https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11225

REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT KIAMBU CONSTITUTIONAL AND HUMAN RIGHTS PETITION NO. E012 OF 2023 IN THE MATTER OF: PHYSICAL PLANNING MUNICIPAL ADMINISTRATION AND URBAN DEVELOPMENT COMMITTEE OF THE KIAMBU COUNTY ASSEMBLY AND IN THE MATTER OF: REMOVAL AND ELECTION OF THE CHAIRPERSON PHYSICAL PLANNING MUNICIPAL ADMINISTRATION AND URBAN DEVELOPMENT COMMITTEE OF THE KIAMBU COUNTY ASSEMBLY AND IN THE MATTER OF: ARTICLES 2, 3, 10, 47, 50, 174 AND 175 OF THE CONSTITUTION OF KENYA, 2010 AND IN THE MATTER OF: CONTRAVENTION OF THE KIAMBU COUNTY ASSEMBLY STANDING ORDERS BETWEEN HON. RUTH WAITHIRA WANJIKU……………….………………PETITIONER/RESPONDENT VS THE DEPUTY SPEAKER & CHAIRPERRSON LIASON COMMITTEE, COUNTY ASSEMBLY OF KIAMBU……...1st RESPONDENT/APPLICANT THE KIAMBU COUNTY ASSEMBLY….………………………2nd RESPONDENT/APPLICANT RULING 1. The Applicants filled a Motion dated 17th December 2025 brought under Article 48, 50 (1) and 159 of the Constitution, Order 10 Rule 11; Order 42 Rule 6 & Order 51 Rule (1) & (15) of the Civil Procedure Rules, Sections 1A,2,3 & 3A of the Civil Procedure Act seeking the following orders; a) Spent. HC CONST. PTITION NO.E012 OF 2023 RULING - Page 1 of 5 b) Spent. c) THAT there be a stay of the execution of the Judgement and Decree of this Honourable Court delivered on 16th August 2024 pending the hearing and determination of the intended appeal. d) THAT the costs of this Application be in the intended Appeal. 2. The Application was based on the grounds on its face and on the Supporting Affidavit of John Mwivithi Mutie sworn on the same date. In it he indicated that Judgement in this matter was delivered on 16th August 2024 where the Court declared that the Respondents/Applicants had violated the Petitioner/Respondent’s constitutional rights and thus Petitioner was awarded damages in the amount of Kshs.500,000/=. 3. The Application herein was unopposed and the issue that arose for determination is whether to grant a stay of execution of the judgement dated 16th August 2024 pending the hearing and determination of the intended appeal. 4. The test for the grant of a stay of execution pending appeal is as set out in Order 42, Rule 6 of the Civil Procedure Rules. Order 42 Rule 6(2) of the Civil Procedure Rules states that: “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 HC CONST. PTITION NO.E012 OF 2023 RULING - Page 2 of 5 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". 5. The Applicants in their submissions argued that they stand to suffer substantial loss unless the orders sought are granted as they will be required to pay the Petitioner/Respondent Kshs.500,000/= together with costs. The Applicants also state that the intended appeal, which is arguable, risks being rendered nugatory unless the orders sought are granted. 6. In support, the Applicants cited Government of Nyamira v Bwoma (Civil Appeal E030 of 2024) [2025] KEHC 672 (KLR) (23 January 2025) (Ruling), that cited with approval the decision in James Wangalwa & Another v Agnes Naliaka Cheseto (2012) eKLR where the Court discussed what amounts to substantial loss and held 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 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 HC CONST. PTITION NO.E012 OF 2023 RULING - Page 3 of 5 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’’. 7. On security, the Applicants cited Order 42 Rule 8 of the Civil Procedure Rules which is explicit that no security shall be required from the Government in proceedings for stay of execution pending appeal. It provides; [8] No security to be required from the Government “No such security as is mentioned in rules 6 and 7 shall be required from the Government or where the Government has undertaken the defence of the suit or from any public officer sued in respect of an act alleged to be done by him in his official capacity. 8. It is the view of this Court that it is in the interest of justice to allow the Application for stay of execution noting that the money decree is to be settled from public funds. The Application herein is also unopposed. 9. The upshot is that the Application is allowed and the Judgement and Decree dated 16th August 2024 is stayed pending the hearing and determination of the intended Appeal. 10.Costs of this Application shall await the outcome of the intended Appeal HC CONST. PTITION NO.E012 OF 2023 RULING - Page 4 of 5 and the successful party or parties in that Appeal shall have the costs of this Application. DATED, SIGNED, AND DELIVERED AT KIAMBU ON THIS 10TH DAY OF JUNE 2026 ………………………………………………………… BAHATI MWAMUYE MBS JUDGE HC CONST. PTITION NO.E012 OF 2023 RULING - Page 5 of 5