Hamisi Mwashobo Nyaki & another v Pijey Investments Limited & 4 others

iii. Pending the hearing and determination of the 1st Defendant/Applicant’s intended appeal to the Court of Appeal, execution of the whole of the judgment delivered on 3 rd June 2026, including all orders made therein, be stayed in its entirety and that any and all acts done in furtherance of execution pending determination of this Application and the intended appeal be set aside iv. Cost of the Application 2. The Application is premised on the grounds set out on its face and is supported by the Affidavit of Wilfers Mwangi Watunu sworn on 11 th June 2026. The deponent describes himself as the General Manager of the 1st Defendant. He states that the judgment was delivered in open Court on 3rd June 2026 and was received by the 1st Defendant on 10th June 2026. 3. The 1st Defendant avers that the orders arising from the said Judgment are as follows: i. The documents and the title held by the 1 st Defendant were cancelled and/or revoked ii. The Suit Property being Chembe/Kibabamshe/408 was ordered to be registered in the name of the late Mashomno Nyaki Mwachambi and the Plaintiff Respondents MALINDI ELCC E017 OF 2021 (RULING) Page 2

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iii. A permanent injunction was issued restraining the 1 st Defendant from interfering with the estate of the late Mashomno Nyaki Mwachambi; and iv. Cost of the suit was awarded to the Plaintiffs 4. The 1st Defendant states that, immediately following delivery of the judgment, it instructed its advocates to lodge a Notice of Appeal and obtain the typed proceedings for purposes of pursuing an appeal before the Court of Appeal. It contends that unless execution is stayed, it will suffer substantial and irreversible loss, principally because it has held the title to the suit property continuously since 14th March 1994. It maintains that cancellation of its title and registration of the property in favour of other persons cannot adequately be reversed through an award of damages. According to the 1st Defendant, once its proprietary interest is extinguished and the property registered in other names, a successful appeal may be rendered nugatory. It further states that the suit property was valued at approximately KES 165 million by a Government Valuer in connection with Malindi Criminal Case No. CR 565 of 2025. 5. The 1st Defendant also expresses apprehension that the suit property may be alienated before the intended appeal is determined. In this regard, it refers to a statement made to the police by Cecilia Kahindi Karisa, whom it describes as a purported beneficiary of the estate of the late Mashomno Nyaki Mwachambi and a sister of the 2 nd Plaintiff, MALINDI ELCC E017 OF 2021 (RULING) Page 3

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Shida Kahindi Karisa. The 1st Defendant contends that the statement, recorded in connection with Malindi Criminal Case No. CR 565 of 2025, indicates that part of the suit property had been sold to a third party. It relies on that statement in support of its contention that there is a risk of alienation of the property. 6. The 1st Defendant further contends that the Plaintiffs are persons of unknown means and fixed abode and may therefore be unable to make restitution should the intended appeal succeed after execution has taken place. It particularly relies on the alleged value of the property, stated to be KES 165 million. It also maintains that the Plaintiffs do not reside on the suit property. As regards prejudice, the 1 st Defendant argues that the Plaintiffs would suffer no substantial prejudice if the status quo were maintained pending the appeal, pointing out that the late Mashobo Nyaki Mwachambi died in 1994 and that the Plaintiffs did not challenge the 1st Defendant’s title until the filing of the present proceedings in 2021. 7. On the intended appeal, the 1st Defendant contends that the appeal raises arguable issues with a probability of success. It maintains that it is the registered proprietor of Chembe/Kibabamshe/691 and 692, which it describes as lawful subdivisions of the original parcel Chembe/Kibabamshe/408. It states that the original property was purchased in 1994 and subdivided in 2000. The 1 st Defendant further challenges the Plaintiffs’ locus standi, contending that their claim is founded upon a grant of letters of administration issued in Malindi MALINDI ELCC E017 OF 2021 (RULING) Page 4

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Chief Magistrates’ Court Succession Cause No. 62 of 2017, the validity of which, it states, is the subject of High Court Civil Appeal No. HCCA E046 of 2026 at Malindi. It also refers to Malindi ELC No. 86 of 2011 as another matter concerning ownership of the suit property and identifies various aspects of the judgment which it intends to challenge on appeal. 8. The Application is opposed. The Plaintiffs responded through a Replying Affidavit sworn by Shida Kahindi Karisa on 2 nd July 2026. The 2nd and 3rd Defendants filed Grounds of Opposition dated 7th July 2026, while the 5th Defendant filed Grounds of Opposition dated 6th July 2026. 9. The Plaintiffs contend that they would themselves suffer substantial prejudice if execution were stayed. They state that a stay would prevent them from putting the suit property to beneficial use, interfere with their peaceful occupation and enjoyment of the property, and deprive them of the fruits of the judgment. They further maintain that the estate of the deceased and its beneficiaries have for a long period been deprived of the peaceful use and enjoyment of the property as a result of the dispute over the 1st Defendant’s alleged ownership. They contend that granting the orders sought would expose them to hardship, prejudice and possible eviction, particularly in view of the 1 st Defendant’s assertion that it is in occupation of the property, which they dispute. MALINDI ELCC E017 OF 2021 (RULING) Page 5

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10. The Plaintiffs further contend that the 1 st Defendant has not placed before the Court evidence demonstrating that it would suffer substantial loss if stay were declined. They also take issue with the absence of security for the due performance of the decree, particularly in light of the 1st Defendant’s own assertion that the property is valued at KES 165 million. They further question the 1 st Defendant’s contention that the Plaintiffs cannot be traced, pointing out that the Plaintiffs were represented throughout the proceedings by counsel. 11. The 2nd and 3rd Defendants, through their Grounds of Opposition, contend that the Application does not satisfy the requirements for stay of execution under Order 42 Rule 6 of the Civil Procedure Rules. They further contend that granting a stay would undermine the finality of litigation and the overriding objective of the Court. They state that the effect of a stay would be to deprive the Plaintiffs of the fruits of a judgment obtained after litigation commenced in 2021 and would allow the continued existence of the title held by the 1 st Defendant, which the Court had found to have been acquired fraudulently. They also contend that the 1st Defendant has failed to demonstrate that it has furnished security and maintain that the Application constitutes an abuse of the process of the Court. 12. The 5th Defendant similarly opposes the Application. It contends that the 1st Defendant has not satisfied the requirements under Order 42 Rule 6(2) of the Civil Procedure Rules and has not demonstrated any substantial loss that it would suffer if stay were declined. In particular, MALINDI ELCC E017 OF 2021 (RULING) Page 6

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it maintains that the 1st Defendant is not in physical occupation of the suit property and that any loss it may suffer is monetary and can adequately be compensated by damages or costs. The 5th Defendant further maintains that the judgment was based on the evidence before the Court and that the issues raised by the intended appeal, including res judicata, limitation and the alleged grant of orders beyond the pleadings, had already been considered in the judgment. 13. The 5th Defendant further contends that the balance of convenience favours implementation of the judgment, arguing that a stay would perpetuate the existing position in the land register and delay the enjoyment of the judgment by the estate of the late Mashobo Nyaki Mwachambi. It therefore urges that the orders cancelling the disputed titles and providing for registration in the name of the deceased or his administrators be allowed to take effect. It also characterizes the Application as a delay tactic intended to frustrate the Plaintiffs and undermine the 5th Defendant’s mandate in relation to historical land injustices. 14. In response to the opposition, the 1st Defendant filed a Further Affidavit sworn by Wilfers Mwangi Watunu on 14th July 2026. The 1st Defendant maintains that the responses filed by the Plaintiffs and the other Defendants do not substantively answer the grounds relied upon in the intended appeal but instead seek to defend the correctness of the judgment. It consequently maintains that the merits of the judgment are matters MALINDI ELCC E017 OF 2021 (RULING) for the intended appeal and not Page 7 for

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determination in the present Application. The 1 st Defendant also states that several averments in its Supporting Affidavit remain uncontroverted. 15. The 1st Defendant reiterates that the Application was filed without undue delay, having been lodged on 11 th June 2026, within the fourteen-day period of stay granted when judgment was delivered. It further reiterates its willingness to abide by any conditions that the Court may impose and maintains that, given the non-monetary nature of the decree, any security ought to be nominal. It also maintains that the Plaintiffs are not in occupation of the suit property and disputes their allegations concerning eviction and occupation. 16. The 1st Defendant further maintains that the Plaintiffs have not adequately addressed its concern regarding restitution should the intended appeal succeed. It contends that although the Plaintiffs disclosed the county in which they reside, they did not disclose their specific places of residence or demonstrate their financial ability to restore property valued at approximately KES 165 million. It therefore remains apprehensive that restitution may be difficult if execution proceeds before the appeal is determined. It also disputes the contention that the Plaintiffs’ advocates could be held accountable for any subsequent disposal of the property. 17. The 1st Defendant maintains that preservation of the status quo pending the intended appeal would occasion less prejudice than MALINDI ELCC E017 OF 2021 (RULING) Page 8

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allowing execution to proceed and subsequently attempting to reverse its consequences. It reiterates that it has held the registered title for more than three decades and observes that, according to the Plaintiffs’ own case, they waited for more than twenty years before instituting proceedings to assert their claim to the property. 18. In response to the 2nd and 3rd Defendants’ Grounds of Opposition, the 1st Defendant reiterates that the matters raised therein principally concern the merits of the judgment. In response to the 5 th Defendant, it takes issue with the reference in its Grounds of Opposition to a Notice of Motion dated 18th January 2026, stating that the said application had already been determined on 13th May 2026 and that the Application presently before the Court is the Notice of Motion dated 11 th June 2026. The 1st Defendant maintains that the remaining objections similarly concern the merits of the judgment, substantial loss, occupation of the property and the prejudice likely to arise depending on whether execution is stayed. 19. Finally, the 1st Defendant denies that the Application is a delay tactic. It maintains that it was brought within the period of stay granted by the Court upon delivery of judgment and seeks only to preserve the subject matter pending the intended appeal. It further states that, notwithstanding its previous judgment in Malindi ELC No. 86 of 2011 and its continued registration as proprietor, it has not sold, transferred, developed or otherwise dealt with the suit property. It nevertheless remains apprehensive that, unless execution is stayed, the property MALINDI ELCC E017 OF 2021 (RULING) Page 9

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may be alienated or third-party interests created before the intended appeal is heard. The 1st Defendant therefore reiterates its prayer that execution of the judgment be stayed pending the hearing and determination of the intended appeal. Parties’ Submissions 1st Defendant/Applicant’s Submissions 20. The 1st Defendant/Applicant submitted that the application is governed by Order 42 Rule 6(2) of the Civil Procedure Rules and that the three conditions for the grant of stay are whether substantial loss may result unless stay is granted, whether the application was made without unreasonable delay, and whether the Applicant has furnished such security as the Court may order for the due performance of the decree. Reliance was placed on Vishram Ravji Halai v Thornton & Turpin (1963) Ltd [1990] KLR 365 and Butt v Rent Restriction Tribunal [1982] KLR 417 on the principles governing the exercise of the Court’s discretion. The Applicant also relied on RWW v EKW [2019] eKLR for the proposition that the purpose of stay is to preserve the subject matter of the dispute so that an appeal, if successful, is not rendered nugatory. 21. On substantial loss, the Applicant submitted that the decree is principally non-monetary and directs, among other things, cancellation of its title documents, re-registration of the suit property in favour of the Plaintiffs, a permanent injunction and, in default, eviction. It was argued that once the title is cancelled and the property re-registered, MALINDI ELCC E017 OF 2021 (RULING) Page 10

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the Applicant’s proprietary interest, which it claims to have held for over thirty-two years, would be extinguished and could not readily be restored by an award of damages. The Applicant further relied on a Government valuation placing the value of the property at KES 165,000,000 and on a police witness statement attributed to Cecilia Kahindi Karisa, which it contended disclosed an intention by beneficiaries of the estate to dispose of the property to a third party. It was submitted that this evidence demonstrated a real risk of alienation rather than a speculative apprehension. 22. The Applicant further argued that the risk of irrecoverability was material because, according to it, the Plaintiffs had not demonstrated their financial means or disclosed assets from which restitution could be made should the intended appeal succeed. Reliance was placed on National Industrial Credit Bank Ltd v Aquinas Francis Wasike & Another [2006] eKLR for the proposition that once an applicant raises a reasonable apprehension that a respondent may be unable to make restitution, the evidential burden shifts to the respondent to disclose the resources available to meet the obligation. 23. The Applicant distinguished the authorities relied upon by the Respondents on the basis that several concerned monetary decrees, whereas the present decree affects title and possession of land. In reliance on Stanley Kangethe Kinyanjui v Tony Ketter & 5 Others [2013] eKLR and James Wangalwa & Another v Agnes Naliaka Cheseto [2012] eKLR, it was submitted that the relevant consideration is whether MALINDI ELCC E017 OF 2021 (RULING) Page 11

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execution would create an irreversible state of affairs which would negate the essential core of the intended appeal. The Applicant maintained that the cancellation and re-registration of the suit property, coupled with the possibility of subsequent dealings with the land, would create precisely such a situation. 24. On the question of security, the Applicant submitted that the decree being non-monetary, a monetary deposit could not itself secure the due performance of orders relating to cancellation and re-registration of title. Nevertheless, it stated that it was willing to comply with such terms as the Court might impose, including furnishing nominal security or an undertaking not to deal with the suit property pending the appeal. Reliance was placed on Arun C. Sharma v Ashana Raikundalia t/a A. Raikundalia & Co. Advocates & 2 Others [2014] eKLR for the proposition that security under Order 42 Rule 6 is intended to guarantee due performance of the decree and not to punish an applicant. The Applicant therefore submitted that preservation of the subject property, together with such nominal security as the Court might direct, would adequately protect the Respondents. 25. On delay, the Applicant submitted that there had been none. It pointed out that judgment was delivered on 3 June 2026, a Notice of Appeal was lodged on 4 June 2026, and the present Motion was filed on 11 June 2026, within the fourteen-day stay granted by the Court at the delivery of judgment and one day after receipt of the written judgment. The Applicant therefore contended that the application had been MALINDI ELCC E017 OF 2021 (RULING) Page 12

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brought promptly and that the allegation that it was a delay tactic or an abuse of process was unsupported. 26. The Applicant also submitted that several matters raised by the Respondents went to the merits of the judgment and therefore fell within the province of the intended appeal rather than the present application. In particular, it urged the Court not to revisit the findings concerning the validity of its title, fraud, illegality, res judicata, limitation, locus standi or the evidentiary basis of the judgment. It contended that the Court’s task on the present application was confined to the requirements of Order 42 Rule 6. 27. The Applicant’s rejoinder placed particular emphasis on the decision of the Court of Appeal in Likizo Limited v Nasib Kashuru Limited & 5 Others, Civil Appeal No. E005 of 2020, [2023] KECA 1314 (KLR). It submitted that the Court of Appeal had, in that case, quashed Gazette Notice No. 6866 of 17 July 2017 concerning the same settlement scheme and had held that the National Land Commission lacked jurisdiction to make the impugned determination after expiry of its statutory mandate. The Applicant contended that the Court of Appeal had further held that the quashing order was in rem. On that basis, it argued that the intended appeal raised substantial questions concerning the foundation of the Plaintiffs’ claim and that execution should be stayed pending determination of those questions by the appellate court. MALINDI ELCC E017 OF 2021 (RULING) Page 13

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28. The Applicant further responded to the Plaintiffs’ reliance on their occupation of the property by maintaining that occupation was contested and that the issue had already been raised as a ground of appeal. It argued that the judgment itself contemplated eviction of the 1st Defendant and therefore, in its view, contradicted the assertion that the Applicant had no presence on the suit property. It maintained that the Court ought to preserve the status quo pending appeal. 29. As regards the authorities cited by the Plaintiffs, the Applicant sought to distinguish Kenya Shell Ltd v Benjamin Karuga Kibiru & Another [1986] KLR 410, Munyiva & Another v Muema [2026] KEELC 4015 (KLR), Cefa Enterprises Ltd v Kimuyu & 3 Others [2026] KEHC 9591 (KLR) and Kedoki v Kariuki [2026] KEELC 4232 (KLR), principally on the basis that those matters involved different factual circumstances, including monetary decrees, substantial delay, or matters capable of monetary restitution. It submitted that the present application concerned land and the alteration of title, which, in its view, raised different considerations as to reversibility. 30. With respect to the 2nd and 3rd Defendants’ submissions, the Applicant reiterated that they had not filed a replying affidavit and contended that certain assertions concerning occupation, development and the absence of substantial loss were factual matters which could not properly be advanced through submissions alone. It further argued that the 2nd and 3rd Defendants were not decree-holders and MALINDI ELCC E017 OF 2021 (RULING) Page 14

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therefore would not themselves lose any fruits of the judgment if execution were stayed. Submissions by the 2nd and 3rd Defendants 31. The 2nd and 3rd Defendants, on the other hand, submitted that the application had to satisfy all three conditions prescribed under Order 42 Rule 6(2), namely substantial loss, absence of unreasonable delay and provision of security. They emphasized that the conditions were conjunctive and that failure to satisfy any one of them was sufficient to defeat the application. 32. On substantial loss, the 2nd and 3rd Defendants submitted that the Applicant had failed to place sufficient evidence before the Court to demonstrate the loss it would suffer if execution proceeded. In particular, they argued that the Applicant had not demonstrated that it occupied or had substantially developed the suit property. Reliance was placed on Sammy v Kibuia (Environment and Land Appeal E016 of 2025) [2026] KEELC 375 (KLR) and Kariuki v Gikandu & 3 Others (Environment and Land Appeal E037 of 2026) [2026] KEELC 2185 (KLR), among other authorities, for the proposition that substantial loss must be demonstrated by evidence and that speculative or pecuniary loss capable of compensation by damages does not, without more, satisfy the threshold. MALINDI ELCC E017 OF 2021 (RULING) Page 15

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33. On delay, the 2nd and 3rd Defendants acknowledged that the application was filed on 11 June 2026 following delivery of judgment on 3 June 2026, but submitted that delay, even for a short period, must be explained. They relied on Raphael Musila Mutiso & 3 Others v Joseph Ndara Nthuka [2019] eKLR. 34. On security, they submitted that the Applicant had not proposed any concrete security and that a general statement of willingness to furnish security in such amount as the Court might direct did not satisfy the requirement under Order 42 Rule 6(2)(b). They argued that the Court ought to be placed in a position to consider the Applicant’s proposal and any counter-proposal before determining whether the requirement had been satisfied. 35. Finally, the 2nd and 3rd Defendants submitted that a successful litigant is ordinarily entitled to enjoy the fruits of judgment. They maintained that the Court had already considered the conflicting evidence concerning occupation and had found in favour of the Plaintiffs. They therefore urged the Court to dismiss the application with costs. Plaintiffs’ Submissions 36. The Plaintiffs similarly submitted that the application had to satisfy all three requirements under Order 42 Rule 6(2). They relied on Halai & Another v Thornton & Turpin (1963) Ltd [1990] eKLR, Century Oil Trading Company Ltd v Kenya Shell Limited [2007] eKLR and Kenya MALINDI ELCC E017 OF 2021 (RULING) Page 16

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Shell Ltd v Benjamin Karuga Kibiru & Another [1986] eKLR in support of the applicable principles. 37. On substantial loss, the Plaintiffs submitted that the Applicant had failed to demonstrate any exceptional or substantial loss arising from execution. They argued that execution of a lawful decree does not, by itself, amount to substantial loss and relied on James Wangalwa & Another v Agnes Naliaka Cheseto [2012] KEHC 1094 (KLR). They further challenged the Applicant’s reliance on the police statement concerning an alleged intended sale of the property, contending that the maker of the statement had no legal authority to transact on behalf of the estate and that the events referred to occurred in 2019, before commencement of the present proceedings. Reliance was placed on section 45 of the Law of Succession Act concerning intermeddling with the property of a deceased person. 38. The Plaintiffs also relied on Munyiva & Another v Muema [2026] KEELC 4015 (KLR), submitting that an assertion that property might be disposed of during the pendency of an appeal, without evidence of actual steps towards such disposal, did not establish substantial loss. They maintained that they were in actual occupation of the suit property and that the issue of possession had been considered and determined in the judgment. They referred to the evidence of the 2 nd Plaintiff and to a letter from the Assistant Chief dated 16 November 2021 as supporting their position. MALINDI ELCC E017 OF 2021 (RULING) Page 17

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39. The Plaintiffs further argued that they, rather than the Applicant, would suffer prejudice if a stay were granted because they would be deprived of the fruits of the judgment and their continued use and occupation of the suit property. They disputed the Applicant’s assertion concerning their financial means and submitted that the ability or inability of the successful litigants to meet a possible restitutionary claim should not, without more, deprive them of the benefit of a judgment. Reliance was placed on Cefa Enterprises Ltd v Kimuyu & 3 Others [2026] KEHC 9591 (KLR). 40. On security, the Plaintiffs submitted that the Applicant had failed to furnish concrete security. They relied on Mwaura Karuga t/a Limit Enterprises v Kenya Bus Services Ltd & 4 Others [2015] eKLR for the proposition that the security must be capable of securing the due performance of the decree that may ultimately become binding upon the Applicant. They further relied on Kedoki v Kariuki [2026] KEELC 4232 (KLR), where the Court held, on the facts of that case, that a general expression of willingness to provide security without a concrete proposal did not satisfy the statutory requirement. 41. The Plaintiffs therefore urged the Court to dismiss the application. In the alternative, should the Court be inclined to grant a stay, they urged that it be limited to a short period to enable the Applicant to prosecute its intended appeal expeditiously. They relied on Shah v Rop & Another MALINDI ELCC E017 OF 2021 (RULING) Page 18

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[2025] KEELC 6400 (KLR] in support of the submission that appropriate timelines could accompany an order for stay. 42. In rejoinder, the Applicant maintained that the Plaintiffs’ submissions did not displace the evidence placed before the Court concerning the nature of the decree, the value of the property, the alleged risk of alienation and the consequences of altering the register before the intended appeal was heard. It reiterated that the application had been filed only eight days after delivery of judgment and within the fourteen-day stay granted by the Court. 43. The Applicant further maintained that its offer to provide security was sufficient to enable the Court to impose appropriate terms under Order 42 Rule 6(2)(b). It proposed, in particular, a deposit into a joint interest-earning account or a bank guarantee in such amount as the Court might determine. It also reiterated its reliance on Likizo Limited v Nasib Kashuru Limited & 5 Others [2023] KECA 1314 (KLR), arguing that the Court of Appeal’s quashing of Gazette Notice No. 6866 raised substantive issues for determination in the intended appeal. 44. Finally, the Applicant contended that the 2 nd and 3rd Defendants were not decree-holders and therefore could not themselves claim deprivation of the fruits of the judgment. It maintained that the competing prejudice lay principally between the Applicant’s claimed proprietary interest in the suit property and the Plaintiffs’ entitlement to proceed with execution. The Applicant consequently urged the Court MALINDI ELCC E017 OF 2021 (RULING) Page 19

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to preserve the subject matter pending appeal by granting the stay on such terms, including security and timelines for prosecution of the intended appeal, as the Court might consider appropriate. Analysis and determination 45. I have considered the Notice of Motion dated 11 th June 2026, the Supporting Affidavit sworn by Wilfers Mwangi Watunu, the Replying Affidavit sworn by Shida Kahindi Karisa, the Grounds of Opposition filed by the 2nd and 3rd Defendants and the 5th Defendant, as well as the Further Affidavit sworn by Wilfers Mwangi Watunu. I have also considered the respective positions advanced by the parties. The issue for determination is whether the 1st Defendant has satisfied the conditions upon which this Court may grant a stay of execution pending appeal. 46. The starting point is Order 42 rule 6(2) of the Civil Procedure Rules. Order 42 rule 6 of the Civil Procedure Rules is the gateway through which all applications for stay of execution pending appeal must pass. It provides: “ Stay in case of appeal [Order 42, rule 6] (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 MALINDI ELCC E017 OF 2021 (RULING) Page 20

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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 subrule(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” 47. Essentially, the rule reflects a deliberate legislative balance between the competing interests of a successful litigant entitled to the fruits of judgment and an unsuccessful party seeking to preserve the subject matter of an appeal from being rendered futile before appellate determination. 48. The three requirements are cumulative. They are not alternative considerations, and satisfaction of one or two of them does not, by itself, entitle an applicant to an order of stay. In James Wangalwa & Another v Agnes Naliaka Cheseto [2012] eKLR, the Court observed that MALINDI ELCC E017 OF 2021 (RULING) Page 21

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the conditions under Order 42 rule 6 share an inextricable bond, such that the absence of one affects the exercise of the Court's discretion to grant stay. 49. The same position was reiterated in M.O.M Amin Transporters Limited & Another v Alexander Ndung’u Mbugua & 2 Others [2017] eKLR, where the Court held that the conditions must be met before the discretion to grant stay can properly be exercised. 50. The Court must, however, approach the application with the nature of the decree in mind. The decree herein is not a simple money decree. The judgment directed, among other things: i. The documents and the title held by the 1 st Defendant were cancelled and/or revoked ii. The Suit Property being Chembe/Kibabamshe/408 was ordered to be registered in the name of the late Mashobo Nyaki Mwachami and the Plaintiffs iii. A permanent injunction was issues restraining the 1 st Defendant from interfering with the estate of the late Mashobno Nyaki Mwachambi; and iv. 51. Cost of the suit was awarded to the Plaintiffs The practical consequences of execution are therefore proprietary and potentially irreversible. The Court must consequently consider whether implementation of the decree before the intended appeal is MALINDI ELCC E017 OF 2021 (RULING) Page 22

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heard would alter the substratum of the dispute in a manner that cannot adequately be undone should the appeal succeed. 52. The first and central consideration is substantial loss. The Court of Appeal in Kenya Shell Limited v Benjamin Karuga Kibiru & Another [1986] KLR 410 emphasised the centrality of substantial loss in an application for stay. The principle is not that every execution necessarily occasions substantial loss. Execution is a lawful process and the mere fact that a decree-holder intends to execute a judgment does not, without more, establish substantial loss. The applicant must demonstrate circumstances in which execution would cause prejudice of such a character that the appeal would be rendered nugatory or its successful outcome substantially compromised. 53. That principle was elaborated in James Wangalwa & Another v Agnes Naliaka Cheseto [2012] eKLR, where the Court held that the applicant must establish factors demonstrating that execution would create a state of affairs that would irreparably affect or negate the essential core of the appeal. 54. In the present case, the 1st Defendant's case is that it has been the registered proprietor of the property since 14 th March 1994 and that the judgment directs cancellation of its title and registration of the property in favour of the Plaintiffs. It is its contention that, unless execution is stayed, the property may be transferred or otherwise dealt with before the intended appeal is heard and determined. The 1st Defendant further MALINDI ELCC E017 OF 2021 (RULING) Page 23

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relies upon the statement attributed to Cecilia Kahindi Karisa in Malindi Criminal Case No. CR 565 of 2025, which it says, evidences steps towards the sale of part of the property. 55. The Plaintiffs, on the other hand, dispute the alleged threat of alienation and contend that the 1 st Defendant has not demonstrated substantial loss. They also maintain that they are entitled to enjoy the fruits of the judgment and that continued suspension of the decree would occasion prejudice to them. The 2nd and 3rd Defendants and the 5th Defendant similarly contend that the 1st Defendant has not established any loss that cannot be adequately compensated. 56. I have considered these rival positions. In my view, the question cannot be determined merely by asking whether the 1 st Defendant is presently in physical occupation of the property. The decree affects the 1st Defendant's registered proprietary interest in the land. Once the title is cancelled and the property is registered in the names of other persons, the legal position of the property will materially change. More importantly, if the property is subsequently transferred or otherwise dealt with in favour of third parties, the appeal may be confronted with further transactions and competing proprietary interests which did not exist at the time the judgment was delivered. 57. This is particularly significant because the 1st Defendant has placed before the Court material which, at this interlocutory stage, raises a genuine apprehension that dealings with the property may occur. I am MALINDI ELCC E017 OF 2021 (RULING) Page 24

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not called upon in this application to make a final finding as to whether any sale has in fact occurred, whether such sale is valid, or whether any person has acquired an interest capable of defeating the judgment. Those are matters for the appropriate forum and, where relevant, the intended appeal. What is material for present purposes is whether there is a sufficiently demonstrated risk that execution of the proprietary aspects of the decree may alter the subject matter of the intended appeal before that appeal is determined. 58. In my view, there is such a risk. The situation is materially different from an ordinary money decree where the successful appellant, if ultimately successful, may ordinarily seek restitution of the amount paid. The present decree concerns land and the cancellation and reregistration of proprietary interests. Although damages may in some circumstances provide a remedy for interference with proprietary rights, the Applicant has demonstrated why, in the circumstances of this case, monetary compensation would not necessarily restore the precise legal and proprietary position which it presently occupies should the intended appeal succeed. 59. I therefore find that the 1st Defendant has established the likelihood of substantial loss within the meaning of Order 42 rule 6(2)(a). 60. However, I am cognizant of the fact that a successful litigant, in this instant Application, the Plaintiff, should not ordinarily be kept from enjoying the benefit of a judgment merely because the unsuccessful MALINDI ELCC E017 OF 2021 (RULING) Page 25

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party has preferred or intends to prefer an appeal. Indeed, the law proceeds on the premise that an appeal does not, of itself, operate as a stay of execution. It is precisely for that reason that Order 42 rule 6 requires an applicant to demonstrate circumstances warranting the exceptional interference with execution. 61. In the circumstances of this case, however, preservation of the property pending determination of the intended appeal does not, in my view, amount to an adjudication in favour of the 1st Defendant. It merely preserves the subject matter so that the appellate process, if pursued, remains capable of producing an effective result. The competing prejudice must therefore be weighed against the nature of the decree and the consequences that may follow if the property is dealt with before the intended appeal is determined. 62. The second requirement is whether the application was made without unreasonable delay. The judgment sought to be stayed was delivered on 3rd June 2026. The Court granted a period of 30 days within which the decree would remain stayed, and the present application was filed on 11th June 2026, only eight days after delivery of the judgment and well within the period of the temporary stay. 63. There is therefore no basis upon which this Court can find that the application was brought after unreasonable delay. This limb of Order 42 rule 6(2) has accordingly been satisfied. MALINDI ELCC E017 OF 2021 (RULING) Page 26

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64. The third requirement concerns security for the due performance of the decree. The 1st Defendant has stated through the Further Affidavit that it is willing to comply with such terms as the Court may impose. The Plaintiffs, on the other hand, have questioned the absence of a concrete proposal for security, particularly having regard to the asserted value of the property of approximately Kshs.165 million. 65. Order 42 rule 6(2)(b) does not prescribe a fixed form or amount of security in every case. The provision deliberately leaves the matter to the Court, which is required to fashion security appropriate to the decree and the circumstances of the particular case. 66. In James Wangalwa & Another v Agnes Naliaka Cheseto [2012] eKLR, the Court recognised that: the requirement of security serves, among other purposes, to demonstrate the applicant's readiness to abide by conditions imposed for the due performance of the decree, while recognizing that it is the Court which determines the security to be furnished. 67. The present decree, however, does not require the 1 st Defendant to pay a quantified monetary sum. It principally concerns proprietary rights in land, cancellation of title, registration and injunctive relief. It would therefore be artificial to require the 1 st Defendant to deposit security equivalent to the alleged market value of the land merely because that value has been stated to be Kshs.165 million. The purpose of security under Order 42 rule 6 is not to impose a penalty for seeking stay, but to protect the successful party against the MALINDI ELCC E017 OF 2021 (RULING) Page 27

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consequences of the stay and secure the due performance of the decree should the appeal ultimately fail. 68. I am satisfied, however, that the requirement of security should not be dispensed with merely because the decree is non-monetary. The stay must be conditional. The 1st Defendant has expressed willingness to abide by such conditions as the Court may impose, and the Court is entitled to require a reasonable security as a condition for the preservation of the status quo pending the intended appeal. Further, the 1st Defendant confirms its willingness to undertake not to deal with title numbers Chembe/Kibabamshe/691 and Chembe/Kibabamshe/692 in any manner adverse to the interests, if any, of the Plaintiffs/Respondents pending the hearing and determination of the intended appeal, 69. In determining the appropriate security, I have considered the nature of the decree, the fact that it is not a money decree, the asserted value of the property, the competing interests of the parties and the need to ensure that the condition imposed does not effectively defeat the right to seek stay. In the circumstances, I consider a monetary security of Kshs.1,000,000 to be appropriate. The amount is not intended to represent the value of the property or the decretal interest. Rather, it constitutes a reasonable condition securing the 1 st Defendant's compliance with the orders of this Court pending the appellate process. MALINDI ELCC E017 OF 2021 (RULING) Page 28

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70. I have also considered the submissions concerning the merits of the judgment, the 1st Defendant's registered ownership of the property since 1994, the proceedings in Malindi ELC No. 86 of 2011, and the challenge concerning the grant issued in Malindi CM Succession Cause No. 62 of 2017. These matters may form part of the intended appeal. They are not, however, matters which this Court should determine afresh in an application for stay. The Court is not sitting as an appellate court over its own judgment. It is sufficient for present purposes that the 1st Defendant has demonstrated an intention to challenge aspects of the judgment and has taken steps towards invoking the appellate jurisdiction. The Court must therefore confine itself to the statutory considerations under Order 42 rule 6. 71. I have equally considered the argument that granting a stay would merely prolong litigation and deprive the Plaintiffs of the fruits of a judgment delivered after a protracted dispute. That consideration weighs against the application. However, the converse is also true: allowing the proprietary aspects of the decree to be fully executed, followed by further dealings with the land, may create a factual and legal situation which could substantially complicate the appellate process. The appropriate course is therefore not to determine which party has a stronger proprietary claim at this interlocutory stage, but to preserve the subject matter while attaching conditions sufficient to protect the interests of the successful litigants. MALINDI ELCC E017 OF 2021 (RULING) Page 29

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72. On the totality of the circumstances, I am satisfied that the 1 st Defendant has met all the cumulative requirements under Order 42 rule 6(2) of the Civil Procedure Rules. It has demonstrated substantial loss that may result from execution of the proprietary aspects of the judgment before the intended appeal is determined; the application was brought without unreasonable delay; and the 1st Defendant has indicated its willingness to comply with conditions that this Court will direct. 73. Consequently, the Notice of Motion dated 11 June 2026 succeeds in the following terms: a. There shall be a stay of execution of the judgment and decree delivered on 3rd June 2026 pending the hearing and determination of the intended appeal to the Court of Appeal. b. The stay granted under paragraph (a) above is conditional upon the 1st Defendant depositing the sum of Kshs.1,000,000 in court as security for the due performance of the decree within thirty (30) days from the date of this Ruling. c. In default of compliance with paragraph (b) above, the order of stay shall lapse automatically without the necessity of any further order of the Court. MALINDI ELCC E017 OF 2021 (RULING) Page 30

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d. The stay shall operate to preserve the suit property and the subject matter of the intended appeal and there shall be no further transfer, alienation, charge, subdivision or other dealing with the suit property inconsistent with the preservation of the status quo pending the determination of the intended appeal. e. The costs of the Notice of Motion dated 11 June 2026 shall abide the outcome of the intended appeal. It is so ordered. Dated, signed and delivered, virtually at Malindi this 24 th day of September 2026. …………….………….. J. M. ONYANGO JUDGE In the presence of: 1. Ms Kihungu for Mr. Sheth for the 1st Defendant/Applicant 2. Mr. Ndegwa for the Plaintiffs/Respondents Court Assistant: Happy MALINDI ELCC E017 OF 2021 (RULING) Page 31

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