1.Before this court for determination is a Notice of Motion dated 26th October 2022 brought under Section 1A, 1B, and 3A of the Civil Procedure Act, and Order 42 Rule 6 of the Civil Procedure Rules. The orders sought are as follows:
2.The application is premised on the grounds stated on the face of it and supported by the affidavit sworn by Swaleh Omar Baghrab. The Applicant deposed that following the judgment delivered by the Lower Court on 21st September 2022, he preferred the present appeal. That, if a stay is not granted the appeal, will be rendered nugatory since the said judgment ordered the demolition of the structures on the suit property. The Applicant deposed that he would subsequently suffer substantial loss. He expressed willingness to provide any security or observe any conditions that may be imposed.
3.The Respondents have opposed the application. They filed grounds of opposition dated 21st November 2022. They aver that the application is an afterthought and incompetent for being filed inordinately late with no reasonable explanation for the delay. That on 21st September 2022, the Applicant was granted 14 days stay of execution to make a formal application for stay but disregarded those directions. The Respondent urge the court to dismiss the application.
4.The application was canvassed by way of written submissions.
5.Counsel for the Applicant submitted that the duty of this court in such an application was to determine whether the Applicant has met the threshold set under Order 42 Rule 6 of the Civil Procedure Rules. That is, whether the application has been made without unreasonable delay; that the Applicants have demonstrated substantial loss will be occasioned if no stay is granted; and such security for the due performance of the decree has been provided.
6.On the first condition, counsel submits that a period of 36 days after judgment was delivered was reasonable. On the second issue, counsel relied on the case of James Wangalwa and another v Agnes Naliaka Cheseto  eKLR to define substantial loss. Counsel submits that the Applicant would suffer substantial loss if the structures were to be demolished by the Respondent before the appeal is heard. Moreover, the Respondent failed to demonstrate their ability to pay the costs of the structures in the event that the appeal succeeds. This was the Respondent’s burden to discharge. Counsel relied on the case of National Credit Bank Limited v Aquinas Francis Wasike and Anor. UR Nairobi Civil Application No. 238 of 2005 to buttress this point.
7.Counsel for the Respondents similarly citing the case of James Wangalwa [supra] submits that the Applicant did not prove their inability to refund the costs in the event the impugned judgment is executed. He argued that there must be a just cause for depriving the Respondent of their right to enjoy the fruits of judgment as it was held in Mohamed Salim t/a Choice Butchery v Nasserpuria Memon Jamat  eKLR.
8.Having carefully considered the application, grounds of opposition, submissions, and authorities cited by both sides, I find that the sole issue for determination is whether the Applicant has met the conditions for granting an order for stay of execution pending appeal.
9.Order 42 Rule 6 of the Civil Procedure Rules provides: -
10.In Butt v Rent Restriction Tribunal  eKLR, the Court of Appeal stated what ought to be considered in determining whether or not to grant stay of execution pending appeal. The court explained that the power of a court to grant or refuse an application for stay of execution is discretionary, and the discretion should be exercised in such a way so as not to prevent an appeal; That if there is no other overwhelming hindrance, stay must be granted so that an appeal may not be rendered nugatory should the appeal court reverse the judgment; That a judge should not refuse a stay if there are good grounds for granting it merely because, in his opinion, a better remedy may become available to the Applicant at the end of the proceedings; and finally, the court will consider the special circumstances of the case and its unique requirements.
11.It is also well established that the purpose of a stay pending appeal is to preserve the substratum of the case, especially in land matters where the character of the suit property may be changed while the appeal is pending. In RWW v EKW  eKLR the Court held as follows:
12.The position on the preservation of the substratum of the subject matter has also been reiterated, by the Court of Appeal in the case of Mwadzaya Wachanda Clan Welfare Registered Trustees & 58 others v Petro Oil Kenya Ltd & 6 others (Civil Application E055 of 2021)  KECA 402 (KLR), as follows:
13.I have perused the impugned judgment in CMCC Land Case No. 11 of 2019, what I establish is that the Respondents herein commenced proceedings against the Appellant for inter alia vacant possession of the portion of land known as Plot No. 4314 Malindi [the suit property], and demolition of the Appellant’s structures thereon within seven days of the court’s order. In the end, the lower court issued orders inter alia, a mandatory injunction against the Appellant to demolish the said structures. It is this demolition that is the subject of the present appeal.
14.In the circumstances, execution, in this case, would mean the demolition of the structures on the suit premises, which would in my view change the character of the property. I have weighed the rights of the Respondents vis-a-vis those of the Applicant to appeal, I find that no prejudice will be occasioned to the Respondent if the substratum of the suit is preserved.
15.In the foregoing, I hereby direct that the status quo on the ground be maintained pending the hearing and determination of the appeal. Moreover, the appeal in any event be heard expeditiously. Costs in the intended appeal.