1.The applicants being aggrieved by the judgement of the Makueni Environment and Land Court (Mbogo, J.) which was delivered on 26h January 2023, in Case No. 80 of 2016, preferred an appeal. The applicants filed a notice of appeal and have moved this Court by way of a Notice of Motion dated 16th March, 2023 pursuant to rule 5 (2) (b) of the Court of Appeal Rules, seeking for a stay of the judgement pending hearing and determination of the appeal and for costs to abide the outcome of the appeal.
2.The application is predicated on grounds that the intended appeal is arguable; the applicants are at the risk of being evicted from the suit premises, where they live with their families; if stay is not granted they will suffer irreparable loss; and the appeal shall be rendered nugatory.
3.In the supporting affidavit of the 1st applicant sworn on 16th March, 2023, he deposes that each of the respondents have their matrimonial homes on the subject properties, where they live with their families. Further, they were issued with ownership documents by the government in 2000.
4.The respondent opposed the application by way of a replying affidavit sworn on 30th of March 2023, where he contends that the applicants have not met the twin principles necessary for granting stay, as they have failed to demonstrate that their appeal is arguable; that they have not sufficiently addressed the nugatory aspect; and that they have not demonstrated that damages will not adequately compensate them in the event the appeal is successful.
5.In his submission counsel for the applicants submits that the applicants have lived in the suit premises all their lives, the record shows that the respondent acquired the suit premises fraudulently. Counsel further rehashed the contents of the applicants’ affidavit on the grounds of appeal and the reasons why the appeal will be rendered nugatory. We need not repeat them.
6.On the part of the respondent, counsel submits that the draft memorandum of appeal was not attached to the application; that the case in the trial court was on eviction and the court declared the respondents as trespassers; and that the applicants did not claim adverse possession or file a counterclaim.
7.The application before us is based on rule 5 (2) (b) of this Court’s Rules which provide that;
8.In an application such as the one before us, the applicant is required to satisfy the court that he has an arguable appeal, one which is not frivolous, but not necessarily that the appeal will succeed in the end. Secondly, the applicant has to demonstrate that in the event stay is not granted the appeal will be rendered nugatory.
9.The twin principles referred to above were well captured in the following cases; -
10.We have carefully considered the application, the supporting affidavit, the replying affidavit, all annexures, submissions by both the applicants and the respondent’s counsel and the authorities cited by both sides. Without saying much so as not to appear to delve into the main appeal, from the affidavits and submissions we note the applicants have raised issues that deserve the courts attention, which leads us to the conclusion that the appeal is arguable.
11.The subject matter is land, it is not disputed that the applicants have lived in the suit premises with their families for years, indeed they have urged that the same is their ancestral home. Further, it has not been disputed that execution proceedings have commenced. In our view therefore, should we not grant the relief sought, this will pave way for the respondent to execute the judgement and decree in his favour, which is likely to lead to an irreversible consequence, and is likely to be prejudicial to the applicants in the event of a successful appeal.In Re Estate of Harish Chandra Hindocha (Deceased)  eKLR, this Court stated, inter alia;
12.In the end, we find that the applicants have satisfied the two limps necessary for grant of stay of execution. Accordingly, stay of judgement and execution is hereby granted pending hearing and determination of the intended appeal or until further orders of the Court.
13.Costs to abide the outcome of the appeal.