1.Zerubbabel Apartments Ltd (hereinafter referred to as the applicants) have come to this court seeking orders that pending the hearing and determination of the intended appeal there be stay of execution of the ruling and orders issued by this Honourable court. They further pray for costs of the application. The application is grounded on the facts that the appeal has very high chances of success and that the appellant is willing to abide by reasonable orders for security of costs. The application has been brought without unreasonable delay and utmost good faith. That unless the orders sought are granted the intended appeal will be rendered nugatory. The salient points in the supporting affidavit of Gad Omondi Opiyo are that the applicants have preferred an appeal and that the injunctive orders have stalled the project and have stopped construction on the subject property. The respondent will not suffer any prejudice if the orders are granted. The applicants claims that he would suffer irreparable loss if the orders are not granted.Respondents Case
2.The respondents in reply state that they filed a petition concurrent with an application both dated 1st November 2021 in which they had sought temporary orders of injunction pending the hearing of and determination of the petition stopping the Applicant herein from continuing with and/or causing any further developments on Kisumu/Municipality Block 12/137.
3.On 24th February 2022, the Honourable Court delivered its ruling on their application dated 1st November 2021 wherein the Honourable court upheld their application and granted injunctive orders restraining the 1st Respondent from causing any further developments on Kisumu/municipality Block 12/137 pending the hearing and determination of the petition.
4.That the applicant continued with the development even after the court delivered its ruling which caused the respondents to instruct their advocates to file an application for contempt of court and when the Applicant got wind of the same, it approached their advocates for an out of court settlement and when the declined such request, the Applicant opted to stop the construction and file the instant application and in the circumstances, the applicant is unworthy of any discretion of this Honourable court.
5.According to the respondent, The applicant in the instant petition have failed to meet the threshold for the grant of the orders sought in their application as this application was brought 30 days after the ruling and order of this court granting an injunction with the result that the Respondents were required to stop any further developments on the property rendering the instant application an afterthought. That the orders issued by this Honourable court stopping further developments on the stopping further developments on the suit property and stopping any further occupation of the premises, are negative orders incapable of being executed against and as such no stay of execution can issue in respect to the said orders.
6.That the applicant has not demonstrated that it would suffer substantial loss if the stay is not granted in terms of Order 42, rule 6 (2) (a) of Civil Procedure Rules 2010, and the issues now raised in paragraphs 21, 22, 23 and 24 were never raised in the Replying affidavit sworn by Gad Opiyo and filed in court on 13.01.2022, and hence it is obvious that these are new issues that the Respondents were all along, aware of, but failed to bring to the attention of the court and now claim that they form a basis for the grant of the orders of stay of execution, pending appeal, when in reality, they seek to have this court review the said order to the detriment of the Petitioners.
7.That the intended appeal shall not be determined on new facts that were not raised in the proceedings before this Honourable court and as such the intended appeal has very slim chances of success.
8.That the petitioners are the ones who will suffer substantial loss since the effect of allowing the said application, is allowing the Respondents to proceed with the project, in open violation of our constitutionally guaranteed right to a clean and healthy environment, which breach cannot be adequately compensated by any amount of damages, and hence they would be highly prejudiced as correctly found in this court’s ruling of 24.02.2022 to be incapable of being compensated by an award of damages hence the proposal by the Applicant that it is willing to abide by an order for security for costs cannot suffice in the circumstances.
9.That when the Respondents elected to seek financing for this project, they knew that they were proceeding in open violation of the requirements as contained in the Environmental Management and Co-ordination Act requiring them to involve persons who are likely to be affected by their project and in fact, the injunctive orders issued by this court help them not to invest more money in a project that was not set up in compliance with the law.
10.That the Constitution under Article 70 calls for the court to protect any threatened violation of the rights to a clean and healthy environment which this Honourable court duly did by granting injunctive orders against a project that is likely to be in violation of the said constitutional provision and as such allowing the project to go on shall be in contrary to the spirit and provision of Article 70 of the Constitution. That the applicant has not demonstrated that failure to grant the stay Order would render the appeal nugatory.
11.The respondents state that allowing the Application and consequently granting the Applicant liberty to continue with the development shall in fact render the intended appeal nugatory as there shall be no need for the Applicant to prosecute the appeal once they are granted liberty to continue with the development as the only prayer the Applicant seeks from the Court of Appeal is for the ruling of this Honourable court to be set aside so that they can continue with the development which objective they shall have achieved in the unlikely event this application is allowed. In the circumstances, allowing the instant application and granting orders of stay of execution shall equally be of the effect of setting aside the ruling of the court delivered on 24th February 2022 and the Applicant shall be at liberty to continue with the development on Kisumu/Municipality Block 12/137.
12.According to the petitioners, the instant application is merely disguised as an application for stay of execution but is in its real sense a deliberate attempt by the Applicant to present new facts intended to circumvent the lacuna in their response to the Application for temporary injunction to change the view of the court and further use this Honourable court as a conduit of realizing the objective and prayers of their intended appeal without affording the Petitioners a chance to be heard in the appeal.
13.That in the circumstances, by this Honourable court allowing the instant application, it shall have sat as an appellate court and set aside its own decision. The applicant has not demonstrated that failure to grant the say order would render the appeal nugatory.
14.That what is at stake is a competition between the Applicant’s financial conveniences and the Respondents’ right to a clean and healthy environment and going by the supremacy of the Constitution, this Honourable court should uphold the Respondent’s right to a clean and healthy environment and public participation as provided for under Articles 10 (2) (a), (b), (c), 69, and 70 which are grater rights as compared to the Applicant’s financial conveniences and the right to Appeal under Section 66 of the Civil Procedure Act as read with Order 42 rule 6 of the Civil Procedure Rules.Determination and Analysis
15.I have carefully considered the application, the supporting affidavit and submissions on record. The applicable provisions of law are Order 42 Rule 6 that provides as follows:-
16.Order 42 rule 6(1) and (2) of the Civil Procedure Rules provides as follows:(1)No appeal or second appeal shall operate as a stay of execution or proceeding 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 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.”
17.The application was brought to Court 30 days after the Judgment and 28 days after the lodging of the notice of appeal. I do consider 30 days delay not inordinate as the same was timeously in the circumstances of this case. This being a petition where such drastic orders were sought the application for stay of execution pending appeal was filed timeously.
18.On whether the Judgment debtor is likely to suffer substantial loss, I do find that the 1st respondent/applicant has demonstrated that the respondents will suffer substantial loss in terms of the contract it had with the Gad Works Ltd for the development of the multi billon storey building on the suit parcels of land and the same cannot be reversed if she succeeds on appeal. Moreover, on the same issue of substantial loss, this court is alive to the fact that there is need to balance between the petitioner’s interest to a clean and healthy environment and the respondent’s proprietary interest.
19.Suleiman vs. Amboseli Resort Limited  2 KLR 589. This was the position of Warsame, J (as he then was) in Samvir Trustee Limited vs. Guardian Bank Limited Nairobi (Milimani) HCCC 795 of 1997 where he expressed himself as hereunder:
20.On the first principle, Platt, Ag.JA (as he then was) in Kenya Shell Limited vs. Kibiru  KLR 410, at page 416 expressed himself as follows:On the part of Gachuhi, Ag.JA (as he then was) at 417 held:
21.On security, it is true that Order 42 rule 6 of the Civil Procedure Rules, requires the applicant to offer security for the due performance of the decree and the Court is entitled to take into account the fact that no such security has been offered in deciding an application thereunder. The position taken by the court in Mwaura Karuga t/a Limit Enterprises vs. Kenya Bus Services Ltd & 4 Others  eKLR, is relevant where it was held that:
22.The court finds guidance in the holding in Gianfranco Manenthi & another vs. Africa Merchant Assurance Company Ltd  eKLR, where the court observed:
23.The law is that where the applicant intends to exercise its undoubted right of appeal, and in the event it were eventually to succeed it should not be faced with a situation in which it would find itself unable to recover in damages. Likewise, the respondent who has a decree in his favour should not, if the applicant were eventually to be unsuccessful in its intended appeal, find it difficult or impossible to realize the decree.
24.This is the cornerstone of the requirement for security. The issue of adequacy of security was dealt with by the Court of Appeal in Nduhiu Gitahi vs. Warugongo  KLR 621; 1 KAR 100; [1988-92] 2 KAR 100 where the Court of Appeal expressed itself as follows:
25.I do find that the applicants are willing to furnish security for costs. The upshot of the above is that the application is allowed in terms that there be a conditional stay of execution of the orders in the ruling issued on the 24th day of February 2022, thus the applicant will be allowed to complete the construction of the building to pre-empt a financial loss, however the applicants/ respondents their agents or purchasers shall not be allowed to enter the premises until the appeal is heard and determined. The applicant to deposit security for costs whose value shall not be less than One Million Kenya shillings (1,000,000) or to pay in court a similar amount in cash. Costs of the application to be in the appeal.