https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3016

Maciazinex Africa Company Limited v Mugo & 2 others (Environment and Land Case 440 of 2014) [2026] KEELC 3016 (KLR) (14 May 2026) (Ruling) Neutral citation: [2026] KEELC 3016 (KLR) Republic of Kenya In the Environment and Land Court at Nyeri Environment and Land Case 440 of 2014 EK Makori, J May 14, 2026 Between Maciazinex Africa Company Limited Plaintiff and Michael Mugo 1st Defendant David Githambo 2nd Defendant Kenya Farmers Association Ltd 3rd Defendant Ruling 1.Before the court is the application filed by the Applicant, who was the 3rd Defendant in this suit, under Notice of Motion dated 15th October 2025, seeking that the Court grant the prayer in their Notice of Motion dated 28th January 2025, pending the hearing of that application inter partes. The said application, dated 28th January 2025, sought the following orders:a.Spent.b.THAT this Honorable Court be pleased to stay execution of the judgment and decree issued herein on the 20th of December 2024 pending the hearing and determination of this Application inter partes.c.THAT this Honorable Court be pleased to stay execution of the judgment and decree issued herein on the 20th of December 2024 pending the hearing and determination of the intended appeal.d.THAT the costs of the application be provided for. 2.The application is supported by the affidavit of David T. Naeku, the Company Secretary of the 3rd Defendant/Applicant. He deposed that the Court delivered judgment in favor of the plaintiff herein on 20th December 2024, which inter alia ordered the defendants to vacate the suit land within 30 days or be evicted. 3.Aggrieved with the decision of the Court, the Applicant appealed against the said decision. 4.That even before the 30 days given by the Court had lapsed, the Plaintiff had begun threatening them and had approached the police, seeking their assistance to evict them from the suit land. 5.The Applicant is apprehensive that unless execution is stayed, the 1st and 2nd Defendants, who are currently in occupation of the suit property as the 3rd Defendant/Applicant’s tenants, will be forcibly evicted, the developments on the suit land destroyed and disposed of to third parties. 6.Further, the appeal raises arguable points of law, and they annexed their draft Memorandum of Appeal to the supporting affidavit. The Respondent’s Replying Affidavit 7.Joseph Machira Mugweru, a Director of the Respondent company that was the Plaintiff in the suit, swore an affidavit in response to the instant application on the 4th of November 2025. 8.He deposed that the Applicant has not sufficiently demonstrated the substantial loss that they will incur due to the execution of costs that cannot be recovered by way of damages if the intended appeal succeeds. 9.That he is well able to refund the same if the Applicant’s appeal succeeds, and that the Applicant has shown no justifiable reason to keep him away from the fruits of his judgment. 10.Further, he deposed that the aforesaid application has been made after an unreasonable delay. The Applicant’s Further Affidavit. 11.The Applicant swore a further affidavit on the 21st of October 2025, and deposed that he has been informed that during the pendency of this application, the Plaintiff took possession of the suit premises. 12.The Court had ordered them to pay costs to the Plaintiff taxed at the sum of Kshs.360,155/=, which is yet to be executed. He deposed that the decree is only partially satisfied and can be stayed. 13.That the 3rd Defendant is facing cash flow financial challenges and is unable to pay the taxed sum, and is doubtful that the Plaintiff will refund the same if the appeal is successful. The Applicant’s submissions 14.The Applicant filed written submissions in support of their application, and relied on the provisions of Order 42, Rule 6 of the Civil Procedure Rules. Counsel also relied on the holding in the case of James Wangalwa & another vs Agnes Naliaka Cheseto(2012)KEHC 1094 KLR. 15.Counsel submitted that the application has been made timeously; the application was made on 30th January 2024, while the judgment was delivered on 20th December 2024. 16.On substantial loss, Counsel submitted that since the Plaintiff has taken possession of the premises, the decree is partially executed. The Court granted costs to the Plaintiff, and the party and party costs have been taxed at Kshs. 360,155/= 17.The Plaintiff has applied for execution through attachment and sale of the 3rd Defendant’s movable goods, but the warrants are yet to be issued. As they have deposed in their further affidavit, they are facing cash flow challenges and cannot raise the amount taxed as costs; the Applicant submits that they will suffer substantial loss. 18.On security, the 3rd Defendant has deposed that they are ready and willing to comply with any conditions that the Court may grant for the orders prayed for. The Respondents’ written submissions 19.Counsel for the Respondent submitted that the Applicant took no immediate steps to stay the judgment when it was delivered on 20.12.2024 if they were indeed aggrieved with the same. 20.That by the time they had filed their application for stay, the same was already overtaken by events, and they had already yielded vacant possession of the suit land to the Plaintiff, who is now undertaking developments. 21.They also submit that the Applicant has failed to offer any justifiable reasons for the delay, and it is their submission that the instant applications should be dismissed. 22.Secondly, it is their submission that under Order 42, Rule 6 of the Civil Procedure Rules, one must prove that they will suffer a substantial loss that is not recoverable by way of damages, and submit that the Applicant has not placed any documentary evidence to show what loss would be occasioned to them if they pay the required costs. On this point, they relied on the following authorities:a.Patrick Mutua & another v Mutua Nyamai (2018) eKLRb.Machira T/A Machira & Co. Advocates v East African Standard (2002) KEHC1167(KLR) 23.Counsel concluded that, given that the judgment of December 20, 2024, has already been partly executed and that what remains is the execution of the taxed costs, it is their submission that the taxed costs can be refunded if the appeal succeeds, and prayed that the instant application be dismissed with costs to them. Analysis and Determination 24.The Applicant herein seeks an order of stay of execution of the judgment of this Court that was delivered on the 20th of December 2024. Stay pending appeal is provided for by Order 42 Rule 6 of the Civil Procedure Rules, which provides that:“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 the application being made, to consider such application and to make such order thereon as may to it seems 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.” 25.The purpose of stay orders is to preserve the subject matter of the appeal so as not to render the appeal nugatory. As was emphasized in the case of RWW v EKW (2019) eKLR, the Court held that the purpose of an application for stay of execution pending an appeal is to preserve the subject matter in dispute so that the rights of the appellant who is exercising the undoubted right of appeal are safeguarded. The appeal, if successful, is not rendered nugatory. 26.It was observed in Patrick Mutua & another v Mutua Nyamai [2018] KEHC 9762 (KLR), relied upon by the Respondent, that the following decision was quoted on applications for stay pending appeal:“In Vishram Ravji Halai vs. Thornton & Turpin Civil Application No. Nai. 15 of 1990 [1990] KLR 365, the Court of Appeal held that whereas the Court of Appeal’s power to grant a stay pending appeal is unfettered, the High Court’s jurisdiction to do so under Order 41 rule 6 of the Civil Procedure Rules is fettered by three conditions namely, establishment of a sufficient cause, satisfaction of substantial loss and the furnishing of security.” 27.I note that in this case, the decree has already been partially satisfied, as by the admission of both parties, the Plaintiff has already taken possession of the suit property, as the defendants were ordered by the Court to vacate and yield vacant possession of the suit land. Thus, what remains is payment of the taxed costs by the 3rd Defendant. 28.The Court in James Wangalwa & Another vs. Agnes Naliaka Cheseto [2012] eKLR cited by the Applicant found that the mere threat of execution does not necessarily amount to substantial loss. The Court found that:“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.” 29.In the present case, the Applicant has not demonstrated what substantial loss will occur to them if the Plaintiff proceeds to execute the taxed sum in party and party costs. The Plaintiff/Respondent has stated that they can refund the sum if the intended appeal succeeds, and that payment of the taxed costs will not render the appeal nugatory. 30.Regarding whether the application was made without unreasonable delay, the trial court's judgment was delivered on December 20, 2024, while the instant application for a stay of execution is dated October 15, 2025, only 3 months shy of a year since the judgment was delivered. In my view, this constitutes an unreasonable delay for a litigant. If the applicant intended to file an application for a stay of the court's judgment, they would have done so sooner. 31.Consequently, the instant application is without merit and is hereby dismissed with costs. RULING DATED, SIGNED, AND DELIVERED AT NYERI THIS 14TH DAY OF MAY 2026.____________________________E. K. MAKORIJUDGEIn the presence of:Mr. Ratemo for the ApplicantMr.Nderi for the RespondentKendi: Court Assistant