Marwa v Mahegere & 5 others (Environment and Land Case 380 of 2017) [2026] KEELC 4370 (KLR) (8 July 2026) (Ruling)

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT MIGORI** **ELC CASE NO. 380 OF 2017** **DR. JOEL MAKENGE MARWA....................PLAINTIFF/RESPONDENT** **-VERSUS-** **DINA MAHEGERE..................................IST DEFENDANT/APPLICANT** **DAVID MAHEGERE .............................2ND DEFENDANT/ APPLICANT** **MATINDE JAMES MWITA ...................3RD DEFENDANT/ APPLICANT** **NCHAMA SIMEON MAHEGERE ...........4TH DEFENDANT/ APPLICANT** **ROBI JAMES........................................5TH DEFENDANT/APPLICANT** **JAMES MWITA MAHEGERE.................6TH DEFENDANT/ APPLICANT** **RULING** **(On whether the applicants should be granted stay of execution pending appeal)** **The Application** 1. The applicants filed a Notice of Motion under a certificate of urgency on 12th March 2026. It was brought under Order 42 Rule 6 of the Civil Procedure Rules, Sections 1A, 1B and 3A of the Civil Procedure Act (and what the applicants state as “all other enabling provisions of the law’’). They sought the following ORDERS: 2. **…Spent.** 3. **That this Honourable Court be pleased to grant an interim order of stay of execution of the Judgment delivered on 19th October 2022 and all consequential orders including eviction orders pending the hearing and determination of this application.** 4. **That this Honourable Court be pleased to grant an order of stay of execution of the Judgment delivered on 19th October 202 and the eviction orders issued pursuant to the Plaintiff/Respondent's application dated 10th December 2025 pending the hearing and determination of the Appeal.** 5. **That the costs of this application be provided for.** 6. The application is supported by the grounds set out on its face as well as the grounds contained in the affidavit deponed by **Dina Mahegere,** the 1st applicant herein. The applicants stated that the court delivered a judgment on 19th October 2022. They maintained that they were never represented in the proceedings that culminated in the judgment of the court owing to the negligence of their then counsel on record. Aggrieved by the decision of the court, they filed an application seeking to set aside the judgment of the court, but the same was not successful since the court found that they were represented at the hearing. The application was dismissed on 1st August 2025. They maintained that they were never informed about the ruling date of the latter application, and only came to learn about the said ruling after they were served with a taxation notice dated 29th October 2025. 7. The applicants stated that they successfully applied for leave to appeal out time vide Kisumu Court of Appeal Civil Application No. E150 of 2026 and their application was allowed on 2nd February 2026. They also added that they acted swiftly and served the Respondent with a Notice of Appeal on 3rd February 2026, and filed the said Notice on 5th February 2026. Moreover, the applicants also stated that they are keen on pursuing the appeal and as at the time of filing this application, they had already obtained typed proceedings and were in the process of preparing a record of appeal. 8. Despite the foregoing, the applicants maintain the respondent has taken significant steps in the implementation of the judgment of the court and as such, they risk eviction, should the stay of execution that they seek from this court be denied. They stated they would suffer substantial loss should the eviction be carried out. They also maintained that their appeal has high chances of success and that their application for stay of execution has been brought timeously and in good faith. 9. The following documents were annexed to the supporting affidavit deponed by the 1st applicant: a copy of authority to plead authorizing the 1st applicant to plead on behalf of the other applicants, a copy of taxation notice dated 29th October 2025; a copy of the court of appeal ruling granting the applicants leave to appeal out time; a copy of a notice of appeal dated 3rd February 2026 and a draft Memorandum of Appeal. 10. The application was opposed by the respondent who filed a ground of opposition dated 13th April 2026. He opposed the application on two grounds, namely: that the Application is an abuse of the process of the court as it is being filed with a view to forestall the respondent's application dated 10th December 2025; and that the application defeats the principle of first come first served as it was filed when already a ruling of the respondent's application was pending. **The Parties’ Submissions** 1. The application was canvassed by way of written submissions. The applicants filed theirs dated 8th April 2026. They identified one main issue for determination, being, whether the applicants have satisfied the legal requirements for grant of stay of execution pending appeal. 2. The applicants relied on Order 42 Rule 6 of the Civil Procedure Rules 2010 to highlight the considerations that should be borne by the court before when determining whether or not to grant stay of execution pending appeal. These considerations are: whether the applicant would suffer substantial loss should the stay not be granted; whether the application for stay was made without unreasonable delay and whether the applicant has provided such security as ordered by the court for the due performance of the decree. 3. Reliance was placed on the Court of Appeal decision in **Butt v Rent Restriction Tribunal [1982] KLR 417** as well as **RWW v EKW [2019] eKLR** where the courts emphasized that the power to grant an order of stay of execution pending appeal is discretionary. However, such discretion should be exercised so as preserve an appeal and ensure that the intended appeal is not rendered nugatory. 4. On the question of substantial loss, reference was made to the case of **Kenya Shell Limited v Kibiru & another [1986] KLR 410** to submit that substantial loss means that loss that would render the appeal nugatory. They further relied on **Mukuma v Abuoga [1988] KLR 645** to submit the substantial loss is one that cannot be remedied by way of damages. In an effort to demonstrate that they would suffer substantial loss should the respondent carry on with the ensuing eviction, the applicants submitted that they reside on the suit land, which also provides them with livelihood. As such, they submitted that evicting them from the suit land would render them homeless and landless besides occasioning destruction to their homes and property. 5. As to whether the application was filed without unreasonable delay, the applicants submitted that their application seeking stay of execution pending appeal was filed without delay. They highlighted that the impugned judgment was rendered on 19th October 2022 and their application seeking to set aside the said judgment was rendered on 1st August 2025. However, they submitted that they remained in the dark concerning the ruling of the court dated 1st August 2025 until they were served with a taxation notice dated 6th November 2025. They also submitted that court of appeal granted them leave to appeal out of time on 2nd February 2026 and served upon the respondent a notice of appeal on 3rd February 2026. It was also submitted that the respondents were supplied with typed proceedings on 10th March 2026. They stated that they had not yet been issued with a decree and a certified copy of the judgment since the file was in chambers and the judge was in recess as at time of filing these submissions. 6. Concerning whether their intended appeal is arguable, the applicants submitted that their appeal raises arguable issues and that the same is not frivolous. They also added that the fact of the court of appeal granting them leave to appeal out of time meant that their appeal is worthy of being considered. 7. As to whether the intended appeal would be rendered nugatory, the applicants relied on Butt v Rent Restriction Tribunal (supra) to urge the court to consider preserving the substratum of the appeal since eviction would render their appeal nugatory. They maintained that stay of execution is usually granted where an appeal is likely to be rendered nugatory. They further submitted that it would be impossible or extremely difficult to restore them to possession should their appeal succeed. 8. On the issue of security, the applicants relied on **Halai & Another –v- Thornton & Turpin Ltd [1990] KLR 365** to submit that security acts as a guarantee for the due performance of a decree should the appeal not be successful. However, they stated that the instant matter is a land matter hence emotive. 9. Lastly, the applicants submitted that the ends of justice favour the grant of the orders sought in their application. they maintained that they were condemned unheard and urged this court to preserve the subject matter so that the appeal is not rendered futile. 10. The respondent filed his submissions dated 13th April 2026. He highlighted the principles governing the grant of stay of execution orders, which include, the applicant having an arguable appeal and a consideration of whether denial of the orders would render the applicant’s appeal nugatory. He also added a third dimension pursuant to the decision of the High Court in Civil Case No. 6726 of 1991 (*sic*), that is, whether there is a sufficient cause to grant the order of stay of execution pending appeal. 11. On the question if sufficient cause, the respondent submitted that there is no sufficient cause to warrant the grant of stay of execution orders pending appeal since an appeal does not operate as an automatic stay of execution. He relied on order 42 rule 6 of the civil procedure rules to buttress this argument. He also stated that he is the registered owner of the suit property and wondered how a party who does not hold title to the said property would be found to have established a sufficient case merely by the fact of filing an appeal. 12. Concerning the issue of substantial loss, the respondent equally submitted that the applicants had demonstrated any loss that they would suffer should the stay orders not be granted. He submitted that there was no evidence of occupation of the suit property by the applicants for fifty (50) years as alleged. He also submitted that the applicants had not provided any valuation reports or any other evidence that would prove the existence of the houses they alleged to have constructed on the suit property. additionally, the respondent submitted that the applicants had not contended that he would waste the suit land or dispose it to 3rd parties should the stay orders not be granted. Besides, he also stated that the court could not assume that the applicant would suffer substantial loss when the said loss had neither been shown nor quantified. 13. As to whether there was unreasonable delay in filing the stay of execution application, the respondent submitted that the applicants did not explain why they delayed in filing the application. He submitted that that the ruling that applicants seek to appeal against was delivered on 1st August 2025 and that they were served with taxation notice dated 27th November 2025 and whose service they actually acknowledged. 14. Finally, on the issue of security for costs, the respondent submitted that the applicants had not proposed what they would be willing to offer as security for costs. He submitted that best security in the act of the applicants vacating the suit land pending the hearing determination of the appeal. Reliance was placed on the case of **FK Kiongo c VPN Mukubwa & another, Civil Appeal No. 63 of 1988** to support the position that a successful party should not be denied the fruits of his or her success. Moreover, the respondent also contended that the applicants had neither demonstrated that they had no other place to move to nor that he would waste or dispose the suit land. **Issues, Analysis and Determination** 1. After considering the application, the response thereto and the submissions of the parties and law, the court has identified the following issues for determination: 2. Whether the applicants’ application has met the threshold for grant of stay of execution pending appeal; and 3. Who should bear the costs of the application 4. **Order 42 Rule 6** of the **Civil Procedure Rules** provides for stay of execution pending appeal. The relevant sections of the said order have been reproduced hereunder: 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 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; 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. *........* 2. *For the purposes of this rule an appeal to the Court of Appeal shall be deemed to have been filed when under the Rules of that Court notice of appeal has been given.’’* 1. **Order 22 Rule 22 of the Civil Procedure Rules** also provides for stay of execution in the following terms: 1. *The court to which a decree has been sent for execution shall, upon sufficient cause being shown, stay the execution of such decree for a reasonable time to enable the judgment debtor to apply to the court by which the decree was passed, or to any court having appellate jurisdiction in respect of the decree or the execution thereof, for an order to stay the execution, or for any other order relating to the decree or execution which might have been made by the court of first instance, or appellate court if execution has been issued thereby, or if application for execution has been made thereto.* 2. *Where the property or person of the judgment-debtor has been seized under an execution, the court which issued the execution may order the restitution of such property or the discharge of such person pending the results of the application.* 3. *Before making an order to stay execution or for the restitution of property or the discharge of the judgment-debtor the court may require such security from, or impose such conditions upon, the judgment-debtor as it thinks it.”* 2. Numerous precedents have also addressed the issue of stay of execution pending appeal. Notably, courts have determined that stay of execution pending appeal is granted at the discretion of the court. however, such discretion should be exercised judiciously so as to preserve the subject matter of the appeal such that the appeal is not rendered nugatory. At the same time, courts are also called upon the balance the interests of the parties so that a successful party is not deprived of the fruits of his or her successful litigation. the court of appeal in the case of **Butt v Rent Restriction Tribunal, (Nairobi) Civil Application no. 6 of 1979** (as per Madan, JA), determined that: *‘‘...If there is no other overwhelming hindrance, a stay ought to be granted so that an appeal, if successful, may not be nugatory. 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...’’* 1. In **RWW v EKW High Court (Nairobi) Civil Suit No. 25 of 2012**, the court held reasoned that: *‘‘8. 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 and the appeal if successful, is not rendered nugatory. However, in doing so, the court should weigh this right against the success of a litigant who should not be deprived of the fruits of his/her judgment. The court is also called upon to ensure that no party suffers prejudice that cannot be compensated by an award of costs.* *9. Indeed to grant or refuse an application for stay of execution pending appeal is discretionary. The Court when granting the stay however, must balance the interests of the Appellant with those of the Respondent. In that regard what is at stake in this cause is that if the stay herein is not granted the Respondent would be at liberty to sell the immovable property and the proceeds thereof distributed or distribute the property 50:50.’’* 1. The court has carefully considered the application, the response and the submissions of parties. The applicants stated that they have preferred an appeal after being dissatisfied with the ruling of this court. They are apprehensive that, unless stay of execution is granted, they respondent will evict them from the suit property, and their appeal, if successful would be rendered nugatory. 2. The respondent on the other hand faulted the applicants for filing this application before this court and stated that the same should have been filed before the court appeal. He also stated that the application has not met the threshold for grant of stay of execution pending appeal. Specifically, the respondent submitted that the applicants had not demonstrated a sufficient cause for the grant of the stay orders and that they had not demonstrated that they would suffer substantial loss should the stay be denied. 3. Whereas the respondent faulted the applicants for filing the application before this court, Order 42 Rule 6 (1) as well as Order 22 Rule 22 (1) require that such an application be filed before the court the applicant is appealing from or the court before which the decree has been sent for execution. As such, the instant application was filed in the correct court or the court with jurisdiction. 4. As to whether the applicants have met the threshold for grant of stay of execution pending appeal, the court must assess whether the applicant have met the conditions set out in Order 42 Rule 6(2) of the Civil Procedure Rules. Accordingly, the applicants must demonstrate that they would suffer substantial loss if stay is not granted and their appeal succeeds. The application must have been filed without delay and the applicants should be willing to abide by the terms of security for due performance of the decree as ordered by the court. 5. The issue of substantial was discussed at length in **James Wangalwa & another v Agnes Naliaka Cheseto, High Court (Bungoma) Miscellaneous Application No. 42 of 2011** where the court held that: *‘‘11. 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, a question that was aptly discussed in the case of* ***Silverstein N. Chesoni [2002] 1KLR 867,*** *and also in the case of* ***Mukuma V Abuoga*** *quoted above. The* *last case, referring to the exercise of discretion by the High Court and the Court of Appeal in the granting stay of execution, under Order 42 of the CPR and Rule 5(2) (b) of the Court of Appeal Rules, respectively, emphasized the centrality of substantial loss thus:* ***“…the issue of substantial loss is the cornerstone of both jurisdictions. Substantial loss is what has to be prevented by preserving the status quo because such loss would render the appeal nugatory.”*** *With this observation, of course, a frivolous appeal cannot in practical terms be rendered nugatory. The only admonition however, is that the High Court should not base the exercise of its discretion under order 42 Rule 6of the CPR only on the chances of the success of the appeal. Much more is needed in accordance with the test I have set out above.’’* 1. The applicants have already filed an appeal before the Court of Appeal. They submitted that their appeal would be rendered nugatory should the respondent evict them from the suit land pending the said appeal. They also submitted that they would lose their homes, developments on the suit land as well as their livelihoods as a consequence of the impending eviction. 2. The respondent on his part submitted that there was no evidence that the applicants had developed the suit land as alleged. He equally submitted that, the applicants had not stated that he would destroy or dispose of the suit land should he gain possession thereof. 3. The court has considered the respective clashing positions of both parties and is convinced that the applicants will suffer substantial loss if evicted from their present place of occupation and their appeal ultimately succeeds. Should their homes be destroyed, as was submitted, in my view they will have lost their homes and livelihoods, which may not be intact after the respondents takes possession thereof. Thus, the applicants have satisfied the first limb. 4. As to whether the application was filed without unreasonable delay, the respondent submitted that the judgment of the court was rendered in 2022 whereas the ruling of the court which the applicants seek to appeal against was delivered on 1st August 2025. Moreover, the applicants stated that they were served with a Taxation Notice dated 27th November 2025 but never acted until this application was filed on 12th March 2026. The applicants submitted that they were not aware of the ruling of the court. Even then the applicants have demonstrated that they filed a Notice of Appeal only a day immediately after the Court of Appeal granted them leave to do so. It was immediately afterwards that they brought the instant application. Thus, they have shown that they moved the court timeously. 5. Lastly, on the question of security, the applicants submitted that they are willing abide by any security terms that may be ordered by the court. The respondent on the other hand submitted that the applicants were expected to propose the security terms, and failed to so. He also added that vacating the suit land would be the only reasonable security. 6. Considering that the applicants are willing to provide security for the due performance of the decree of the court, and the fact that the respondent as a successful party should not be unreasonably denied the fruits of his litigation, the court have done its best to balance the interests of the parties. Accordingly, the applicants are hereby ordered to deposit in court a sum of KShs four hundred thousand (Kshs. 400, 000/=) only within thirty (30) days, failing which, the respondent will be at liberty to execute against the said applicants. 7. On the issue of costs, the applicants will bear the costs for the reason that from the time the judgment was entered there has been a delay regarding the steps taken before. 8. Orders accordingly **Ruling dated, signed and delivered virtually via the Teams Platform this 8th of July 2026.** **HON. DR. IUR NYAGAKA** **JUDGE** **From 12:19 PM, in the presence of,** Mr. Kisia Advocate for the applicants Mr. Kerario Marwa Advocate for the Respondent