Rufas Kihara Njoroge & Moureen Mugure Kihara (Suing as the Legal Representatives of Hellen Wanjiku Gathungu) v Naomi Wairimu Kamau, Jufras Investment Limited, Land Registrar Ruiru & The Hon. Attorney General

Moureen Mugure Kihara (Being sued as the Legal Representatives of Estate of Hellen Wanjiku Gathungu) & 3 others on 16th May, 2025; (iii) THAT this Honorable court be pleased to stay the execution of the Judgment and/or decree issued by the Chief Magistrate Court at Ruiru Hon. Christine Asuna Okello, in MCELC E075/2023 Naomi Wairimu Kamau Vs. Rufas Kihara Njoroge & Moureen Mugure Kihara (Being sued as the Legal Representatives of Estate of Hellen Wanjiku Gathungu) & 3 others on 16th May, 2025 pending the hearing and determination of this this Appeal; (iv) THAT the Court do make such order or further orders as it may deem fair and just; and (v) THAT costs of this Application be in cause. 2. The Applicant, in seeking the orders therein, contends that the Trial Court erred in its finding granting the following orders: i. A permanent injunction is hereby issued restraining the Appellant from possessing, occupying, trespassing, constructing, encroaching or in any other way interfering with the suit property; ii. The Appellant is ordered to remove any structure erected or constructed on the suit property and restore the same in its previous state within 60 days of the date of the judgment; and iii. The Appellant’s counter claim is dismissed with costs to the Plaintiff. THIKA ELCLA E066 OF 2025 (RULING) Page 2

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3. The grounds in support of the Application, are set out on the face of the Application and the Supporting Affidavit sworn by Rufas Kihara Njoroge. 4. The Applicant contends that in the said Judgment of the Subordinate Court, the Learned Magistrate found that: ‘’none of the documents produced by the Appellants show that the suit parcel belongs to them’’ whereas in the same Judgment the Learned Magistrate acknowledges that at trial, the Appellants produced the following documents in their favor: i. A copy of the agreement dated 7th March, 2015 between Hellen Wanjiku Gathungu and Jufra Investments Limited, the 2 nd Respondent herein; ii. A copy of Receipt dated 7Th March, 2015 in favor of the deceased Hellen Wanjiku Gathungu; iii. A copy of Green Card Application dated 21st February, 2023; iv. Certificate of Confirmation of Grant dated 29th July, 2020; v. Certificate of ownership no. 279 and 280 in the name of the deceased Hellen Wanjiku Gathungu; and vi. A copy of the mutation form. 5. The Applicants aver that the credibility of the aforementioned documents was not challenged at trial and thus it is evident that the Learned Magistrate erred in law and in fact by failing to take into account germane considerations relevant to the circumstances set out in the pleadings herein. THIKA ELCLA E066 OF 2025 (RULING) Page 3

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6. The Application was opposed through a Replying Affidavit sworn by Naomi Wairimu Kamau on 13th September 2025. The 1st Respondent in their reply, contend that the suit filed in the subordinate court concerned eviction and not the title to property. They contend that the issues raised in the Application are now overtaken by events. 7. Further, the 1st Respondent contend that the Appellant never availed any eye witness to confirm authenticity of the certificates and receipts that they produced therefore evidence tendered was hearsay. 8. As to the aversions that the Appellant are in possession of the Suit Property, the Respondents contend that the same is not true as now they are in actual possession of the same and not the Appellant as averred in their Application. 9. As a consequence of the foregoing, the Respondent contend that the Appellant should raise the issue of refund for money with the 2 nd Respondent should he have any claim against them and that the Court should not interfere with the findings of the Subordinate Court. PARTIES SUBMISSIONS Appellant’s submissions 10. The Applicant’s aver that as it stands, there is imminent risk that unless the Application is heard and determined as a matter of urgency and the orders sought issued ex parte in the first instance. THIKA ELCLA E066 OF 2025 (RULING) Page 4

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11. They aver that the 1st Respondent is likely to cause the eviction of the Appellants herein, the Appellants herein are likely to suffer substantial loss as Kenya Shillings One Million (Kshs. 1, 000, 000) which was already paid to the 2nd Respondent herein and the same may never be recovered, the 1st Respondent is likely to dispose the suit property by way of selling and or causing to be transferred to another party and or auctioned thereby rendering otiose the final orders that shall be issued by this Honorable Court. 12. As regards to whether the Applicant will suffer substantial loss should this Court not allow the Application herein, the Applicant submits that they have been enjoying quite possession of the suit property since 2015 when the deceased Hellen Wanjiku Gathungu purchased it 13. The Applicant avers that they have developed the suit property and erected chattels and thus suffer serious financial loss if the judgment of the learned magistrate is to be executed and they are to be forcefully evicted from the suit property. Further, they contend that the 1 st Respondent is likely to cause the eviction of the Appellants and that further, they are likely to suffer substantial loss as Kenya Shillings One Million (Kshs. 1, 000, 000) was already paid to the 2 nd Respondent a decade ago on or about March 2015 and the same may never be recovered. THIKA ELCLA E066 OF 2025 (RULING) Page 5

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14. As regards to unreasonable Delay, the Applicants contend that the instant application was filed on 6 th September, 2025 after the Judgment had been delivered on 16th May, 2025. They contend that a delay of 80 days is not inordinate. 15. In their submissions for security for Costs the Applicant avers they are ready to abide by the conditions, if any, that may be set by this Honorable Court for the deposit of security for costs provided that such costs are reasonable as the Appellant is not a man of means. Respondent’s Submissions 16. The 1st Respondent opposed the Application and submitted that the Appellants had failed to satisfy the requirements for stay of execution under Order 42 Rule 6 of the Civil Procedure Rules. 17. The 1st Respondent contended that the Appellant had not demonstrated any substantial loss, as they were neither in occupation of nor had they undertaken developments on the suit property. 18. It was further submitted that the 1st Respondent was the registered proprietor of the suit property and that any claim by the Appellants arising from the alleged transaction lay, if at all, against the 2 nd Respondent and could be adequately remedied by damages or refund. 19. The 1st Respondent further submitted that the Application had been overtaken by events since the 1 st Respondent was already in possession of the suit property pursuant to the orders of the trial court. THIKA ELCLA E066 OF 2025 (RULING) Page 6

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It was also contended that the Application was filed nearly four months after delivery of judgment, without any satisfactory explanation for the delay. 20. On the prospects of the appeal, the Respondent argued that the Appellants had not demonstrated an arguable appeal. It was submitted that the trial court had properly evaluated the evidence and correctly found that the Appellants’ documents did not confer ownership, while the 1st Respondent’s registered title remained valid and indefeasible. 21. The 1st Respondent maintained that the documents relied upon by the Appellants had not been properly authenticated and that no sufficient evidence had been adduced to establish fraud, illegality or any irregularity in the acquisition of the 1st Respondent’s title. 22. The 1st Respondent also challenged the Appellants’ reliance on the alleged transaction involving the previous owner, Wanjiru Macharia, noting that she had not been enjoined in the proceedings. It was argued that the Appellants could not properly impugn the 1 st Respondent’s title on the basis of a transaction involving a person who was not a party to the proceedings and had not been subjected to scrutiny or cross-examination. 23. On the balance of convenience, the 1st Respondent submitted that it favoured the 1st Respondent as the registered proprietor and successful litigant who was entitled to enjoy the fruits of the judgment. Granting a stay, it was argued, would unjustly permit persons without a legally THIKA ELCLA E066 OF 2025 (RULING) Page 7

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recognised interest in the property to continue occupying or dealing with the property. 24. Finally, the 1st Respondent submitted that the Appellants had neither offered nor provided security for the due performance of the decree as required under Order 42 Rule 6(2)(b). The Respondent therefore urged the Court to find that the statutory threshold for stay had not been met and to dismiss the Notice of Motion dated 6 September 2025 with costs. Analysis and determination 25. It is trite that for an Applicant to succeed in an Application of this nature, one must establish three conditions namely; establishment of substantial loss upon timely filing of the Application and the furnishing of security for the due performance of the decree. 26. The principles governing an application for stay of execution pending appeal are well settled. In Butt v Rent Restriction Tribunal (1982) KLR 417, the Court of Appeal affirmed that the power to grant or refuse an order of stay is discretionary and that such discretion ought to be exercised in a manner that does not unnecessarily prevent or render an appeal nugatory. The Court further observed that, in exercising that discretion, the Court is required to consider the special circumstances and unique requirements of each case. THIKA ELCLA E066 OF 2025 (RULING) Page 8

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27. The statutory framework is set out in Order 42 Rule 6 of the Civil Procedure Rules. Rule 6(1) provides that an appeal does not, by itself, operate as a stay of execution of the decree or order appealed from. The Court appealed from, or the appellate Court upon application, may however order a stay for sufficient cause. Rule 6(2) sets out the conditions that must be satisfied before such an order may issue, namely that: (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.” 28. The purpose of a stay of execution pending appeal is to preserve the subject matter of the dispute and safeguard the appellant's right of appeal so that, should the appeal ultimately succeed, it is not rendered nugatory. At the same time, the Court must have regard to the successful litigant's right to enjoy the fruits of the judgment. The discretion must therefore be exercised judiciously, bearing in mind the circumstances of the particular case and the need to avoid prejudice that cannot adequately be compensated by an award of costs. 29. The central question in the present Application is therefore whether the Appellants have satisfied the requirements of Order 42 Rule 6(2). THIKA ELCLA E066 OF 2025 (RULING) Page 9

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The first consideration is whether they have demonstrated that they are likely to suffer substantial loss if stay is not granted. 30. In James Wangalwa & Another v Agnes Naliaka Cheseto, Misc. Application No. 42 of 2011 [2012] eKLR, Gikonyo J observed that the mere fact that execution has been commenced, or is likely to be commenced, does not of itself amount to substantial loss. The Applicant must demonstrate circumstances showing that execution will create a state of affairs that would irreparably affect or negate the essential substance of the Applicant's position in the event that the appeal succeeds. The learned Judge further recognised that substantial loss is the cornerstone of an application for stay because it is the loss that must be prevented by preservation of the status quo so as to ensure that the appeal is not rendered nugatory. 31. Similarly, in Daniel Chebutul Rotich & 2 Others v Emirates Airlines, Civil Case No. 368 of 2001, Musinga J (as he then was) underscored that substantial loss is a relative concept which must be assessed in light of the circumstances and consequences that the applicant is likely to suffer if execution proceeds. 32. In the present case, the decree appealed from did not impose a monetary obligation upon the Appellants. Following the hearing of the suit, the trial Court issued a permanent injunction restraining the Appellants from possessing, occupying, trespassing upon, constructing on, encroaching upon or otherwise interfering with the suit property. THIKA ELCLA E066 OF 2025 (RULING) Page 10

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The Appellants were further directed to remove any structures erected on the property and restore the property within sixty (60) days. Their counterclaim was dismissed with costs. 33. The Appellants' case is that unless execution is stayed, they stand to suffer substantial loss because they have occupied and developed the suit property since 2015 and have expended approximately Kshs. 1,000,000/= in relation to the transaction pursuant to which they claim an interest in the property. They further contend that their intended appeal challenges the trial Court's treatment of the documents relied upon in support of their claim and that execution of the decree would result in their eviction and expose them to financial loss. 34. The 1st Respondent, on the other hand, disputes that the Appellants have occupied or developed the suit property and maintains that she is the registered proprietor thereof. It is the 1st Respondent's position that the Appellants' alleged loss, if any, is compensable by way of damages or recovery of the monies allegedly paid to the 2 nd Respondent and that the Appellants have not demonstrated any loss that would render the intended appeal nugatory. 35. I have considered these rival positions. The mere prospect of execution of a lawful decree, including the enforcement of an order for possession or removal of structures, does not in itself establish substantial loss. The Appellants were required to place before the Court sufficient material demonstrating the particular prejudice that would THIKA ELCLA E066 OF 2025 (RULING) Page 11

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arise from execution and explaining why such prejudice could not adequately be addressed should the appeal ultimately succeed. 36. It is also material that the 1 st Respondent maintains that she is already in possession of the suit property pursuant to the judgment of the trial Court. The 1st Respondent consequently contends that the Application has, to that extent, been overtaken by events and that the continued grant of stay would have the effect of prolonging a state of affairs in which the registered proprietor is unable to fully enjoy the fruits of the judgment. 37. The second consideration is whether the Application was made without unreasonable delay. The judgment appealed from was delivered on 16th May 2025, while the present Application was filed on 6 September 2025. The period between the delivery of judgment and the filing of the Application is therefore approximately four months. 38. The final consideration concerns security for the due performance of the decree. Order 42 Rule 6(2)(b) expressly requires an applicant seeking stay to provide such security as the Court may order for the due performance of the decree or order as may ultimately be binding upon the applicant. In the present case, the Appellants have not offered any security for the due performance of the decree. The 1 st Respondent has expressly raised this omission in opposition to the Application. THIKA ELCLA E066 OF 2025 (RULING) Page 12

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39. These requirements are conjunctive in the sense that an Applicant must satisfy the Court on the statutory conditions before the discretionary jurisdiction to grant stay can properly be exercised. The Court must consequently consider the Application against the nature of the decree, the prejudice alleged, the conduct of the parties, and the need to balance the Appellants' right of appeal with the 1st Respondent's entitlement to enjoy the judgment in her favour. 40. Having considered the Application, the material placed before the Court and the submissions made by the parties, I am not persuaded that the Applicant has established sufficient cause to warrant the exercise of this Court’s discretion in its favour. 41. The Applicant’s principal complaint is that the learned Trial Magistrate failed to properly appreciate and evaluate the documentary evidence placed before the Court and consequently arrived at an erroneous finding regarding the ownership and/or interest in the suit property. Those complaints go to the merits of the decision and are, properly speaking, matters for determination in the appeal. At this interlocutory stage, this Court is not sitting as an appellate court to reevaluate the evidence or determine whether the Trial Court reached the correct conclusion. 42. I have also considered the nature of the decree sought to be stayed. The Trial Court issued a permanent injunction restraining the Applicant from possessing, occupying, THIKA ELCLA E066 OF 2025 (RULING) trespassing upon, constructing Page 13 on,

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encroaching upon or otherwise interfering with the suit property, and directed the removal of structures and restoration of the property within sixty (60) days. 43. The Applicant has expressed apprehension that execution of the decree will occasion financial loss and adversely affect the appeal. However, the mere existence of such consequences does not, without more, establish substantial loss within the meaning of Order 42 Rule 6 of the Civil Procedure Rules. 44. More importantly, the Applicant has not demonstrated that the execution of the decree would create an irreversible state of affairs incapable of being remedied should the appeal ultimately succeed. 45. The allegations concerning the monies allegedly paid towards the property, the developments undertaken thereon and the Applicant’s asserted interest in the suit property are matters which remain contested and whose determination properly belongs to the appellate process. The Court cannot, under the guise of determining an application for stay, make findings that would effectively determine the appeal in advance. 46. I have further considered the period between the delivery of the impugned judgment on 16 May 2025 and the filing of the present Application on 6 September 2025. Although the Application was not filed immediately after the judgment, I am prepared, for purposes of THIKA ELCLA E066 OF 2025 (RULING) Page 14

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the present determination, to accept that the delay has not, in the circumstances disclosed, been shown to be unreasonable. 47. As regards security for the due performance of the decree, Order 42 Rule 6 requires the Court, where a stay is granted, to consider appropriate security. In the present case, however, the decree is principally injunctive and restorative in nature and does not impose a specific monetary obligation upon the Applicant. That consideration does not, by itself, dispense with the statutory requirement for substantial loss and sufficient cause, which the Applicant has failed to establish. 48. Ultimately, the right of appeal does not, by itself, confer a right to stay execution. The Court is required to balance the Applicant’s right to pursue an appeal against the successful party’s equally recognised right to enjoy the fruits of its judgment. On the material before me, I find that the Applicant has not satisfied the statutory threshold for the grant of an order of stay of execution. 49. I find no basis, at this stage, to fault the decision of the learned Trial Magistrate in the manner urged by the Applicant. The grievances raised against the judgment are matters for consideration in the substantive appeal and cannot be resolved in the present interlocutory proceedings. 50. Consequently, the Notice of Motion dated 6 September 2025 is hereby dismissed with costs. THIKA ELCLA E066 OF 2025 (RULING) Page 15

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It is so ordered. Dated, Signed and Delivered, virtually at Malindi this 23 rd day of September 2026 …………….………….. J. M. ONYANGO JUDGE In the presence of: Mrs Otieno for the Appellant/Applicant No appearance for the Respondent Court Assistant: Happy THIKA ELCLA E066 OF 2025 (RULING) Page 16

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