https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4740

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT KITALE** **ELC CASE NO. E001 OF 2025** **ISAAC MACHESO MABONGA** ***(The recognised agent of the approved agent of*** **JOSHUA MABONGA MACHESO)--------------PLAINTIFF/APPLICANT** **VERSUS** **ISAAC WAFULA SIMIYU---------------1ST DEFENDANT/RESPONDENT** **EDWARD MAKHOHA SIMIYU-----2ND DEFENDANT/RESPONDENT** **AND** **THE MANAGEMENT COMMITTEE WEOINA** **FARMERS CO-OPERATIVE SOCIETY LTD-----1ST INTERESTED PARTY** ***(Represented by the Chairperson, Secretary and Treasurer)*** **THE COUNTY LAND REGISTRAR-------------2ND INTERESTED PARTY** **THE ATTORNEY GENERAL----------------------3RD INTERESTED PARTY** **RULING** 1. In the application dated **25/5/2026**, the applicant sought, *inter* *alia*, to stay the execution of the judgment delivered on **15/4/2026** pending the appeal. The applicant also prayed for costs of the application. 2. The grounds as set out on the face of the application are that: the applicant had sued the respondents, seeking to be declared the owner of parcel **L.R. No. Saboti/Sikhendu Block8/Weoina/41** *(hereinafter referred to as the suit land).* Instead, the court awarded the suit land to the respondents. Subsequently, the applicant was given **2** months within which to surrender the title deed to the suit land to the Land Registrar. The Land Registrar would cancel it and register it in the name of the 1st respondent. In default of the orders, the transfer documents would be signed by the Deputy Registrar of the court. 3. The applicant contends that he has since filed an appeal and that unless the orders sought are granted, he stands to suffer untold loss and irreparable harm, despite having filed the application without delay. 4. The applicant avers that the respondents shall not suffer any prejudice if the orders are granted as sought. 5. The application is supported by an affidavit sworn by the applicant on even date setting out the facts giving rise to the same, mainly that, the applicant has since lodged a notice of appeal annexed and marked **IMM-1.** The applicant further deposes that he has also sought typed proceedings and judgment of the lower court vide a letter annexed as **IMM-2.** 6. The applicant states that the intended appeal raises pertinent issues. Copies of the draft memorandum of appeal and decree are annexed and marked **IMM-3.** 7. Further, the applicant deposes that in the interest of justice and fairness, the application should be allowed and the orders granted. 8. The respondents oppose the application through a replying affidavit sworn by the 1st respondent, on his own behalf and on behalf of the 2nd respondent. 9. The respondents contend that the application is misconceived, incompetent, lacks merit and is an abuse of the court process. 10. Further, the respondents depose that the court allowed their counterclaim and issued a stay for **30** days, where it declared that the suit land was subject to their overriding interests. 11. The respondents contend that the applicant, by way of evidence or particulars, has not demonstrated the substantial loss which he stands to suffer if the decree is implemented. 12. In addition, the respondents aver that the notice of appeal was lodged on **22/4/2026** while this application was filed on **25/5/2026**, which delay is not explained by the applicant. The respondents aver that the delay defeats the basis to warrant the interim orders. 13. The respondents contend that the applicant has failed to offer security for the due performance of the decree, which is fatal to the application. Again, the respondents state that the intended appeal is not arguable and is not likely to be rendered nugatory if the interim orders are denied. 14. The respondents depose that they should be allowed to enjoy the fruits of their judgment as the successful litigants, without delay. Further, the respondents aver that the applicant has not established sufficient cause to warrant exercise of the court's discretion in his favour. 15. The application was canvassed by way of written submissions. The applicant filed written submissions dated **22/5/2026**. The applicant submits that he has already filed an appeal with a high chance of success and stands to suffer irreparable loss if the respondents bury their deceased mother on the suit land. 16. The applicant also submits that he is ready and willing to comply with orders that the court may impose in granting the stay orders. Further, the applicant submits on the sole issue for determination that he is entitled to the orders sought, which is his constitutional right. 17. The respondents, on their part, rely on written submissions dated **6/7/2026**. On whether the applicant has met the threshold under **Order 42 Rule 6** of the Civil Procedure Rules, the respondents submit that the applicant has not met the set principles to warrant a stay of execution as held in ***Jaber Mohsen Ali & another -vs- Priscillah Boit & another [2014] KEELC 132 (KLR).*** 18. The respondents submit that the applicant must demonstrate the three elements of substantial loss; that the application was filed without unreasonable delay and that he has offered security for the due performance of the decree. 19. Additionally, the respondents submit that there is a need to balance the rights of both parties, which proposition was held in ***Reliance Bank Ltd -vs- Norlake Investments Ltd [2002] 1 EA 227.*** 20. The respondents also relied on the court's holding in ***Kipsang Chepkwony -vs- David Kiptoo Cheluget & Another [2014] KEELC 484 (KLR),*** that substantial loss is the cornerstone of a stay application pending appeal and an application will fail in its absence. 21. Regarding whether the applicant is entitled to the orders sought, the respondent relied on ***Antoine Ndiaye -vs- African Virtual University [2015] KEHC 6783 (KLR),*** to submit that a stay pending appeal is discretionary, which discretion must be exercised judicially and where sufficient cause has been shown. 22. On costs, the respondents submit that **Section 27** of the Civil Procedure Act provides that costs follow the event, unless the court, for good reasons, orders otherwise. The respondents pray that the application be dismissed with costs. 23. I have considered the application, the rival affidavits on record as well as the applicable law. I have equally considered the submissions by counsel on record. I am most grateful for the same. The prerequisite conditions that a party must establish for the court to order a stay of execution are provided under **Order 42 Rule 6(2)** Civil Procedure Rules. 24. An applicant must demonstrate and satisfy the court that substantial loss may result unless the order is granted; show that the application has been made without unreasonable delay; and provide such security for the due performance of such decree or order as may ultimately be binding on him. 25. In the instant application, the judgment was delivered on **15/4/2026,** while this application was filed on **25/5/2026**; this is a delay of over a month, which the applicant has not explained. Of course, what amounts to an unreasonable delay is assessed on a case by case basis as long as an explanation is offered. 26. The other consideration to be had is whether substantial loss would result if stay of execution is not granted. In the case of ***James Wangalwa & Another -vs- Agnes Naliaka Cheseto [2012] eKLR***, the court held that execution does not, in itself amount to substantial loss since execution is a lawful process. The applicant must establish other factors showing 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. Substantial loss, therefore, boils down to what has to be prevented by preserving the status quo, because such loss would render the appeal nugatory. 27. In this application, other than stating that he stands to suffer irreparably, the applicant has not demonstrated how execution of a lawful decree amounts to substantial loss. Mere assertion or apprehension does not amount to substantial loss. The loss must be real and apparent. A title deed, for example, can always be cancelled by the court and be registered afresh should the appellate court find in favour of the applicant. 28. Regarding security, the applicant has not offered any for the due performance of the decree. However, this in itself is not fatal because the court on its own motion can impose conditions, including depositing security for costs. 29. A right of appeal must be balanced against an equally weighty right of the plaintiff to enjoy the fruits of a judgment delivered in his favour. In ***Samvir Trustee Limited -vs- Guardian Bank Limited [2007] eKLR****,* the court held that, in considering whether to grant or refuse an application for stay, a court should establish whether there exist any special circumstances to sway its discretion. 30. The yardstick is for the court to balance or weigh the scales of justice, by ensuring that an appeal is not rendered nugatory, while at the same time, ensuring that a successful party is not impeded from enjoying the fruits of his judgment 31. From the foregoing, I am not persuaded that the applicant has fully satisfied the conditions set out by the law for consideration in granting or refusing a stay of execution pending appeal. I am thus unable to exercise the court’s discretion in the applicant’s favour. The upshot is that the application dated **25/5/2026** is hereby dismissed with costs to the respondents. 32. Orders accordingly, **Ruling dated, signed,** and **delivered** via **Microsoft Teams/Open Court** at **Kitale** on this **24th** day of **July 2026.** **In the presence of:** Court Assistant - Matui/Nancy Mr. Bororio for the applicant Ms. Keya for the respondent  **HON. G.M. GITONGA** **JUDGE, ELC KITALE.**