Mudavadi (Suing as the Administrator of the Estate of Rosebella Jerono Mudavadi (Deceased) & 7 others v Kariuki (Sued as Administrator of the Estate of David Kariuki Waiganjo (Deceased) & 3 others (Environment and Land Case 140 of 2019) [2025] KEELC 8490 (KLR) (5 December 2025) (Ruling)
Neutral citation:
[2025] KEELC 8490 (KLR)
Republic of Kenya
Environment and Land Case 140 of 2019
MAO Odeny, J
December 5, 2025
Between
Geofrey Kegode Mudavadi (Suing as the Administrator of the Estate of Rosebella Jerono Mudavadi (Deceased)
1st Plaintiff
Joseph Mojong
2nd Plaintiff
Robert Langat
3rd Plaintiff
Richard Amdany
4th Plaintiff
Joshua Chepsergon
5th Plaintiff
Joshua Soi
6th Plaintiff
Francis Ruto
7th Plaintiff
Sammary Chepkemoi
8th Plaintiff
and
Jane Njambi Kariuki (Sued as Administrator of the Estate of David Kariuki Waiganjo (Deceased)
1st Defendant
Gillette Auctioneers
2nd Defendant
The OCS Nakuru Police Station
3rd Defendant
The Honourable Attorney General
4th Defendant
Ruling
1.This ruling is in respect of two Notice of Motion applications, dated 19th September, 2025, and 22nd September, 2025, by the 2nd and 1st Defendants respectively. The first application by the 2nd Defendant sought the following orders:a.Spentb.Spentc.That this Honorable Court be pleased to grant an order of stay of execution staying the execution of both the judgment delivered on the 6th August, 2025 and any consequential orders or proceedings arising therefrom pending the hearing and determination of the appeal filed herewith.d.That costs of this application be in the cause.
2.The application is supported by the annexed affidavit of Philip Mwaura Munyua (who trades in the name of the 2nd Defendant) sworn on 19th September, 2025, where he deponed that the 2nd Defendant is aggrieved by the judgment of the court dated 6th August, 2025, and has already filed a Notice of Appeal, further that the application has been filed without undue delay.
3.It was the 2nd Defendant’s deposition that the Plaintiffs may execute the judgment/decree, and further that he is aware that the Plaintiffs intend to subdivide the suit land and sell it off to third parties who will not be aware that there is a legal tussle involving the suit land. He stated that he has an arguable appeal and is willing to abide by any reasonable conditions set by the court as a prerequisite to granting the orders sought.
4.Richard Amdany, the 4th Plaintiff filed a Replying Affidavit sworn on 21st October, 2025, and deponed that he has the authority of his co-respondents to swear the affidavit on their behalf. It was his deposition that the Applicant has not offered any security towards the application pending appeal. The 4th Plaintiff deponed that the Applicant has not exhibited any prejudice that it will suffer should the orders sought not be granted.
5.The second application is the Notice of Motion application dated 22nd September, 2025, by the 1st Defendant seeking the following orders:a.Spentb.Spentc.That pending the hearing and determination of the Applicant’s intended appeal to the Court of Appeal, this Honourable Court be pleased to grant a stay of execution of the judgment issued on 6th August 2025 together with all the consequential orders thereof.d.That the costs of this application be provided for.
6.The application is supported by the annexed affidavit of Jane Njambi Kariuki, the 1st Defendant, who deponed that a dispute arose between the parties and upon hearing the matter, the trial court rendered a judgment on 6th August, 2025. The court found in favour of the Plaintiffs who are in the process of executing the said judgment as a warrant of sale of property in execution of a decree for money was applied for on 28th August, 2025.
7.It was the 1st Defendant’s deposition that she is likely to suffer irreparable and substantial loss if execution proceeds. She further stated that the intended appeal to the Court of Appeal is meritorious and has a high chance of success, and she is willing and ready to comply with any additional directions the court may give.
8.Richard Amdany, the 4th Plaintiff, filed a Replying Affidavit sworn on 30th September, 2025, with the authority of his co-respondents and deponed that a Notice of Appeal is not an appeal in itself as there is no Memorandum of Appeal filed. The 4th Plaintiff deponed that if the applicants are genuine with their application, then they need to deposit with the court a sum of Ksh.11, 253, 567/=.
9.It was his deposition that they have information that the 1st Applicant is disposing off all her property with the ultimate aim of defeating justice. Further that the Applicant will not suffer any prejudice should the orders sought not be granted.
1 St Defendant’s Submissions
10.Counsel for the 1st Defendant filed submissions dated 3rd November, 2025, and relied on the provisions of Order 42 of the Civil Procedure Rules and submitted that the judgment was delivered on 6th August, 2025, and the application was filed on 22nd September, 2025, immediately after the court resumed from recess. Counsel submitted that the application for stay was filed within a reasonable time and there was no delay.
11.On the issue of substantial loss, counsel submitted that without the order of the court, there is nothing preventing the Respondents from executing the judgment thus attaching and selling the Applicant’s property to recover the sums awarded in the judgment. Counsel submitted that there is no evidence that if the amounts awarded by the court are paid to the Respondents and the Applicant succeeds in the appeal, she would be able to recover the same from the Respondents.
12.Counsel submitted that the applicant is willing to comply with any conditions given by the court and urged the court to grant the orders sought and costs await the outcome of the appeal. Counsel relied on the cases of Butt vs Rent Restriction Tribunal [1982] KLR 417 and Consolidated Marine vs Nampijja & Another, Civil App No 93 of 1989 (Nairobi).
2 Nd Defendant’s Submissions
13.Counsel for the 2nd Defendant filed submissions dated 27th October, 2025 and identified the following issues for determination:a.Merits of the Application?b.Who should bear the costs of the Application?
14.On the first issue, counsel submitted that the 2nd Defendant will suffer substantial loss should the Plaintiff execute the judgment and further no evidence has been adduced that the Plaintiff will refund the substantial sum awarded to the applicants should their respective appeals be allowed.
15.Counsel relied on Order 42 Rule 6 of the Civil Procedure Rules and the cases of Runda Water Limited & another vs Timothy John Nicklin & another [2017] eKLR, RWW vs EKW and James Wangalwa & Another vs Agnes Naliaka Cheseto [2012] eKLR.
16.On the issue of security, counsel submitted that the Applicant, vide affidavit evidence has confirmed that he is ready and willing to abide by any reasonable conditions that this Court will impose for the grant of the stay of execution. Counsel relied on the cases of Absalom Dova vs Tarbo Transporters [2013] eKLR and Focin Motorcycle Co. Limited vs Ann Wambui Wangui & another [2018] eKLR.
17.Counsel submitted that the application was filed without unreasonable delay as the judgment was delivered on 6th August, 2025, and the application for stay of execution was filed on 19th September, 2025, immediately after the court resumed from recess. Counsel submitted that the appeal has high chances of success and will be rendered nugatory if the application for stay is not granted and urged the court to grant the orders sought. He relied on the case of Nduhiu Gitahi and Another vs Anna Wambui Warugongo [1988] 2 KAR.
Respondents’ Submissions
18.Counsel for the Respondents filed submissions dated 14th October, 2025, and opposed the two applications and submitted that no evidence of execution has been exhibited to the honourable court. Counsel submitted that the applicants have evaded the issue of security and proposed that a sum of Ksh.11, 253, 567/- be deposited with the court. Counsel urged the court to consider the duration this matter has taken in court and submitted that litigation must come to an end.
Analysis And Determination
19.The issue for determination in the two applications is whether the Applicants have met the threshold for the grant of stay of execution orders pending appeal.
20.For an Applicant to succeed in an application for stay of execution pending appeal, he/she must comply with the provisions under Order 42 Rule 6 of the Civil Procedure Rules which guide the court on whether to grant a stay of execution or not. A party must apply without undue delay, must prove that he/she will suffer substantial loss if stay orders are not granted, and offer such security as the court orders for the due performance of such decree or order as may ultimately be binding on him/her.
21.The grant of stay of execution is discretionary and such discretion must be exercised judiciously as was held in the Court of Appeal case of Butt v Rent Restriction Tribunal (1982) KLR 417 which provides guidance on how a court should exercise discretion and held that:1.The power of the court to grant or refuse an application for a stay of execution is a discretionary power. The discretion should be exercised in such a way as not to prevent an appeal.2.The general principle in granting or refusing a stay is; if there is no other overwhelming hindrance, a stay must be granted so that an appeal may not be rendered nugatory should that appeal court reverse the judge’s discretion.3.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 proceedings.4.The court in exercising its discretion whether to grant (or) refuse an application for stay will consider the special circumstances of the case and unique requirements. The special circumstances in this case were that there was a large amount or rent in dispute and the appellant had an undoubted right of appeal.5.The court in exercising its powers under Order XLI rule 4 (2)(b) of the Civil Procedure Rules, can order security upon application by either party or on its own motion. Failure to put security for costs as ordered will cause the order for stay of execution to lapse’.
22.On whether the application has been made without unreasonable delay, the judgment was delivered on 6th August, 2025, while the applications under consideration are dated 19th September, 2025, and 22nd September, 2025. I find that there was no unreasonable delay in filing the applications.
23.On whether the Applicants shall suffer substantial loss if the stay orders are not granted, the 1st Defendant informed the court that without the order of the court, there is nothing preventing the Respondents from executing the judgment of the court thus attaching and selling the 1st Defendant’s property to recover the sums awarded in the judgment. The 2nd Defendant on the other hand informed the court that it will suffer substantial loss should the Plaintiff execute the judgment and further no evidence has been adduced that the Plaintiff will refund the substantial sum awarded to the applicants should their respective appeals be allowed.
24.In the case of Samvir Trustees Ltd. –vs- Guardian Bank Ltd. (Nairobi (Milimani) HCCC No. 795 of 1997, the court held that:
25.In the case of Tropical Commodities Suppliers Limited 7 others v International Credit Bank Ltd (in liquidation) (2004) 2 EA 331 the Court persuasively defined the aspect of substantial loss thus:
26.The Applicants have stated that they have an arguable Appeal and if stay orders are not granted, their appeal will be rendered nugatory. As to what constitutes an arguable appeal, the Court of Appeal in Nairobi Women’s Hospital vs. Purity Kemunto [2018] eKLR held that:
27.This is a case involving several Plaintiff/Respondents who have given the 4th Plaintiff the authority to swear an affidavit on their behalf. The plaintiffs have different capacities in terms of finances and this decree involves payment of a decretal sum running into millions.
28.The Applicants have stated that the Respondents are in the process of execution of the money decree and that if the money is paid, they may not be in a position to refund the money should the appeal succeed.
29.Courts rarely grant a stay of execution of a money decree, but that is not to say that they will never grant a stay of execution of a money decree. Each case will depend on the circumstances at hand, and should the Applicant succeed in demonstrating the extreme difficulty in recovering the decretal sum from the Respondent in the event the appeal succeeds, the Applicant will have succeeded in showing that he stands to suffer substantial loss.
30.This is a matter that has been in court for more than a decade, as much as litigation must come to an end, the court has to balance the rights of a successful litigant and one who wants to appeal to have a second bite of the cherry.
31.I have considered the two applications and the submissions by counsel and find that in the interest of justice, it would be prudent and just to grant a conditional stay of execution in the following terms:a.That an order of stay of execution is hereby granted to the Applicants on condition that they deposit Kshs 200,000/ in a joint interest earning account of the Advocates on record within 30 days, failure of which the order lapses.b.Costs to abide by the outcome of the Appeal
DATED, SIGNED AND DELIVERED AT NAKURU THIS 5 TH DAY OF DECEMBER 2025.M. A. ODENYJUDGE