Thiong'o (Suing in her capacity as the administrator of the Estate of the Late Dedan Thiong'o Kingangi - Deceased) v Thube (Environment and Land Case 1186 of 2015) [2026] KEELC 3429 (KLR) (5 June 2026) (Ruling)

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT NAIROBI** **ELC NO. 1186 OF 2015** **JANE WANJIRU THIONG'O (Suing in her capacity as the administrator of the Estate of the late DEDAN THIONGʻO KINGANGI (Deceased)............DECREE HOLDER/RESPONDENT** **VERSUS** **SAMUEL KIMANI THUBЕ......JUDGMENT DEBTOR/APPLICANT** **RULING** 1. Before this court for determination is the Judgment Debtor’s/Applicant’s Notice of Motion dated 11th November, 2024 brought pursuant to the provisions of **Section 3A** of the **Civil Procedure Act** and **Order 42 Rule 6** of the **Civil Procedure Rules**, seeking the following reliefs: 1. ***That pending the hearing and final determination of the Appeal (Court of Appeal Civil Appeal No. 399 of 2024), there be a stay of the orders issued by the court vide its judgment dated 7th March 2024.*** 2. ***That the costs of this application do abide the outcome of the application.*** 2. The application is based on the grounds on the face of the motion and supported by the affidavit of Samuel Kimani Thube, of an even date. He deponed that judgment in the subject matter was delivered on 7th March, 2024 and a decree subsequently issued. He is dissatisfied with the said judgment, and has instituted an appeal in the Court of Appeal vide **CA 399 of 2024 - Samuel Kimani Thube -vs- Jane Wanjiru Thiongo**. 3. According to Mr Thube, the impugned judgement contains drastic orders including those restraining him from accessing the suit property. In granting these reliefs, he stated, the court did not appreciate that he had been in possession of the property since 1992, having constructed residential houses on the same which have for decades been occupied by tenants. 4. Further, he explained, and strangely so, the court restrained him from being involved in the succession matter relating to the said property which exclusion greatly prejudices his rights to articulate his ownership of the suit property either before this court or any other court of competent jurisdiction. 5. He deposed that unless the orders sought are granted, he stands to suffer substantial prejudice and loss; that the pending appeal risks being rendered nugatory and that the issue of security does not arise in the circumstances of the present matter, noting that the judgment did not involve any monetary award. 6. Nevertheless, he expressed his willingness to comply with any reasonable conditions that this court may impose as a prerequisite for the grant of stay orders. 7. The Respondent swore a replying affidavit dated 4th February, 2025. At the outset, she deponed that the present application had been filed on 19th November 2024, approximately eight months after the delivery of the judgment. She averred that by the time the application was lodged, she had already commenced enjoying the fruits of the judgment. It was further her position that the Applicant had failed to offer any satisfactory explanation for the inordinate delay in bringing the application. 8. She explained that the Applicant’s alleged ownership and possession of the suit property was borne out of acts of intermeddling with the estate of the deceased owner; that the Applicant is not a beneficiary in the Estate of the deceased registered owner of LR No. Dagoretti/Uthiru/988 and that the court did not err in making the determination that the issue of ownership and distribution of the suit property should be determined by the High court, Family Division, to his exclusion. 9. According to the Respondent, the orders the Applicant seeks will have the effect of allowing him to use the property of a deceased proprietor without any colour of right and deny the Estate of the deceased proprietor its rightful use of the suit property. Further, it was deposed that the applicant will not be prejudiced nor will he suffer loss if this court refuses to empower his intermeddling activities. 10. The Applicant filed submissions on 18th March 2025. Counsel submitted that the Applicant had been in occupation of the suit property since 1992 and had undertaken developments thereon. It was argued that one of the effects of the impugned judgment was to restrain him from trespassing, alienating, damaging or continuing construction on the suit property and that unless stay is granted, the Applicant will suffer substantial loss. Reliance was placed on ***James Wangalwa & Another vS Agnes Naliaka Cheseto******[2012] eKLR.*** 11. Counsel further cited ***Butt vs. Rent Restriction Tribunal [1979]eKLR***and ***HGE vs SM [2020]eKLR*** and submitted that the court’s discretion ought to be exercised in a manner that does not render the appeal nugatory and that stay should ordinarily be granted where there are good grounds and no overwhelming hindrance. 12. Counsel further submitted that the impugned judgment effectively excluded the Applicant from participation in the Family Division proceedings concerning the distribution of the suit property. It was argued that, unless a stay is granted, the property could be distributed or alienated before the appeal was determined, thereby rendering the appeal nugatory and any success on appeal merely academic. 13. On delay, counsel submitted that although the Respondent alleged that the application had been filed eight months after delivery of judgment, the delay was not unreasonable in the circumstances of an appeal process involving extraction of typed proceedings. 14. Counsel pointed out that immediately after delivery of the judgment, the Applicant filed a notice of appeal and a letter requesting typed proceedings, demonstrating a consistent intention to challenge the judgment. It was argued that preservation of the subject matter and avoidance of the appeal being rendered nugatory outweighed a strict computation of time. 15. The Respondent’s counsel filed submissions on 20th March 2026. Counsel submitted that under **Order 42 Rule 6** of the **Civil Procedure Rules,** an applicant seeking stay of execution pending appeal must demonstrate that substantial loss will result unless the orders sought are granted. Further, as expressed in ***Francis K Chabari & Another vs Mwarania Gaichura Kairubi[2022]eKLR***, a stay pending appeal is intended to prevent a successful appellant from obtaining a barren or nugatory result on appeal. 16. Counsel submitted that the Applicant had failed to demonstrate that the intended appeal had any prospects of success. It was argued that the Applicant’s claim arose from an alleged purchase of the suit property from a deceased administrator of the Estate of John King’angi, yet there were three administrators of the estate and none of the others had testified or consented to the alleged sale. 17. Counsel further submitted that the purported sale took place before confirmation of grant and therefore amounted to intermeddling with the estate within the precincts of **Section 82(b)** of the **Law of Succession Act**. 18. On the issue of delay, counsel submitted that **Order 42 Rule 6** also requires an application for stay to be brought without unreasonable delay. Reliance was placed on ***Muthini vs Ngando [2026] KEHC 771 (KLR)*** where the court found a delay of approximately three months to be unreasonable. 19. Counsel submitted that the application, having been filed nearly nine months after judgment, was brought after inordinate and unexplained delay contrary to **Order 42 Rule 6**, thereby prejudicing the successful litigant. Counsel therefore urged the court to dismiss the application with costs, maintaining that the underlying transaction was illegal and incapable of validation on appeal. **Analysis and Determination** 1. Having considered the Motion, affidavits and submissions, the sole issue that arises for determination is whether the Applicant has satisfactorily demonstrated the conditions warranting the grant of stay of execution pending Appeal. 2. The law with respect to stay of execution pending appeal is found in **Order 42 Rule 6(1)** and **(2)** of the **Civil Procedure Rules, 2010** which 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 appeal case of 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; 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.”*** 1. In ***Vishram Ravji Halai vs. Thornton & Turpin Civil Application No. Nai. 15 of 1990 [1990] KLR 365*,** the Court of Appeal, discussing the High Court’s [read ELC’s] jurisdiction under this Order stated: *“****The Superior Court’s discretion to order a stay of execution of its order or decree is fettered by three conditions. Firstly, the applicant must establish a sufficient cause, secondly the court must be satisfied that substantial loss would ensue from a refusal to grant a stay and thirdly the applicant must furnish security. The application must of course be made without unreasonable delay.”*** 1. What arises from the foregoing is that the grant of orders of stay of execution is subject to the court’s discretion, the court in this respect being guided by the provisions of **Order 42 Rule 6** of the **Civil Procedure Rules.** The question of how the court should exercise this discretion was extensively discussed by the Court of Appeal in ***Butt vs Rent Restriction Tribunal [1982] KLR 417*** as follows: *“****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 that 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.*** ***5. The court in exercising its powers 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.”*** 1. Further to the above, this court is now enjoined to give effect to the overriding objectives in the exercise of its powers as expressed in **Section 3** of the **Environment and Land Court Act** and **Section 1A** of the **Civil Procedure Act** *to wit* the just, expeditious, proportionate and affordable resolution of disputes. 2. By way of brief background, the Respondent as the Plaintiff instituted this suit seeking *inter-alia*, a declaration that the Estate of the deceased is the lawful exclusive owner of plot Dagoretti/Uthiru L.R Number 988 situate in Dagoretti and injunctive orders restraining the Applicant, as the Defendant, from trespassing, alienating, damaging and/or continuing construction on the aforesaid parcel. 3. The Respondent’s case was that the late Dedan Thiong’o Kingangi was the sole registered proprietor of Dagoretti/Uthiru L.R No. 988 and that the Applicant had unlawfully trespassed onto the suit property and intended to undertake construction thereon, thereby interfering with the Estate’s ownership and quiet possession. The Plaintiff further contended that attempts to resolve the dispute amicably through the police and provincial administration were unsuccessful. 4. The Applicant denied the claim and asserted that he was a bona fide purchaser for value without notice of any defect in title. He stated that in 1992, he entered into a sale agreement with the deceased for the purchase of a quarter acre excised from Dagoretti/Uthiru L.R No. 222 being the suit parcel. 5. He maintained that that he paid the full purchase price, was given possession by the deceased in August 1992, and had remained in occupation ever since, although the deceased failed to execute transfer documents. 6. The Respondent further averred that he had instituted HCCC No. 5347 of 1993 seeking specific performance before the deceased passed away, and that subsequent succession proceedings in Nairobi Succession Cause No. 676 of 2006 acknowledged the interests of various protestors, including himself. 7. He filed a counterclaim in which he sought declarations that Dagoretti/Uthiru L.R No. 988 lawfully belonged to him, injunctive relief restraining the Plaintiff and administrators of the Estate from evicting him, and an order directing registration of the property in his name. 8. Vide its judgment delivered on 7th March, 2024, this court found in favour of the Respondent and issued an injunction restraining the Applicant from trespassing onto, alienating, damaging and/or continuing with construction on parcel Dagoretti/Uthiru/988 situate in Dagoretti. The court further held that the issue of ownership and distribution of Dagoretti/Uthiru/988 fell for determination before the High Court, Family Division, to the exclusion of the Applicant. 9. Aggrieved by this decision, the Applicant intends to appeal to the Court of Appeal. He asks this court to stay the execution of the aforesaid judgment and the decree arising therefrom pending determination of the appeal. 10. Moving to the pre-requisites under **Order 42 Rule 6(2),** the court will begin with the aspect of sufficient cause. What constitutes the same was explicitly discussed by the court in ***Antoine Ndiaye vs. African Virtual University [2015] eKLR,*** which persuasively stated: ***“The relief of stay of execution pending appeal is governed by Order 42 Rule 6 of the Civil Procedure Rules. The relief is discretionary although, as it has been said often, the discretion must be exercised judicially, that is to say, judiciously and upon defined principles of law; not capriciously or whimsically. Therefore, stay of execution should only be granted where sufficient cause has been shown by the Applicant. And in determining whether sufficient cause has been shown, the court should be guided by the three prerequisites provided under Order 42 Rule 6 of the Civil Procedure Rules, that:*** ***a) The application is brought without undue delay;*** ***b) The court is satisfied that substantial loss may result to the Applicant unless stay of execution is ordered; and*** ***c) 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.”*** 1. The court concurs. In determining whether sufficient cause has been established, the court will examine whether the Applicants have satisfied the three mandatory prerequisites to the grant of stay pending appeal. 2. Beginning with delay, what constitutes unreasonable delay was discussed in the case of ***Jaber Mohsen Ali & Another vs Priscillah Boit & another [2014] eKLR*** where Munyao J.(as he then was) stated: *“****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. In the case of Christopher Kendagor v Christopher Kipkorir, Eldoret E&LC 919 of 2012 the applicant had been given 14 days to vacate the suit land. He filed an application one day after the 14 days. The application was denied, the court holding that, the application ought to have come before expiry of the period given to vacate the land.”*** 1. In the present case, the judgment was delivered on 7th March, 2024. The Memorandum of Appeal is dated 27th May, 2024, while the present application was not filed until 11th November, 2024. This is a delay of about eight months from the date of judgment and nearly six months from the date of the Memorandum of Appeal. 2. The Applicant has not offered any satisfactory explanation for this delay. While counsel attributed the delay to the process of obtaining typed proceedings and pursuing the appeal, the court is unable to accept that explanation. Proceedings are not a requirement for a party to move the court for stay of execution. 3. Indeed, proceedings are not a prerequisite to the filing of an application under **Order 42 Rule 6** of the **Civil Procedure Rules**. The Applicant was aware of the judgment immediately upon its delivery on 7th March, 2024 and demonstrated his intention to appeal by filing a Memorandum of Appeal on 27th May, 2024. 4. Despite this, he waited until 11th November, 2024 to seek stay. In the court's view, the delay of approximately eight months from the date of judgment, and nearly six months after filing the appeal, is inordinate and has not been satisfactorily explained. Such delay undermines the requirement under **Order 42 Rule 6** that an application for stay be brought without unreasonable delay and prejudices the successful litigant's right to enjoy the fruits of the judgment. Accordingly, the court finds that the Applicant has failed to satisfy this limb of the test. 5. Moving to the aspect of substantial loss. In ***Rhoda Mukuma vs John Abuoga [1988] eKLR***, the court proffered the following definition of substantial loss: *“****Granting a stay in the High Court is governed by Order XLI rule 4(2), the questions to be decided being – (a) whether substantial loss may result unless the stay is granted and the application is made without delay; and (b) the applicant has given security. The discretion under rule 5(2)(b) is at large, but as was pointed out in the Kenya Shell case substantial loss is the cornerstone of both jurisdictions. That is what has to be prevented, because such loss would render the appeal nugatory…”*** 1. Similarly, the court in ***Century Oil Trading Company Ltd vs Kenya Shell Limited as cited in Muri Mwaniki & Wamiti Advocates Vs Wings Engineering Services Limited [2020] eKLR***, held: *“****The word 'substantial' cannot mean the ordinary loss to which every judgment debtor is necessarily subjected when he loses his case and is deprived of his property in consequence. That is an element which must occur in every case and since the Code expressly prohibits stay of execution as an ordinary rule it is clear the words 'substantial loss' must mean something in addition to all different from that.”*** 1. The courts have also held that substantive loss must be demonstrated. This position was articulated by the Court of Appeal in ***Kenya Shell Limited vs Benjamin Karuga Kibiru & another [1986] eKLR*** thus: *“****It is usually a good rule to see if Order 41 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 cornerstone of both jurisdictions for granting stay.”*** 1. The court in ***James Wangalwa & Another vs Agnes Naliaka Cheseto [2012] eKLR*** similarly opined that the process of execution alone does not amount to substantial loss. It stated as follows: *“****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. This is what substantial loss would entail…”*** 1. The court is also alive to its duty to balance the interests of an Applicant who is seeking to preserve the status quo pending the hearing of the appeal so that his/her appeal is not rendered nugatory, and the interests of a Respondent who is seeking to enjoy the fruits of his judgment. The Applicant contends that he will suffer substantial loss if stay is not granted because the impugned judgment restrains him from accessing, occupying or continuing activities on the suit property which he claims to have occupied since 1992, and upon which he states he has undertaken developments and accommodated tenants for decades. 2. He further argues that the judgment excluded him from participating in succession proceedings concerning the suit property and that, unless stay is granted, the property may be distributed or otherwise dealt with before the intended appeal is heard, thereby rendering the appeal nugatory. 3. The Respondent, on the other hand, maintains that the Applicant’s occupation amounts to intermeddling with the estate of the deceased proprietor and that granting stay would unjustly deny the Estate the fruits of a lawful judgment. 4. The court has carefully considered the parties’ rival positions in light of the settled principles outlined above. The Applicant’s assertion of occupation of the suit property is not disputed. The impugned judgment restrains him from accessing, occupying, or continuing activities on the property. If those orders are enforced before the appeal is heard, the Applicant stands to lose possession and control of property. Such loss transcends the ordinary inconvenience associated with execution and may fundamentally alter the status quo obtaining on the ground. 5. The court is further persuaded that the Applicant has demonstrated a real risk of the intended appeal being rendered nugatory. The judgment not only restrained the Applicant from the suit property but also directed that the question of ownership and distribution of the property be determined in the succession proceedings to his exclusion. 6. Consequently, there exists a possibility that the property may be distributed, transferred, or otherwise dealt with before the appeal is determined. Should the Court of Appeal ultimately find merit in the Applicant’s challenge to his exclusion from those proceedings or to the dismissal of his claim, restoring the status quo may prove difficult and could occasion further litigation. In those circumstances, the court is satisfied that the Applicant has demonstrated substantial loss. 7. Moving to the last issue regarding provision of security, its purpose was discussed by the court in ***Arun C Sharma vs. Ashana Raikundalia t/a Rairundalia & Co. Advocates & 2 others [2014] eKLR***, thus: *“****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.”*** 1. While in ***Focin Motorcycle C. Ltd vs Ann Wambui Wangui [2018] eKLR,*** it was stated that: *“****Where the applicant proposes to provide security as the Applicant has done, it is a mark of good faith that the application for stay is not just meant to deny the respondent the fruits of judgment. My view is that it is sufficient for the applicant to state that he is ready to provide security or to propose the kind of security but it is the discretion of the court to determine the security. The Applicant has offered to provide security and has therefore satisfied this ground of stay.”*** 1. The court is so guided. While the Applicant has not proposed any specific form of security, he has intimated his willingness to abide by the court’s direction on the same. The same is sufficient. 2. It is trite that the three (3) conditions for granting stay of execution pending appeal must be met simultaneously. They are conjunctive and not disjunctive. Whereas the Applicant has adequately demonstrated sufficient loss and has indicted willingness to offer security as granted by the court, he did not timeously file the Motion. 3. For those reasons, the application dated 11th November, 2024 fails and is dismissed with costs. **Dated, signed and delivered virtually in Nairobi this 5th day of June, 2026.** **O. A. Angote** **Judge** **In the presence of:** Ms Kimani for Mr. Njenga for the Judgment Debtor/Applicant Ms Maina for the Decree Holder/Respondent Court Assistant: Tracy