https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3243

Etemesi v Kokoyo (Environment and Land Appeal E031 of 2022) [2026] KEELC 3243 (KLR) (20 May 2026) (Ruling) Neutral citation: [2026] KEELC 3243 (KLR) Republic of Kenya In the Environment and Land Court at Kakamega Environment and Land Appeal E031 of 2022 A Nyukuri, J May 20, 2026 Between Reuben Lubanga Etemesi Applicant and Margaret Omusundi Kokoyo Respondent Ruling Introduction 1.Before court is a notice of motion dated 26th May 2025 filed by the appellant seeking orders of stay of execution of the judgment delivered in this case on 30th January 2025, pending the hearing and determination of the appeal lodged in the Court of Appeal in Kisumu. 2.The application is anchored on the affidavit sworn by the applicant on 26th May 2025. The applicant’s case is that he was dissatisfied with this court’s judgment and lodged an appeal against the same. That the respondent already served him with an eviction order dated 20th May 2025, which was to take effect on 20th June 2025. That the respondent intends to evict him with speed. That he has a good appeal with chances of success and that if the orders sought are not granted, the appeal shall be rendered nugatory. That he will suffer irreparable injury and is ready to comply with any conditions that may be set by the court. That no prejudice shall be suffered by the respondent. 3.The application was opposed. The respondent filed a replying affidavit sworn on 11th November, 2025 opposing the application. She stated that no proof of filing appeal had been provided by the applicant. That no memorandum and record of appeal have been served on the respondent within 60 days as required under Rule 82 of the Court of Appeal Rules. That he has a right to execute the decree which was made in January 2025. That this court is now functus officio. That the judgment was delivered in January 2025 and the application for stay made in May 2025, five months later which amounts to inordinate delay. That no security for costs have been deposited and that if the application is allowed, the applicant ought to deposit costs. Analysis and determination. 4.The court has carefully considered the application, and response thereto. The sole issue for the court’s determination is whether the applicant has met the threshold for grant of orders of stay of execution pending appeal. 5.Order 42 Rule 6 of the Civil Procedure Rules provides for the jurisdiction of the court to grant orders of stay of execution pending appeal as follows;“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.” 6.In Tropical Commodities Suppliers Ltd & Others vs. International Credit Bank Ltd (in liquidation) [2004] 2 EA 331 the court discussed the element of substantial loss as follows;“Substantial loss does not represent any particular mathematical formula. Rather, it is a qualitative concept. It refers to any loss, great or small, that is of real worth or value as distinguished from a loss without value or a loss that is merely nominal.” 7.In the instant matter, the court dismissed the appeal filed by the applicant herein with costs. No positive order capable of being stayed was made by this court and therefore an order of stay of execution pending appeal at the Court of Appeal is unavailable for the appellant herein and cannot be granted. 8.In the premises, I find no merit in the application dated 26th May 2025, which I dismiss with costs to the respondent. 9.It is so ordered. DATED, SIGNED AND DELIVERED AT KAKAMEGA IN OPEN COURT/VIRTUALLY THROUGH MICROSOFT TEAMS VIDEO CONFERENCING PLATFORM THIS 20TH DAY OF MAY, 2026A. NYUKURIJUDGEIn the presence of;The appellant/applicant in personMr. Luchivya for the respondentCourt Assistant: Delphine