https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4457

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT** **AT ELDORET** **ELC CASE No. 235 OF 2014** **SELLY J. BUSIENEI** …………………………….. **PLAINTIFF/APPLICANT** **VERSUS** **RICHARD K. BUSIENEI** ………………………………….. **1ST DEFENDANT** **JACKSON K. CHEBET** ………………. **2ND DEFENDANT/RESPONDENT** **RULING:** 1. Before me is a Notice of Motion Application by the Plaintiff dated 19th February, 2026 in which she seeks the following orders:- 2. Spent 3. Spent 4. THAT there be a stay of execution of the decree issued on 18th September, 2023 together with all the consequential orders thereto pending the hearing and determination of the appeal to the Court of Appeal. 5. THAT costs of the application be in the cause. 6. The motion is supported by the grounds therein as well as those set out in the Supporting Affidavit sworn on the same date by the Plaintiff/Applicant. The Plaintiff/ Applicant states that she has appealed against the whole judgement delivered on 19.09.2023 through ***Eldoret COACA/E019/2026, Selly J. Busienei vs Richard K. Busienei & Jackson K. Chebett***. She avers that pursuant to leave granted by Hon. Justice Warsame on 12.06.2025, she filed and served the record of appeal and they are awaiting directions on the appeal. The Plaintiff averred that unless an order of stay is granted, the 2nd Defendant may proceed with execution to her detriment and render the Appeal nugatory. That there is thus need for an order of stay of execution pending appeal. 7. The Plaintiff averred that the decree being partly a liquidated sum, she is willing to deposit such surety and comply with any conditions on security for the due performance of the decree. She deponed that the Appeal is not frivolous, but raises weighty legal issues for determination by the Court of Appeal and has high chances of success. She averred that this court has jurisdiction to grant the orders sought. Further, that the application had been made promptly, in good faith and any delays were due to administrative process. She claimed that the Respondents will suffer no prejudice if the orders herein are granted. She pleaded for an opportunity to pursue her appeal before the appellate court, and asked that the orders be granted. 8. The motion is opposed by Jackson K. Chebett, the 2nd Defendant/Respondent, vide a Replying Affidavit sworn on 17th March, 2026. He states that judgment herein was delivered on 19.09.2023 and the Plaintiff had sufficient time to settle the judgment or pursue her Appeal. He urged that the allegation that the Appeal will be rendered nugatory is speculative and unsupported by evidence. He averred that the decree is a money decree thus its execution cannot render the intended appeal nugatory since the Plaintiff’s money can be reimbursed should her appeal succeed. The 2nd Respondent states that as a director and shareholder of financially sound companies, he is able to pay back the decretal sum in the event the appeal succeeds. 9. The 2nd Defendant further averred that there is no competent appeal as the Plaintiff failed to serve him with the Notice and Record of Appeal within the mandatory time, and he has since filed an application to strike out the said Appeal. He claims that the Plaintiff has not demonstrated that she has an arguable appeal, and further, that even the existence of an appeal does not entitle her to an order of stay of execution. The 2nd Defendant deponed that the application is misconceived, incompetent and an abuse of court as it is intended to delay the execution of the decree. He asserts that he is entitled to enjoy the fruits of his judgment, and any delay thereto will occasion him prejudice and injustice. He claimed that the Plaintiff had not offered any security nor established sufficient cause to warrant a stay of execution. He thus asked that the application be dismissed with costs. 10. When this matter was mentioned on 13.05.2026, counsel for the 1st Defendant expressed support for the application herein, and informed the court that they would not be filing any documents. **Submissions:** 1. The motion is canvassed by written submissions. The plaintiff’s submission in support of the Motion are dated 16th April, 2026. As for the 2nd Defendant, the submissions filed in opposition to the Application are dated 11th May, 2026. **Analysis and Determination:** 1. Accordingly, I have carefully considered the motion, the grounds pleaded in support thereof, the Supporting Affidavit and the Replying Affidavit. I have also read and considered the rival submissions filed by the parties as well as the law and authorities cited thereunder. Guided by the foregoing, I find that the only issue for determination is whether the Plaintiff has met the legal threshold to warrant a stay of execution of the judgment delivered on 19.09.2023 pending appeal. 2. As correctly submitted by both counsel herein, in considering applications for a stay of execution pending appeal, this court must ensure that the Applicant has satisfied the criteria established in Order 42 Rule 6 (1) & (2) of the Civil Procedure Rules, which states as follows:- ***6. Stay in case of appeal [Order 42, rule 6]*** ***(1) No appeal or second appeal shall operate as a stay of execution or proceedings under a decree or order appealed from except in so far as the court appealed from may order but, the court appealed from may for sufficient cause order stay of execution of such decree or order, and whether the application for such stay shall have been granted or refused by the court appealed from, the court to which such appeal is preferred shall be at liberty, on application being made, to consider such application and to make such order thereon as may to it seem just, and any person aggrieved by an order of stay made by the court from whose decision the appeal is preferred may apply to the appellate court to have such order set aside.*** ***(2) No order for stay of execution shall be made under subrule (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; and*** ***(b) such security as the court orders for the due performance of such decree or order as may ultimately be binding on him has been given by the applicant.*** 1. I will further make reference to the case of ***Selestica Limited vs Gold Rock Development Ltd (2015) KEHC 7450 (KLR)***, where it was stated that:- ***“Stay of execution pending appeal is governed by Order 42 Rule 6 of the Civil Procedure Rules. The power to grant an application for stay of execution pending appeal is a discretionary one on sufficient cause being shown, where the applicant may suffer substantial loss; the application is made without unreasonable delay and on provision of such security as the Court may impose. To grant or refuse an application for stay of execution pending appeal is discretionary in that the Court when granting stay has to balance the interests of the Appellant with those of the Respondent…”*** 1. As a general principle, a successful litigant should not be deprived of the fruits of his judgment except for good cause. Therefore, for a court to grant an order of stay execution, the court must be satisfied that the conditions set out under Order 42 Rule 6, and reflected in the above decision, have been met. 2. The first condition is that the party seeking stay stands to suffer substantial loss of the order of stay is not granted. As regards substantial loss, in ***Kenya Shell Limited vs Kibiru & Another (1986) KECA 94 (KLR)****,* the Court of Appeal stated that:- ***“It is usually a good rule to see if order XLI rule 4 of the Civil Procedure Rules can be substantiated. If there is no evidence of substantial loss to the applicant, it would be a rare case when an appeal would be rendered nugatory by some other event. Substantial loss in its various forms, is the corner stone of both jurisdictions for granting a stay. That is what has to be prevented. Therefore without this evidence it is difficult to see why the respondents should be kept out of their money.”*** 1. Additionally, in ***James Wangalwa & Another vs Agnes Naliaka Cheseto (2012) eKLR***, the Court had this to say on the issue of substantial loss and its connection to the arguability of the appeal:- ***“11. No doubt, in law, the fact that the process of execution has been put in motion, or is likely to be put in motion, by itself, does not amount to substantial loss. Even when execution has been levied and completed, that is to say, the attached properties have been sold, as is the case here, does not in itself amount to substantial loss under Order 42 Rule 6 of the CPR. This is so because execution is a lawful process.*** ***The applicant must establish other factors which show that the execution will create a state of affairs that will irreparably affect or negate the very essential core of the Applicant as the successful party in the appeal. This is what substantial loss would entail, a question that was aptly discussed in the case of Silverstein N. Chesoni [2002] 1KLR 867, and also in the case of Mukuma vs Abuoga quoted above. The last case, referring to the exercise of discretion by the High Court and the Court of Appeal in the granting stay of execution, under Order 42 of the CPR and Rule 5(2) (b) of the Court of Appeal Rules, respectively, emphasized the centrality of substantial loss thus:*** ***“…the issue of substantial loss is the cornerstone of both jurisdictions. Substantial loss is what has to be prevented by preserving the status quo because such loss would render the appeal nugatory.”*** ***With this observation, of course, a frivolous appeal cannot in practical terms be rendered nugatory. The only admonition however, is that the High Court should not base the exercise of its discretion under order 42 Rule 6of the CPR only on the chances of the success of the appeal. Much more is needed in accordance with the test I have set out above.”*** 1. In the present case, the Plaintiff averred that she stands to suffer substantial loss if the order of stay is not granted. The Plaintiff submitted that she is beneficial owner of the suit land known as L.R. No. 6459/Block 5 by virtue of being a spouse of the 1st Defendant herein. The Plaintiff argued that her only intention was to protect assets that form part of her matrimonial property, which had been illegally and unlawfully sold by her husband. In this regard, she has averred that if the order of stay is not granted, her appeal will be rendered nugatory. 2. The 2nd Respondent, on the other hand, maintains that the application is intended merely to delay the enjoyment of the fruits of the judgment. The 2nd Respondent claims that the decree arises from a money decree thus no substantial loss can arise since whatever amount paid on the decree can be refunded. He has claimed to be a man of means thus he will be able to refund the decretal sum should the Plaintiff’s appeal succeed. 3. However, the decree in question is not just a money decree as alleged by the 2nd Respondent. I note that the trial judge made the following disposition in the judgment dated 19.09.2023:- ***“From the above analysis it is clear that the Plaintiff has failed to prove her case on a balance of probabilities. The same is dismissed with costs to the 2nd Defendant. On the other hand, the 2nd Defendant has proved his counterclaim on a balance of probabilities save for a claim of mesne profits which is not granted. I enter judgment for him in the same (sic) of KShs. 16,300,000/- with costs and interest to be paid jointly and severally by the Plaintiff and 1st Defendant.”*** 1. The decree is therefore not just a money decree, since there were several reliefs sought in the 2nd Defendant’s in Counterclaim. Among them is a declaration to the effect that the 2nd Respondent had acquired proprietary rights over the suit property, as well as an order for specific performance for the Plaintiff to submit all completion documents in respect of the suit property, and in default, the Deputy Registrar to execute the necessary documents on her behalf. 2. The reliefs granted in the said judgment, therefore, directly affect the ownership of the suit property, and its execution would result in the severance and/or loss of the spousal interests claimed by the Plaintiff on the land. In the event the appeal succeeds and the completion documents have been surrendered and a transfer registered, the resultant prejudice to the Plaintiff would not be easily reversible. The court is therefore persuaded that substantial loss has been demonstrated. 3. On whether the application has been filed without unreasonable delay, I note that the Application for stay was filed on 24.02.2026, while the judgment was delivered on 19.09.2023 marking a delay of about 1 year 5 months. It appears, however, that in between the delivery of the judgment and the filing of this Application, the Plaintiff moved the court of appeal for leave to file the Appeal out of time. Thereafter, the Plaintiff claims that she has filed and served the Notice of Appeal and the Record of Appeal and the matter is now awaiting directions on the Appeal. 4. The 2nd Respondent claims that there is no competent appeal since he is yet to be served with either the Notice of Appeal or the Record of Appeal. He further claims that he has filed an application challenging the appeal on those grounds. My finding on this is that the said issue of competence of the appeal can only be determined by the Court of Appeal itself, and not this court. In any event, Order 42 Rule 6(4) provides that:- ***For the purposes of this rule an appeal to the Court of Appeal shall be deemed to have been filed when under the Rules of that Court notice of appeal has been given.*** 1. Therefore, as far as this court is concerned, without any decision by the appellate court striking out the appeal, there is in existence an appeal that can be protected by an order of stay of execution. Thereby, I find that the delay has been satisfactorily explained. 2. With regard to security, the Plaintiff has expressed willingness to comply with any conditions imposed by the court but did not propose the kind or manner of security she intends to give. Nonetheless, the requirement of security is a matter within the discretion of the court. In ***Focin Motorcycle Co. Limited vs Ann Wambui Wangui & Another (2018) eKLR***, it was stated:- ***“Where the applicant proposes to provide security as the Applicant has done, it is a mark of good faith that the application for stay is not just meant to deny the respondent the fruits of judgment. My view is that it is sufficient for the applicant to state that he is ready to provide security or to propose the kind of security but it is the discretion of the Court to determine the security. The Applicant has offered to provide security and has therefore satisfied this ground for stay.”*** 1. Notably the purpose of security, as explained in ***Arun C. Sharma vs Ashana Raikundalia T/A Rairundalia & Co. Advocates & 2 Others (2014) eKLR****,* is to guarantee the due performance of such decree or order as may ultimately be binding on the applicant, and not to punish the judgment debtor. In the circumstances, the court deems it appropriate to order that the Plaintiff deposits KShs. 1,630,000/-, being 10% of the liquidated amount of the decree, as security for the due performance of the decree. The said security shall be paid into a joint account to be held by the Advocates for the Plaintiff/Applicant and the 2nd Defendant/Respondent herein within forty-five (45) days of this ruling, failing which the order of stay shall automatically lapse. 2. **Who shall bear the costs of the Application?** 3. Courts have discretion to award costs. This discretion is derived from section 27 of the Civil Procedure Act, which provides that:- ***(1) Subject to such conditions and limitations as may be prescribed, and to the provisions of any law for the time being in force, the costs of and incidental to all suits shall be in the discretion of the court or judge, and the court or judge shall have full power to determine by whom and out of what property and to what extent such costs are to be paid, and to give all necessary directions for the purposes aforesaid; and the fact that the court or judge has no jurisdiction to try the suit shall be no bar to the exercise of those powers:*** ***Provided that the costs of any action, cause or other matter or issue shall follow the event unless the court or judge shall for good reason otherwise order.*** 1. The general rule therefore, is that costs follow the event unless the court, for good reason, orders otherwise. In this instance, the Applicant has succeeded in the Application. I note that in the Application, she asked the court to direct that the costs be in the cause. Since the suit herein was already determined, I do hereby direct that the costs of this application shall abide the outcome of the Appeal. **Orders:-** 1. Flowing from, the above analysis, the Application dated 19th February, 2026 has merit and the same is determined as follows: - 2. There shall be a stay of execution of the decree issued on 18th September, 2023 together with all the consequential orders thereto pending the hearing and determination of the appeal to the Court of Appeal. 3. The stay granted in (a) above is granted on condition that the Plaintiff/Applicant deposits Kshs 1,630,000/= as security for the due performance of the decree into an interest earning joint account to be held by the Advocates for the plaintiff/Applicant and the 2nd Defendant/Respondent within forty (45) days of this ruling, failing which the order of stay shall automatically lapse. 4. The costs of this application shall abide the outcome of the appeal. 5. Orders accordingly. **DATED**, **SIGNED** and **DELIVERED** virtually at **ELDORET** on this **16TH** day of **JULY**, **2026** vide Microsoft Teams. **HON. C. K. YANO** **ELC, JUDGE** In the virtual presence of:- Ms. Omusundi holding brief for Mr. Omusundi for plaintiff. Mr. Kiprono for the 2nd Defendant. Mr. Mwetich for 1st Defendant. Court Assistant - Laban.