a. Whether the Plaintiff has demonstrated reasons for the grant of the orders for stay of execution pending appeal
11.It is trite law that the power of a court to grant stay of execution is discretionary and it must not be exercised capriciously or whimsically but in a way that does not prevent a party from pursuing its appeal so much so that the same is not rendered nugatory should the appellate Court overturn the trial court’s decision. This was the holding in Butt vs. Rent Restriction Tribunal (1979) e KLR.
12.Ultimately, and as the position in law is, the purpose of stay of execution is to preserve the subject matter in dispute while at the same time trying to balance the interests of the parties and the circumstances of the case. This was the holding in the Court Appeal case of RWW vs. EKW (2019) eKLR wherein the court stated as follows:-
13.Accordingly, the principles guiding the grant of a stay of execution pending appeal are well settled. For this Court and the subordinate courts, they are provided for under Order 42 Rule 6(1) and (2) of the Civil Procedure Rules. It provides:
14.Further, in Masisi Mwita -vs- Damaris Wanjiku Njeri Civil Appeal No.107 of 2015, (2016) eKLR, the Court espoused the principles for grant of stay by stating that: -
15.Thus, an Applicant seeking stay of execution of a decree or order pending appeal is obligated to satisfy the conditions set out in Order 42 Rule 6(2) of the Civil Procedure Rules. These are that he must (a) show a sufficient cause for that, (b) demonstrate that substantial loss may result to him as the Applicant unless the order is made, and (c) that he provides such security as the court orders for the due performance of such decree or order as may ultimately be binding on the Applicant has been given. Moreover, the Application for stay must of course be made without any unreasonable delay.
16.In terms of the first principle about showing sufficient cause, for the grant of the order of stay of execution, it must be borne that the law itself provides that it is not automatic that once a party appeals from an order or judgment he/she is given a stay of execution or proceedings. It means he/she must go beyond that obvious fact and meet the conditions for stay. Equally this court is alive to the fact that Respondent being the successful litigant ought to be allowed to enjoy the fruits of his judgment. However, the Court can exercise its discretion to stay the execution of the said judgement. In so doing, the first and foremost point to consider is whether or not there is sufficient cause to deprive the Respondent from enjoying the fruits of its judgment. Sufficient cause has been explained by courts time and again.
17.The same question was posed in Okiya Omtata Okoiti & another v Okiya Omtata Okoiti & 4 others  eKLR and the Court answered as follows:
18.Again, parties ought to be clear in their mind that Sufficient cause means bona fide or genuine and more than inaction on the part of a party. But in The Registered Trustees of the Archdiocese of Dar es Salaam vs The Chairman Bunju Village Government & Others the Court of Appeal in Tanzania expressed that there is difficulty in bringing out the clear meaning of the phrase “sufficient cause”.
19.However, in Parimal v. Veena, (2011) 3 SCC 545, the Supreme Court of India observed that:-
20.The above meaning imports the idea of good faith, honesty, blamelessness and diligence in action. Thus, in the case of Halal & Another -vs- Thornton & Turpin  Ltd  eKLR the Court of Appeal has held that:
21.In the instant case, the Applicant contended that he would likely be evicted from the suit property if orders of stay were not granted thereby rendering the appeal herein nugatory. Nevertheless, one thing is clear: there is evidence that the suit property is registered in the name of the 1st Respondent and the Court already found that the Applicant had been in illegal occupation to the exclusion of the rightful owner. He is so to say trespasser who should not be permitted to hang onto one’s property endlessly through the use of court processes. To this end, in my humble view, his appeal cannot be rendered nugatory as the suit property was not his to begin with. Further he asserts that his appeal raises serious issues of law and fact and in so doing they have an arguable appeal. However, I note that there is no memorandum of appeal attached to the instant application to which the Applicant can rely on the face of it to say it has an arguable appeal. Apart from arguing from a hollow point that the intended appeal is arguable merely because of filing a Notice of Appeal, there is no material demonstrate that.
22.Therefore, I find that the 1st Respondent stands to be worse off than the Applicant if he, having being found to be the registered proprietor of the suit property, is denied the use and occupation of the suit property as a result of the illegal occupation by the Applicant. Thus, this court finds that the Applicant has not established sufficient cause to warrant the grant of a stay of execution and I am persuaded that the 1st Respondent ought to be allowed to enjoy the fruits of his judgement. The 1st Respondent has already suffered more prejudice than necessary be being denied of the use and occupation of the property and greater prejudice would be suffered to deprive him of the use thereof after judgment.
23.On the second principle, being substantial loss to be demonstrated, this Court is not bound to consider it once there is no sufficient cause that is shown by the Appellant. Suffice it to say that substantial loss was aptly defined in the case of James Wangalwa & Another vs. Agnes Naliaka Cheseto  eKLR, that: -
24.Similarly, in Century Oil Trading Company Ltd -vs- Kenya Shell Ltd Nairobi (Milimani) HCMCA No. 156 of 2007, Kimaru J observed as follows: -
25.In view of the above authorities, the onus was on the Applicant to show that the loss he was likely to suffer if the stay order was not granted is of a considerable amount and peculiarity as not to be compensated by an award of damages should the judgment be overturned by the superior court. In the instant application, the Applicant contends that he would suffer substantial loss if stay of execution was not granted because his family have been in occupation of the suit property for over 41 years since 1982. Further he asserts that he has also made major investments in terms of construction of the suit property having constructed his matrimonial home and a furniture shop which is his main source of livelihood for his family and himself and if they are evicted, they will be left destitute. However, in the case of Charles Wahome Gethi vs. Angela Wairimu Gethi  eKLR, the Court of Appeal when faced with a similar issue stated that-
26.Guided by the above authority, I am of the view that it’s still not sufficient for the Applicant to state they reside, or eke out a living and or they made major investments in the suit property for the same to be termed as substantial loss. In any event, when the Applicant was given a temporary occupation licence to be on the parcel of land the condition thereon, which he admitted in evidence, was that he was to be on it on a temporary basis and was not to build any permanent structures on it. Moreover, by the Applicant arguing that the property is his matrimonial home and the family would be rendered destitute, it is farfetched. The property was a commercial and not a residential property. Again, not evidence was led at the hearing that the Applicant’s family resided on the property. Thus, when, if indeed true, he proceeded to put up permanent structures thereon he did it contrary to the conditions of the licence and illegally so, and at his peril. His illegal actions and structures cannot entitle him to continue remaining on the Respondent’s land.
27.Besides, the intended execution process that is set to be undertaken by the 1st Defendant/Respondent of evicting the Plaintiff/Applicant from the suit process is actually a lawful process and the same does not amount to substantial loss. This is on account of the fact that if it happens, the same would be carried out pursuant to a court order. The court in James Wangalwa Supra pronounced itself on the issue of execution not taking the place of substantial loss by affirming that;
28.Furthermore, I agree with the assertions of the Respondents that the Applicants ought to have, at the very least, attached a valuation report to indicate the value of the purported matrimonial home and or the furniture business to enable this Court to substantially determine whether the Applicant would suffer any substantial loss in order to grant the order of stay. It is not enough for an Applicant to say that he will suffer substantial loss, he ought to have quantified the said loss or put in material value and shown that it would be of such a peculiar nature that it cannot be compensated should the Appeal succeed. This would have enabled this court to ascertain that the loss the Applicant would suffer would be substantial that it would take long or call for a colossal sum of money to restore to its original position. Temporary structures do not take this. To this end, the Applicant has failed to satisfy the second limb also.
29.The third principle, that an Applicant must surmount, and which is couched in mandatory terms for purposes of being granted a stay order pending appeal is that he or she must furnish security. Thus, the Applicant must establish and or fulfil his readiness and or willingness to provide such security that the court may deem fit and or expedient in the circumstances of the case.
30.The Applicant has asserted that it is ready to furnish such security as the court may deem fit. He did not provide any basis or quantum thereto. The 1st Respondent has in turn urged this Court to order for a deposit of the sum between Kshs. 500,000/= to Kshs. 800,000/= to be deposited in a joint interest earning account in the names of both parties being security for costs by the Plaintiff/Applicant and that the record of appeal to be filed within a specific period to be determined by court. In the case of Arun C. Sharma vs. Ashana Raikundalia T/A Rairundalia & Co. Advocates & 2 others  eKLR, the court addressed itself on the purposes and essence of deposit of security by aptly stating that;
31.Further in the case of RWW vs. EKW  eKLR, the court stated as follows:
32.From the above persuasive decisions, it is clear that the issue of security is discretionary and it is upon the court to determine the same. Mere statements about preparedness to offer security for costs are not enough. In any event, the Applicant failed to show sufficient cause for the grant of stay of execution. He also failed to demonstrate any substantial loss that may result from the execution taking place. It is trite that substantial loss is the cornerstone for grating of stay of execution and if the same is absent this Court’s discretion lies with the allowing the Respondent to enjoy the fruits of their judgment. I am persuaded by the court in Kenya Shell Limited -vs- Benjamin Karuga Kibiru & Another  eKLR; where the court espoused the issue of substantial loss being the cornerstones of jurisdiction for grating stay by stating as follows;
33.Thus, in the instant Application the third limb also fails. Lastly, on the issue of the Application being brought without undue delay, I find that it is not in dispute that the impugned judgement was delivered on 27/3/2023 and the Application for stay of execution against the said judgement was filed on 06/04/2023 which was only nine (9) days after the judgment. I thus find that the Application has been brought without undue delay but that does not dislodge the first three sequential limbs that he ought to have satisfied. Delay is only considered as a last shot if one satisfies all the other limbs as set out under Order 42 Rule 6(2).
34.The upshot of this is I find that the Applicant has failed to meet the mandatory tenets under which this application would have been successful. Therefore, the Court, is of the view that the Application fails miserably.