Maside v Mwaura (Environment and Land Appeal E012 of 2026) [2026] KEELC 4734 (KLR) (24 July 2026) (Ruling)

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT KITALE** **ELC APPEAL NO. E012 OF 2026** **CHARLES MASINDE--------------------------APPELLANT/APPLICANT** **VERSUS** **SAMUEL MWAURA------------------------------------------RESPONDENT** **(*Being an appeal from the Judgment and Decree extracted therefrom in Kitale CM Civil Suit No. 2 of 2015 delivered by Hon. C.N. Njalale (PM) on 19/05/2026*)** **RULING** 1. The appellant in the main appeal moved this court by way of a Notice of Motion application dated **22/5/2026** seeking the following orders: 2. **THAT the instant application be certified urgent (spent)** 3. **THAT this Honourable Court be pleased to grant an order for stay of execution of the judgment and decree issued on 19/5/2026 in Kitale Civil Suit No. 2 of 2015 pending interpartes hearing and determination of this application (spent).** 4. **THAT this court be pleased to grant an order for stay of execution of the judgment and decree issued on 19/5/2026 in Kitale Civil Suit No. 2 of 2015, pending the hearing and determination of the intended appeal.** 5. **THAT costs to abide the outcome of the intended appeal.** 6. The application is based on the grounds on the face of it, mainly that if stay of execution is not granted, substantial loss may result as the children residing on the suit land will be rendered homeless. The applicant further states that the appeal has reasonable chances of success and that it will be rendered nugatory if the order sought is not granted. 7. The applicant equally relies on the grounds that there has been no delay in bringing the application to court, having been so brought after **3** days of the delivery of judgment. 8. The application is equally supported by the sworn affidavit of the applicant herein, setting out the facts giving rise to the same. 9. The respondent is opposed to the said application. He filed a replying affidavit sworn and dated **6/7/2026**. 10. In the said replying affidavit, the respondent avers at paragraph **4** that upon the delivery of the judgment and acting on the strength thereof, he caused the extraction of the court’s decree and subsequently presented it to the Land Registrar, Trans Nzoia County, who effected the removal of caution over the suit land on **3/6/2026**, way before the interim orders were issued on **11/6/2026**. 11. The respondent further states that in the circumstances, there is no caution on the register whose removal is capable of being stayed and that the application is superfluous since it is seeking stay of execution of a decree already executed. 12. Directions were taken that the application be argued orally. At the hearing hereof, Ms. Wafula, learned counsel for the applicant, reiterated the grounds upon which the application is based. Counsel further submitted that the applicant runs a children’s home in the suit land and that they had been in occupation since **2008**. Counsel relied on **Order 42 Rule 6** of the Civil Procedure Rules and urged the court to allow the application on grounds that the applicant meets all the conditions set out in the above legal provision. 13. The learned counsel further submitted that if the stay orders are not granted, the respondent might deal with the suit property in a manner that will occasion substantial loss to the applicant. Counsel urged the court to be guided by the case of ***William Odhiambo Ramogi & 3 Others vs Attorney General & 4 Others [2019] eKLR***. Counsel further contended that they have an arguable appeal which will be rendered nugatory if the orders sought are not granted. 14. On her part, Mrs. Kayugira, for the respondent, referred the court to the replying affidavit sworn by the respondent, Samuel Mwaura Kihara, on **6/7/2026**. Counsel submitted that the decree made by the trial court is a declaratory decree to the effect that the defendant has no proprietary interest in the suit property and that such an order is not capable of being stayed. Counsel further submitted that the applicable test for stay of execution pending appeal is whether substantial loss would be incurred if stay is not granted. Counsel argued that no evidence of demonstrable loss has been tendered. The learned counsel equally stated that the applicant has not provided security for costs as is required for such applications under **Order 42 Rule 6** of the Civil Procedure Rules. 15. Further, Mrs. Kayugira submitted that after the caution which had been placed in the suit land was removed, there is nothing left in respect of which a stay of execution order can issue. Counsel referred the court to the case of ***West Professional Freighters vs Welser Barge Ogada & 2 Others Application No. 4 of 2017***, in which the court held that a prayer for a stay of execution order overtaken by events cannot be stayed. Counsel further submitted that the plea that the appeal would be rendered nugatory is not one of the conditions contemplated under **Order 42 Rule 6** of the Civil Procedure Rules. 16. In a rejoinder, Ms. Wafula for the applicant maintained that the prayer for stay of execution is not overtaken by events because if not granted, the respondent could dispose of the suit property to the detriment of the applicant and the children. Council further stated that the applicant is willing to comply with any directions as to depositing of security for costs. 17. I have carefully considered the application together with the rival affidavits on record. I have equally considered the oral arguments by both counsel, for which I am grateful. 18. From the said arguments and the rival affidavits, the issue that falls for the court’s determination is whether the application before me has merit. 19. In answering the above question, regard must be had to the applicable laws viewed against the facts of this case. 20. The law governing the grant of orders for stay of execution pending appeal is codified under **Order 42 Rule 6** of the Civil Procedure Rules, which provides as follows: ***“No order for a 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. In seeking to breathe life into the above legal provision, the Court of Appeal in the case of ***Butt vs Rent Restrictions Tribunal [1982] KLR 41***7, gave the following guidelines when determining whether to grant or refuse a stay of execution pending appeal: *(a) The power of the court to grant or refuse an application for a stay of execution is discretionary, and the discretion should be exercised in such a way as not to prevent an appeal.* *(b) Secondly, the general principle in granting or refusing a stay is, if there is no other overwhelming hindrances, a stay must be granted so that an appeal may not be rendered nugatory should the appeal court reverse the judge’s discretion.* ***(c)*** *Thirdly, a judge should not refuse a stay if there are good grounds for granting it merely because, in his opinion, a better remedy may become available to the applicant at the end of the proceedings.* ***(d)*** *Finally, the court in exercising its discretion whether to grant or refuse an application for stay will consider the special circumstances and its unique requirements. The court, in exercising its powers under* ***Order XL1 Rule 4(2)(b)*** *of the Civil Procedure Rules, can order security upon application by either party or on its own motion. Failure to put security for costs as ordered will cause the order for stay of execution to lapse.* 1. Turning to the case before me, the applicant contends that if a stay of execution order is not granted, the plaintiff might deal with the suit land in any manner he pleases in light of the removal of the caution which had been lodged, which will defeat the appeal, and occasion substantial loss. The applicant further contends that the application was made timeously and that he is willing to comply with any order to deposit security for costs. 2. On the other hand, the respondent has faulted the application. Through counsel on record, the applicant contends that after the decree of the court, the caution was removed and that there is nothing to be stayed in the circumstances. That what the applicant is seeking is an order that cannot be granted by this court and that the issue of whether there are children in the suit property was not an issue canvassed at the lower court. The respondent further contends through counsel that **Order 42 Rule 6** of the Civil Procedure Rules does not contemplate as a condition for granting or refusing a stay of execution pending appeal, the question as to whether the appeal would be rendered nugatory. 3. Looking at the totality of the circumstances of the case before me, there is no doubt that this application was brought timeously. The applicant too has undertaken to provide security for costs through his advocate’s oral submissions in court. In any case, the court may, on its own motion while exercising its powers under **Order XV1 Rule 4(2)(b)** of the Civil Procedure Rules, order for security for costs (See ***Butt vs Rent Restrictions Tribunal*** )*(Supra).* It follows, therefore, that on the face of it, the applicant meets **2** of the **3** conditions set out under **Order 42 Rule 6** of the Civil Procedure Rules, as expounded in the ***Butt Case*** *(Supra).* 4. However, the other condition that this court is enjoined by law to examine closely is whether the applicant has demonstrated that he will suffer substantial loss if the stay orders are not granted. 5. What constitutes substantial loss was given a judicial interpretation in the case of ***James Wangalwa & Another vs Agnes Naliaka Cheseto [2012] eKLR***, when the court posited as follows: ***“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 Civil Procedure Rules. This is so because execution is a lawful process. The applicant must establish 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….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.”*** 1. The applicant has sought to demonstrate to this court that on the disputed land, a children's home is established and that he (applicant) has been in occupation since **2008**. The applicant has equally told the court that if no stay of execution is granted, the plaintiff may deal with the suit land in a manner that is detrimental to his continued occupation of the said land and the children housed therein. Of course, this argument was countered by the respondent, who told the court through counsel that the issue of the children was not an issue that was canvassed at the lower court and that the applicant can rent other premises. 2. It is not a wild thought to hold that with the removal of the caution which was lodged against the suit property, the respondent herein now wields free hand to deal with the suit property in the manner he pleases, in line with **Section 24** of the Land Registration Act. The plaintiff, for example, could dispose of the suit property to another person other than the interested parties who were not parties to the suit before the lower court. The entirety of the appeal would be rendered an academic exercise in such an eventuality. 3. In the case of ***Butt*** *(Supra),* the Court of Appeal guided that the general principle in granting or refusing to grant a stay is, if there is no other overwhelming hindrance, a stay must be granted so that an appeal may not be rendered nugatory should the appeal court reverse the judge’s discretion. 4. Looking at the totality of the conditions set out in **Order 42 Rule 6** of the Civil Procedure Rules, I would be inclined to grant a stay of execution pending appeal in this matter with an accompanying order for security of costs. 5. However, I must address my mind to one last issue that was argued by the respondent through Mrs. Kayugira, Advocate, that the order of the trial court was a declaratory order following which the respondent moved to have the caution lodged against the suit property removed; hence there is nothing to stay. 6. I would equate this argument to the Court of Appeal jurisprudence in stay of negative orders under **Rule 5(2)(b)** of the Court of Appeal Rules and borrow the wisdom and rationale behind the said jurisprudence. In applications under **Rule 5(2)(b),** the court is not bound to look merely at the form of the language of the order, but it is entitled to examine its practical and legal effect. Where a dismissal or refusal, though negative in form, triggers or permits immediate positive steps such as execution of an earlier decree, eviction, removal from office or implementation of an administrative decision, the court may intervene to arrest the consequences. See ***Stanley Kang’ethe Kinyanjui vs Tony Keter & 5 Others [2013] eKLR***. 7. It follows from the above jurisprudence that where appropriate, the court may craft tailored reliefs, not by staying the negative order itself, but by restraining consequential acts from it, such as eviction, enforcement and execution. 8. With tremendous respect, therefore, I do not agree with Mrs. Kayugira’s view that the trial court merely made a declaration from which no stay of execution can issue, moreso, now that the caution in respect of the suit land has been lifted. My considered view is that it would be in the interest of justice to maintain the status quo with regard to the occupation of the suit land pending the hearing and determination of the appeal. The court is, however, minded to impose some conditions as it will herebelow do to ensure justice to all the parties involved and for quick disposal of the appeal. 9. The upshot is that the application dated **25/5/2025** is allowed in the following terms: 10. **The Land Registrar, Trans Nzoia County shall register a fresh caution in respect of Land Title No. Waitaluk/Kapkoi Block 13/744, pending the hearing and determination of the appeal in this matter.** 11. **The applicant shall within 30 days from the date hereof provide security for costs in the sum of Kshs. 200,000/=, which amount shall be deposited into a joint account of the advocates of the parties herein, failing which the stay of execution order herein shall lapse.** 12. **The respondent herein is restrained from disposing of or dealing with the suit land in any other manner whatsoever, pending the hearing and determination of this appeal.** 13. **The appeal shall be heard on a priority basis and concluded within 180 days.** **(e) The costs of this application shall abide the outcome of the appeal.** 1. 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 Mrs. Kayugira for the respondent Ms. Kibonei for Ms. Nasike for the appellant  **HON. G.M. GITONGA** **JUDGE, ELC KITALE.**