KEHC 12177 (KLR) (Civ)(8 May 2025) where the court stated that the applicable standard in determining whether an appeal is arguable or not is that there should be at least one ground worthy of judicial consideration, Accordingly, I am satisfied that the intended appeal is arguable within the meaning of the authorities. Final disposition 23.Consequently, and in the interests of justice, I allow the application for stay of execution pending the hearing and determination of this appeal on the following termsi.There shall be a stay of execution of the ruling dated 19th December 2025 pending hearing and determination of the appeal.ii.The stay is conditional upon the Applicant depositing a sum of Kshs. 15,000,000/= in a joint interest-earning account in the names of the advocates for the parties within thirty (30) days from the date of this ruling, in default the stay shall automatically lapse and the 1st Respondent is at liberty to execute.iii.The Applicant status quo remains.iv.Costs of the application shall abide the outcome of the appeal.It is so ordered. DATED, SIGNED AND DELIVERED VIA E-MAIL AT NAIROBI ON THIS 15TH DAY OF JULY 2026.MOHAMMED N. KULLOWJUDGE