https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4434

Burke (Suing as the legal representative of the Estate of Lucy Wanjiku Owen Burke) v Butuba & 2 others (Land Case Appeal E155 of 2025) [2026] KEELC 4434 (KLR) (13 July 2026) (Ruling) Neutral citation: [2026] KEELC 4434 (KLR) Republic of Kenya In the Environment and Land Court at Nairobi Land Case Appeal E155 of 2025 MN Kullow, J July 13, 2026 Between Francis Karanja Owen Burke (Suing as the legal representative of the Estate of Lucy Wanjiku Owen Burke) Appellant and Vincent Ouma Butuba & 2 others & 2 others Respondent Ruling Introduction 1.The Appellant filed the notice of motion application dated 28th January 2026 seeking the following ordersa.Spentb.That a stay of execution against the defendant’s decree and certificate of stated costs in Milimani Commercial Cause MC ELC E037 OF 2023 be granted pending hearing and determination of this application interpartesc.Costs of the application 2.The application was premised on grounds as in the supporting affidavit by the Applicant. He deponed that he had filed a Memorandum of appeal against the judgement delivered on the 31st July 2025, which judgement the Respondent had extracted a decree on the issue of costs and was seeking to execute the same. That the execution of the same will be prejudicial to the Applicant hence this application 3.The 1st Respondent filed a replying affidavit sworn on the 20th February 2026 indicating that the Applicant’s suit had been dismissed in the lower court with costs to the Respondent. That the Applicant had not made any orders for stay up until, the Respondent sought to execute the judgement by filing for costs and that the appeal filed did not operate as a stay. 4.He further deponed that the orders issued were negative orders incapable of being stayed 5.The Applicant filed a further affidavit in response to the replying affidavit indicating in as much as the orders issued on the judgment were negative orders, the stay sought after was on the execution of the decree issued on the 27th January 2026 that had taxed cost awarded to the tune of Ksh. 89, 900/=, being a monetary decree, was capable of stay Submissions 6.The Applicant submitted as follows;Whether the Applicant has met the conditions necessary for issuance of stay of execution ordersThe Applicant’s argument was that they had proven substantial loss to be occasioned to them being a monetary decree and that the Respondent had not proved that they will compensate if the appeal succeeds. Counsel relied on the case of National Industrial credit bank limited Vs Aquinas Francis Wasike and Another (2006). Secondly, it was submitted that the application had been made without undue delay and lastly, they were willing to provide the security for due performance of a decree. 7.The 1st Respondent in his submissions reiterated the contents in his replying affidavit insisting the dismissal of a suit into a negative order, is incapable of being stayed like in the instant case. That the Applicant in seeking to stay the recovery of party and party costs, is asking the court to stay a negative order that gave rise to the decree and party and party costs which is impossible. That the argument raised is not tenable being that without the dismissal of the suit, then the Respondent would not have received the costs and hence extraction of the decree, so the Applicant cannot separate the two. Counsel relied on the case of Nywele Nzuri Limited -Vs- Captain Real Estate Limited (Civil Appeal E176 of 2025) [2025] KEHC 11515 (KLR). 8.Counsel also submitted that the application was frivolous being that the application sought for stay orders pending hearing of th application and not the appeal making it untenable Analysis and determination 9.The Court has considered the application, and submissions and the main issue for determination is whether the application is merited.The Appellants’ prayer for stay of execution and all proceedings before this Court pending appeal, is brought under Order 42 Rule 6 (1) and (2) and Order 22 Rule 22. Order 42 Rule 6 of the Civil Procedure Rules provides that; -1.“No appeal or second appeal shall operate as a stay of execution or proceedings under a decree or order appealed from except appeal case of 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 sub-rule 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; andb.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”. 10.It is trite that the power of the Court to grant stay of execution of a decree pending appeal is discretionary. However, the discretion should be exercised judicially as rendered in the case of Butt -Vs- Rent Restriction Tribunal [1979] KECA 22 (KLR) where the Court of Appeal held:-“A stay which would otherwise be granted ought not to be refused because the judge considers that another, which in his opinion will be a better remedy, will become available to the Applicant at the conclusion of the proceedings. It is in the discretion of the court to grant or refuse a stay but what has to be judged in every case is whether there are or not particular circumstances in the case to make an order staying execution. It has been said that the court as a general rule ought to exercise its best discretion in a way so as not to prevent the appeal, if successful from being nugatory…” 11.It follows therefore that, in order to succeed in an application for stay of execution or proceedings pending appeal, an Applicant must demonstrate; (a)That the application has been brought without undue delay (b)That substantial loss may result unless the order of stay is issued, and (c)The Applicant must give security for the due performance of any decree or order that may ultimately be found to be binding on the Applicant 12.The 1st Respondent has argued that the orders being sought after are negative orders that cannot be enforced whereas the Applicant has argued that the stay is on the execution of the decree which is a money decree hence capable of being stayed.In this case while the trial court’s judgement of 31st July 2025 is a negative order that reads ‘the Plaintifff has failed to prove his case and is hereby dismissed against the defendant with costs to the 1st Defendant’’, the Respondent later extracted a decree with the order for payment of costs that had been ascertained in the sum of Ksh 89,900/=which makes it an executable order and I would agree with the Applicant submissions that there is definitely an order that can be stayed in this case. In Western College of Arts and Applied Sciences -Vs- EP Oranga & 3 others [1976] KECA 15 (KLR) the Court of Appeal stated thus:-“But what is there to be executed under the judgment, the subject of the intended appeal? The High Court has merely dismissed the suit, with costs. Any execution can only be in respect of costs. In Wilson v Church the High Court had ordered the trustees of a fund to make a payment out of that fund. In the instant case, the High Court has not ordered any of the parties to do anything, or to refrain from doing anything, or to pay any sum. There is nothing arising out of the High Court judgment for this Court, in an application for a stay, it is so ordered. 13.It is trite that stay of execution cannot be ordered against negative Orders but in this case, there is an order for payment hence an action that can be refrained 14.Moving on to the merits of the application the consideration will be on the based on what has already been established as in the above cited cases which is prove of substantial loss, application filed without delay and provision for security for due performance of a decree. 15.The Applicant has indicated that he will suffer loss if the decretal amount is paid out the Respondent having failed to establish that he can pay the amount.The only way of showing or establishing substantial loss is by showing that if the decretal sum is paid to the 1st Respondent that if execution is carried out, in the event the appeal succeeds the Respondent would not be in a position to pay - reimbursement as he/it is a person of no means. Here the Applicant has merely alluded in his submissions and not established how indeed the Respondent will not be able to reimburse in the event the appeal succeeds.I am be guided by a number of decisions by the court touching on the same, one such case will be the case of Kenya Shell Limited -Vs- Benjamin Karuga Kibiru & another [1986] eKLR where the court pronounced itself as follows;‘’It is not sufficient by merely stating that the sum of Kshs. 20.380.00 is a lot of money and the Applicant would suffer loss if the money is paid. What sort of loss would this be? In an application of this nature, the Applicant should show the damages it would suffer if the order for stay is not granted. By granting a stay would mean that status quo should remain as it were before judgment. What assurance can there be of the appeal succeeding? On the other hand. granting the stay would be denying a successful litigant of the fruits of his judgment. The Applicant has not given to court sufficient materials to enable it to exercise its discretion in granting the order of stay. 16.On the issue of security for due performance of a decree, in any event the issue of deposit of security for due performance of decree is not a matter of willingness by the Applicant but for the Court to determine. This provision is to ensure that Courts do not assist litigants to delay execution of decrees through filing vexatious and frivolous appeals. I hold that the second condition has equally not been met. 17.Having failed to meet the 1st two condition the issue of the application being filed within reasonable time is of insignificance. 18.I hold that the Applicant has failed to meet the conditions necessary for issuance of stay pending appealFinal dispositionThe upshot of the above, I make the following order;i.The Application dated 28th January 2026 is hereby dismissed for want of merit.ii.Costs to the 1st Respondent.It is so ordered. DATED, SIGNED and DELIVERED virtually at NAIROBI on this 13th day of July 2026.MOHAMMED N. KULLOWJUDGERuling delivered in the presence of: -N/A for the Appellant/ApplicantN/A for the RespondentMs. Mwangi Court Assistant