1.This ruling is in respect of the appellant’s Notice of Motion dated May 10, 2023, an application through which the appellant seeks stay of further proceedings in Butali MCELC No E024 of 2021 and stay of execution of the orders made in the said case on May 2, 2023 and November 24, 2022 pending hearing and determination of this appeal. The application is supported by an affidavit sworn by the appellant and is opposed through a replying affidavit sworn by the respondent.
2.Based on the material on record, the background of the dispute is that the respondent, who is the appellant’s uncle, filed the suit in the Subordinate Court through plaint dated June 2, 2021, against the appellant. He averred in the plaint that he transferred the parcel of land known as S/Kabras/Shamberere/4307 (the suit property) to the appellant in the year 2020 as a gift for the purpose of safeguarding graves of family members as well as the respondent’s late parents’ house. He further averred that upon becoming the registered proprietor of the suit property, the appellant started destroying the graves and allowed members of a church to construct a church on the graves. He sought judgment against the appellant for a permanent injunction to restrain him from selling or interfering with the suit property and an order that the suit property be deregistered from the appellant’s name so that it reverts to the respondent.
3.Alongside the plaint, the respondent filed an application dated June 2, 2021 seeking an injunction to restrain the appellant “from illegal use and cultivation” of the suit property pending inter parte hearing. The application was placed before Hon Z J Nyakundi SPM who issued the injunction on June 2, 2021 and scheduled the application for inter parte hearing on June 10, 2021. Subsequently, the respondent filed an application dated July 18, 2022, seeking punishment of the appellant by imprisonment for a period not exceeding six months, on claims that he disobeyed the injunction order of June 2, 2021. The application was heard and determined by Hon Z J Nyakundi (SPM) through a ruling delivered on November 24, 2022. The learned magistrate stated in the ruling as follows:
4.Dissatisfied with that outcome, the appellant filed Notice of Motion dated December 15, 2022, seeking stay of execution of the orders of November 24, 2022 as well as review, variation or setting aside of orders of June 2, 2021 and those of November 24, 2022. The application dated December 15, 2022 was heard and determined by Hon R S Kipngeno (PM) through a ruling delivered on May 2, 2023. The learned magistrate found no merit in the application and therefore dismissed it with costs. He stated as follows in the ruling:
5.Aggrieved by the ruling delivered on May 2, 2023, the appellant filed this appeal, contemporaneously with Notice of Motion dated May 10, 2023. When the application came up before me on May 25, 2023 for inter parte hearing, Ms Aligula, counsel for the applicant informed the court that the applicant has since been committed to civil jail on account of contempt of court. The respondent confirmed it and showed the court a committal order for a term of three months.
6.Ms Aligula argued that the appeal will be rendered nugatory if stay is not granted and that no prejudice will be occasioned to the respondent if the orders are granted. She relied on Global Tours & Travels Limited; Nairobi HC Winding up Cause No 43 of 2000 as cited in Watu Credit v Geoffrey Mokaya Aboki & Karen Chepkurui  eKLR. In response, the respondent relied wholly on his replying affidavit and urged the court to dismiss the application. The replying affidavit is essentially a narration of the steps and orders in matter so far.
7.I have considered the application, the affidavits, and the submissions. In doing so, I bear in mind that the appeal is yet to be determined. Even the application dated June 2, 2021 is yet to be heard inter parte by the Subordinate Court. Equally, the suit before the Subordinate Court is yet to be heard and determined on its merits. I will therefore steer clear of any observation or conclusion that may affect the outcome of all the foregoing. Considering that the record of appeal has so far not been filed, I found it necessary to reproduce large parts of the various rulings purely for purposes of shedding light on how the parties got where they are now.
8.The applicant seeks stay of further proceedings in Butali MCELC No E024 of 2021 and stay of execution of the orders made in the said case on May 2, 2023 and November 24, 2022 pending hearing and determination of this appeal. I will first deal with the aspect of stay of proceedings.
9.Stay of proceedings is a serious matter, since it brings to a halt, even if temporarily, the smooth flow of the process of dispensation of justice. Needless to state, a delay of even a day is a cost and an inconvenience to litigants. Consequently, it is a relief that must be granted sparingly and only in exceptional circumstances. Even more circumspection is required before stay of proceedings pending determination of an appeal is granted since delay in the appeal will only exacerbate the situation in so far as early determination of the matter appealed from is concerned.
10.Consequently, the decision on whether to grant stay of proceedings, though discretionary, must be exercised judiciously and on sound principles. Ringera, J (as he then was) discussed the principles in the case of Re Global Tours & Travel Ltd HCWC No 43 of 2000 Ringera, J as follows:
11.Applying the above principles to the present situation, an order of stay of proceedings will stall the entire suit before the Subordinate Court yet the dispute in this appeal revolves around an interlocutory order. Such a course of action would not be in the interest of justice. I am thus not persuaded to grant stay of proceedings.
12.The last issue that I need to resolve is whether to grant stay of execution of the orders made by the Subordinate Court on May 2, 2023 and November 24, 2022 pending hearing and determination of this appeal. As we have already seen, the order of November 24, 2022 was to the effect that the appellant was in contempt of court while the order of May 2, 2023 dismissed the appellant’s application dated December 15, 2022, through which he had sought stay of execution of the orders of November 24, 2022 as well as review, variation or setting aside of orders of June 2, 2021 and those of November 24, 2022. Basically, the appellant wanted the court to stay execution of the finding that he was in contempt and to ultimately set aside the ex parte injunction of June 2, 2021.
13.The principles that underpin this court’s exercise of jurisdiction to grant stay of execution pending appeal are outlined at Order 42 rule 6 (1) and (2) of the Civil Procedure Rules, 2010 which provide as follows:
15.The applicant has argued that he will suffer substantial loss if stay is not granted. If the appellant had succeeded in his application dated December 15, 2022, he would have obtained stay of execution of the orders of November 24, 2022 and setting aside the ex parte injunction of June 2, 2021. As we now know, the dismissal of the said application has since resulted in the appellant being committed to civil jail. This appeal will ultimately decide whether application dated December 15, 2022 ought to have been allowed. In the meantime, unless stay is granted, the appellant will serve the entire term of the civil jail. Loss of personal liberty is certainly substantial loss. I am thus persuaded that the applicant has demonstrated substantial loss. Regarding the other requirement that an application for stay be made without unreasonable delay, I note that the present application was filed on May 10, 2023, only eight days after the order appealed against was made. There has been no unreasonable delay.
16.In view of the foregoing, I am persuaded that a case has been made for granting stay pending appeal. To fast-track the appeal, I will also give directions on the appeal. Consequently, I make the following orders:a.The orders made by the Subordinate Court on May 2, 2023 and November 24, 2022 are hereby stayed pending hearing and determination of this appeal.b.The appellant to be released from civil jail forthwith, unless otherwise lawfully held.c.The appellant to file and serve record of appeal and written submissions on the appeal within 30 (thirty) days from the date of this ruling.d.The respondent to file and serve written submissions on the appeal within 30 (thirty) days from the date of service of the appellant’s submissions.