https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5201

Matu v Karuri (Environment and Land Appeal E085 of 2024) [2026] KEELC 5201 (KLR) (28 July 2026) (Ruling) Neutral citation: [2026] KEELC 5201 (KLR) Republic of Kenya In the Environment and Land Court at Thika Environment and Land Appeal E085 of 2024 JM Onyango, J July 28, 2026 Between Alice Wanjiku Matu Appellant and Naomi Waithira Karuri Respondent Ruling 1.This Court is tasked with determining the Notice of Motion application dated 9th October 2025 in which the applicant seeks the following Orders:1.Spent…2.That this honourable court be pleased to issue an order of stay of execution of the judgment and decree delivered on the 8th day of October 2025 and/ or any further subsequent orders in ELC Appeal Case No E085 of 2024 in the Environment and Land Court at Thika pending the hearing and determination of this application.3.That this honourable court be pleased to issue an order of stay of execution of the judgment and decree delivered on the 8th day of October 2025 and/ or any further subsequent orders in ELC Appeal Case No E085 of 2024 in the Environment and Land Court at Thika pending the hearing and determination of the intended Appeal to the court of Appeal.4.That the cost be in the cause. 2.The application is premised on the grounds set out on the face of it and the supporting affidavit of Alice Wanjiku Matu sworn on even date. 3.The Applicant's apprehension arises from the fact that this Court, in upholding the decision of the trial court, affirmed the finding that she was a trespasser and the consequential award of damages in the sum of Ksh. 500,000/-. She contends that the proceedings leading to that judgment were fundamentally flawed by want of jurisdiction. 4.The Applicant’s case is that, at the material time, the dispute was pending before the Business Premises Rent Tribunal (BPRT), and that neither the trial court nor this Court had jurisdiction to entertain the matter in the manner in which it was presented. 5.The Applicant contends that the jurisdictional objection was not raised earlier because her then advocates failed to disclose that the dispute was pending before the BPRT. She now intends to challenge the judgment on the ground that the courts below proceeded to determine a dispute which, in her view, fell within the Tribunal's jurisdiction. It is on this basis that she seeks a stay of execution, contending that the Respondent ought not to proceed with enforcement while the competence of the proceedings and the jurisdiction of the courts to determine the dispute remain the subject of challenge on appeal. 6.The Applicant further contends that she stands to suffer substantial loss if execution is allowed to proceed before the intended appeal is heard and determined. 7.The Applicant further contends that execution of the decree before the intended appeal is heard and determined would render the appeal nugatory. She therefore urges the Court to stay execution pending the determination of the intended appeal. 8.The application was vehemently opposed through the replying affidavit of Naomi Karuri sworn on 17th November 2025. 9.The respondent contended that the Applicant had failed to demonstrate the substantial loss it would suffer if execution were to proceed. It was further contended that the Applicant had neither offered nor furnished security for the due performance of the decree. 10.The Respondent's position was, therefore, that the Applicant had failed to satisfy the conditions upon which the Court's discretion to grant a stay of execution may properly be exercised. In any event, the Respondent contended that the intended appeal disclosed no arguable point of law or fact and was devoid of merit. 11.The application was canvassed by way of written submissions which were orally highlighted by the applicant and counsel for the respondent. 12.Having considered the application, the replying affidavit in opposition, the rival submissions and the relevant authorities, the key issue that emerges for determination is: whether the Applicant has satisfied the conditions for the grant of a stay of execution pending appeal. Analysis and Determination 13.The principles governing the grant of a stay of execution pending appeal are well settled. Order 42 Rule 6(2) of the Civil Procedure Rules provides:“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.” 14.In essence, the provision sets the terms upon which the Court may hold execution in abeyance. The Applicant must show that substantial loss may follow if execution is allowed to proceed, that the application has been brought without unreasonable delay, and that adequate security has been provided for the due performance of the decree. Those requirements must, however, be considered in the setting of the particular case. The Court must hold the scales between two competing rights: the Applicant's right to pursue an appeal, and the successful party's right not to be kept indefinitely from the fruits of a judgment already obtained. 15.The jurisprudence is settled that the cornerstone of an application for stay pending appeal is the demonstration of substantial loss. It is not enough for an Applicant to merely apprehend that execution will proceed; the Court must be shown, by evidence, what loss is likely to be suffered and why that loss would be substantial. 16.As was observed in Kenya Shell Limited v Benjamin Karuga Kibiru & Another [1986] substantial loss is the central consideration in an application of this nature, for it is the loss that the Court seeks to prevent while the right of appeal is being exercised. 17.The Court must therefore be satisfied, on the material placed before it, that execution in the interim would occasion a loss that is substantial in nature. 18.The question, therefore, is not merely whether execution will take place, but what consequence execution will have upon the Applicant. It is against that consideration that the Applicant's apprehension that the intended appeal will be rendered nugatory must be examined. 19.In the present case, the Applicant says that execution will render the intended appeal nugatory. But what, precisely, is the substantial loss that execution will occasion? The Applicant has not identified it, nor placed before the Court material from which the nature or extent of the apprehended loss can be ascertained. 20.The decree in question is a monetary one, and the Applicant has not demonstrated that satisfaction of the decretal sum would expose her to a loss beyond the ordinary consequence of execution of a money decree. Neither has she placed before the Court any material to suggest that, should the intended appeal succeed, the decretal sum would be incapable of recovery. 21.The fact that an Applicant is required to satisfy a decree before an appeal is heard does not, without more, constitute substantial loss. If it did, every monetary decree would, by that fact alone, attract a stay of execution, and the successful party would be deprived of the fruits of judgment merely because an appeal has been preferred. That is not the law. The burden rests upon the Applicant to demonstrate the particular prejudice that execution will occasion, and that burden has not, in my view, been discharged in the present case. 22.I have not overlooked the Applicant's contention that the intended appeal raises a question of jurisdiction arising from the alleged pendency of the dispute before the BPRT. That issue may properly fall for consideration by the appellate court. But the existence of a proposed jurisdictional challenge, however important, does not by itself establish substantial loss for purposes of Order 42 Rule 6(2). The Applicant must still satisfy the requirements for a stay, and on the material before me, she has not done so. 23.That finding is sufficient to dispose of the application. It is therefore unnecessary for me to consider the remaining requirements for the grant of a stay under Order 42 Rule 6(2). 24.In the circumstances, having failed to demonstrate the substantial loss that would result if execution proceeds, the Applicant has not satisfied the threshold for the grant of a stay of execution pending appeal. 25.The application dated 9th October 2025 therefore fails and is accordingly dismissed with costs.It is so ordered. DATED, SIGNED AND DELIVERED, AT MALINDI THIS 28TH DAY OF JULY 2026……………………J. M. ONYANGOJUDGEIn the presence of:Mr Otieno for the RespondentNo appearance for the Appellant/ ApplicantCourt Assistant: Sifa