https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4173

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT KAKAMEGA** **ELC CASE APPEAL NO. E029 OF 2026** **GAITANO LIBUTSA MUKOFU………………………..APPELLANT** **VERSUS** **SYLVANUS KHAYUMBI AKHANALA…………….RESPONDENT** **RULING** **Introduction** 1. Before court is a Notice of motion dated 10th April 2026 filed by the appellant seeking orders that there be stay of execution of the judgment delivered in Kakamega Chief Magistrates Court ELC Case Number E004 OF 2021 delivered on 2nd April 2026, pending hearing and determination of the appeal herein. 2. The application is supported by the annexed affidavit of the applicant. The applicant’s case is that the lower court ordered deregistration of the appellant’s name from title for parcel No. Isukha/Mukhonje/1751 (suit property) and ordered the appellant to pay mortuary fees of Kshs. 1000/= per a day. 3. That if stay is not granted, the appellant stands to suffer substantial loss as the Land Registrar is likely to delete his name from the register in respect of the suit property. That the appeal is arguable with high chances of success. He attached the judgment made by the lower court. 4. The application was opposed. The respondent swore a replying affidavit dated 12th May 2026. He stated that the supporting affidavit is full of falsehoods. That judgment from the lower court ordered the appellant to make payment of Kshs. 1, 000/= per a day and no payments have been made. That the appellant has not met the threshold for grant of stay pending appeal and no substantial loss will be suffered by the appellant. That the appellants ought to deposit security for costs. That the application was incompetent and bad in law. 5. Parties were directed to file submissions in regard to the application, On record are submissions filed by the respondent dated 14th May 2026; which the court has duly considered. **Analysis and determination.** 1. The court has carefully considered the application, response thereto and submissions. The only issue that arise for the court’s determination is whether the applicant has met the threshold for grant of orders of stay of execution pending appeal. 2. 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.”** | | | 1. Impending execution alone cannot be the basis for grant of stay of execution pending appeal, since execution is a lawful process pursuant to grant of an order, judgment or decree by a court. (See **James Wangalwa & Another vs. Agnes Naliaka Cheseto [2012] eKLR).** To obtains stay pending appeal, the applicant ought to demonstrate substantial loss; moving the court without unreasonable delay and willingness to provide security for the due performance of the decree that may issue against them. 2. In **Tropical Commodities Suppliers Ltd & Others vs. International Credit Bank Ltd (in liquidation) [2004] 2 EA 331** the court discussed 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.”** 1. In the instant matter, the applicant stated that if stay is not granted, he will suffer substantial loss as his name will be removed from the title to the suit property and that his appeal which has high chances of success will be rendered nugatory. The court has considered the judgment and the appeal and it is satisfied that the appeal raises triable issues. The case herein although is a claim for land, the same has been framed by the parties to appear as though it is a burial dispute. 2. This court appreciates and takes judicial notice of the importance placed by communities within this jurisdiction on their dead as well as burial sites. And for that reason, the court is persuaded that the dismissal of the appellant’s case has serious ramifications on burial rites in respect of the deceased herein. For that reason, I am convinced that the appellant deserves orders of stay of execution. 3. In the premises, I find and hold that the application dated 10th April 2026 is merited. As the suit involves burial of a deceased person whose body is still preserved at a morgue, I limit the stay herein to six months. In the premises, I grant stay of execution of the Judgment delivered on 2nd April 2026 in Kakamega CMC ELC CASE NO. E004 OF 2021, for a period of six months. 4. It is so ordered. **DATED, SIGNED AND DELIVERED AT KAKAMEGA IN OPEN COURT/VIRTUALLY THROUGH MICROSOFT TEAMS VIDEO CONFERENCING PLATFORM THIS 1ST DAY OF JULY, 2026** 1. **NYUKURI** **JUDGE** **In the presence of;** Mr. Mbaka for the appellant No appearance for the respondent Court Assistant: Delphine