1.This is the Notice of Motion dated 30th September 2022 brought under;
2.It seeks Orders;1.Spent.2.Spent.3.That there be a stay of execution of the Judgment and all consequential orders of Hon. Irene Marcia Kahuya Principal Magistrate, in Kajiado ELC Case No.E43 of 2021 Kanyet Ene Nkaayia (Suing as next of Kin of Nkaayia Loontareto Ntete) Vs. Leshoko Nkonene Siamito & 2 Others dated and delivered on the 31st day of August 2022 pending the hearing and determination of the Appellant’s Appeal.4.That costs of this application be awarded to the Applicant in any event.
3.The grounds are on the face of the application and are set out in paragraphs a to i.
4.The Application is supported by the affidavit of Leshoko Nkonene Siamito the Appellant/Applicant herein, sworn on the 30th September 2022.
5.The Application is opposed.There is a Replying Affidavit sworn by Kanyet Ene Nkaayia, the 1st Respondent, on the 19th October 2022.
6.On the 24th October 2022, the court with the consent of the parties directed that the Notice of Motion be canvassed by way of written submissions.
The Appellant’s Submissions.
7.They are dated 18th November 2022.They raise issues for determination;1.Whether a stay of execution pending appeal should be granted?2.Whether grounds for stay of execution pending appeal have been established?
8.Counsel submitted that if the stay is not granted the Respondent will have the Applicant’s title LR. No. Kajiado/Mailua/4952 cancelled and the property may be disposed of; rendering this appeal nugatory.He has put forward the cases of Miriam Teresiah Wairimu Vs. Wanjiku Mwangi (2018) eKLR.Shah Munge & Partners Ltd Vs. National Social Security Fund Board of Trustees & 3 Others (2018) eKLR.Kenya Shell Ltd Vs. Benjamin Karugu Kibiru & Another (1996) eKLR.
9.It is also submitted that the Appellant/Applicant will suffer substantial loss if the stay is not granted as the Respondent is likely to sell the property to third parties.
10.It is further submitted that this application has been brought without unreasonable delay as judgment was delivered on 31st August 2022.
11.It is submitted that the Appellant/Applicant is willing to comply with any conditions imposed by the Court.He prays that the application be allowed.
The 1st Respondent’s submissions.
12.They are dated 2nd November 2022. They raise one issue for determination;a.Should the Applicant be granted stay of execution pending appeal?.
13.Counsel submitted that this court is called upon to ensure that no party suffers prejudice that cannot be compensated by an award of costs.
14.It is also submitted that the applicant has not shown what substantive loss he will stand to suffer.Reliance is placed on the case of James Wangalwa & Another Vs. Agnes Naliaka Cheseto (2012) eKLR.
15.Further that the Applicant does not reside on the suit property but on an adjacent parcel.
16.It is further submitted that the Application has not met the threshold for grant of Stay of execution under Order 42 rule 6 and the same ought to be dismissed with costs.
17.I have considered the Notice of Motion, the affidavit in support and the response thereto.I have also considered the written submissions and the authorities cited. The issue for determination is whether the Applicant has satisfied the conditions for grant of stay of execution set out under Order 42 Rule 6 of the Civil Procedure Rules.
18.The Principles guiding the grant of stay of execution pending appeal are well settled.Order 42 rule 6(2) of the Civil Procedure Rule provides that;(2)No order for stay of execution shall be made under sub rule (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; andb.Such security as the court orders for due performance of such decree or order as may ultimately be binding on him has been given by the applicant.
19.It is clear from the above Provisions that for an order of stay of execution to be granted, specific conditions must be met by the applicant.
20.I have considered the Notice of Motion herein and I find that it has been brought without unreasonable delay.Judgement was delivered on 31st August 2022 and this application was filed on 30th September 2022.
21.It is the Appellant’s/Applicant’s case that he has been in occupation of the suit property since 28th January 2011 and stands to suffer irreparably if this title is cancelled.
22.The Respondent on the other hand contends that the Appellant does not reside on the suit property but in adjacent parcel.
23.That the Appellant has nothing to lose if stay is not granted as the Respondent has been denied the use and enjoyment of her deceased’s husband land.
24.I find that the Appellant/Applicant has failed to demonstrate that he will suffer substantial loss if the orders are not granted. In the case of James Wangalwa & Another Vs. Agnes Naliaka Cheseto (2012)eKLR the court stated that;
25.I find that the Appellant’s/Applicant’s application has not met the conditions set out in Order 42 rule 6(2) of the Civil Procedure Rules.
26.I find no merit in this application and the same is dismissed. The costs do abide the outcome of the Appeal.