John Riungu M’mutea & 5 others v Gladys Njeri Waruiru & 2 others

2. The grounds for the application are outlined both in the application itself and reiterated in the supporting affidavit of John Riungu M’Mutea, sworn on 30th November 2024, wherein he deposed that he has the authority of the other applicants to swear the affidavit; that in a judgment delivered on 1st February 2024, the court concluded that the applicants had not proven their case against the 1st and the 2nd respondents and the suit was dismissed, with costs awarded to the 1st and 2nd respondents; the 1st and 2nd respondents filed a bill of costs dated 22nd July 2024 against the applicants, and a ruling scheduled to be delivered on 21st November 2024; the respondents are likely to execute the decree; and may dispose of the parcel of land before the appeal is heard and determined, which would render the appeal nugatory; and that it is in the interests of justice to preserve substratum of appeal. 3. In opposition, the 1st respondent filed a replying affidavit dated 7th February 2025 on his behalf and that of the 2nd respondent; he averred that the trial court dismissed the suit; the current application was filed after considerable delay; it is unclear how the payment of costs, as ordered in Meru ELC Case No. E024 of 2021 would render the appeal nugatory, as paid costs are refundable; no evidence has been provided to show that the subject of the dispute is in the process of being alienated or disturbed in any way; the application is based solely on insinuations and conjecture; it lacks merit and ought to be dismissed with costs. 4. Learned counsel for the applicants in his submissions dated 7th February 2025 urged that rule 5(2)(b) of the Rules empowers this Court to grant such orders that are necessary to stop the enforcement of a lower court's decision while the appeal is pending hearing, and that without the stay, the applicants would suffer substantial loss. Counsel further submitted that the applicants have demonstrated the requirements and in support relied on the case of Cabinet Secretary Ministry of Health vs. Aura & 13 Others (Civil Application E583 of 2023(2024) KECA 2 (KLR), where this Court held that the jurisdiction to grant stay lay at the discretion of the court; the applicant must have an arguable appeal; an appeal was likely to be rendered nugatory unless the orders sought were granted and it was in the public interest to grant the orders sought. 5. As relates to the injunction, counsel contended that it is necessary to preserve the subject matter during the appeal process, to ensure the appeal will not be rendered futile. He submitted further, that the suit property is their ancestral land, and its disposal would lead to irreparable harm due to their deep emotional connection to it. 6. By the time of hearing the application, the respondents had not filed their submissions. 7. Rule 5 (2)(b) of the Court’s Rules provides as follows: (2) Subject to sub-rule (1), the institution of an appeal shall not operate to suspend any sentence or to stay execution, but the Court may— (b) 8. in any civil proceedings where a notice of appeal has been lodged in accordance with rule 77, order a stay of execution, an injunction or a stay of any further proceedings on such terms as the Court may think just. To succeed in an application under Rule 5(2)(b) of the Rules, an applicant has to satisfy two principles that are enumerated in many decisions of this Court, namely: i. An applicant must demonstrate that they have an arguable appeal; and ii. That the intended appeal (or appeal if already filed) will be rendered nugatory if the execution of the decree, or order of proceedings is not stayed. https://new.kenyalaw.org/akn/ke/judgment/keca/2025/2138/eng@2025-11-28 2

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9. On the first limb of this twin principle, this Court held in David Morton Silverstein vs. Atsango Chesoni [2002] eKLR, that for an order of stay to be issued, the applicant must first demonstrate that the appeal or intended appeal is arguable, that is, it is not frivolous and that the appeal or intended appeal, would in the absence of a stay, be rendered nugatory. 10. Regarding the sufficiency of the pleaded grounds of appeal to warrant a grant of the stay of the orders sought, this Court in Yellow Horse Inns Ltd vs. A. A Kawir Transporters & 4 Others [2014] eKLR, observed that an applicant need not show a multiplicity of arguable points, as one arguable point would suffice. Neither is the applicant required to show that the arguable point would succeed, as this Court held in Kenya Commercial Bank Limited v. Nicholas Ombija [2009] eKLR. 11. The applicants had sought a declaration that property KIAMURI “A”/611, registered in the name of the deceased or the representative of their estate, was acquired fraudulently; a declaration that the property belongs to the applicants and 78 others; rectification of the register; an order for the execution of a transfer; damages; and costs. The trial court dismissed the applicants’ claim. The parties were not ordered to do anything or refrain from doing anything. 12. No draft memorandum of appeal was annexed to the application; neither do the applicants speak to the intended grounds of appeal in their grounds in support of the application, nor the affidavit in support, such that the Court is in the dark on whether the intended appeal is arguable. 13. The applicants contend that the respondents have filed for a bill of costs, which we suppose was heard, and the parties are awaiting a ruling. Furthermore, they express concern that the respondents may pursue costs before the appeal is heard and determined. Costs, if paid out to the respondents, are recoverable should the intended appeal succeed. Indeed, payment of costs cannot render the intended appeal nugatory. 14. In the case of Nthiga vs. Keeru & 2 Others (Civil Application 19 of 2020) [2024] KECA 320 (KLR) (22 March 2024), the court stated: “ This Court has pronounced itself articulately on the stay of negative orders. In the appeal before the ELC, the parties were not ordered to do anything or to refrain from doing anything. What was therefore issued is in the nature of a negative order incapable of execution, and as such, there is nothing to stay. See Western College of Arts and Applied Sciences v EP Oranga & 3 others [1976] eKLR, where the learned Judges stated thus: “What is there to be executed under the judgment, the subject of the intended appeal?" The High Court has merely dismissed the suit, with costs. Any execution can only be in respect of costs. In Wilson v Church, the High Court had ordered the trustees of a fund to make a payment out of that fund. In the instant case, the High Court has not ordered any of the parties to do anything, or to refrain from doing anything, or to pay any sum. There is nothing arising out of the High Court judgment for this Court; in an application for a stay, it is so ordered.” Similarly, in Raymond M. Omboga vs. Austine Pyan Maranga Kisii HCCA No 15 of 2010, Makhandia, J. (as he then was) stated thus: “The order dismissing the application is in the nature of a negative order and is incapable of execution save, perhaps, for costs and such order is incapable of stay. Where there is no positive order made in favour of the respondent which is capable of execution, there can be no stay of execution of such an order...The applicant seeks to appeal against the order dismissing his application. This is not an order capable of being stayed because the applicant has not lost anything. The refusal simply means that the applicant stays in the situation he was in before coming to court, https://new.kenyalaw.org/akn/ke/judgment/keca/2025/2138/eng@2025-11-28 3

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and therefore the issues of substantial loss that he is likely to suffer and or the appeal being rendered nugatory do not arise..." 15. In the end, the applicants having failed to satisfy the twin principles, we find the application devoid of merit and dismiss it with costs to the respondents. DATED AND DELIVERED AT NYERI THIS 28TH DAY OF NOVEMBER, 2025. S. OLE KANTAI ......................... JUDGE OF APPEAL J. LESIIT ......................... JUDGE OF APPEAL ALI-ARONI ......................... JUDGE OF APPEAL I certify that this is a true copy of the original. Signed DEPUTY REGISTRAR https://new.kenyalaw.org/akn/ke/judgment/keca/2025/2138/eng@2025-11-28 4

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