https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5242

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT THIKA** **ELC CIVIL APPEAL NO. E126 OF 2025** **SAMUEL MBUGUA** **…………………………………........………… 1ST APPELLANT** **JOSIAH MUYA MWAI ………………………………...…...……… 2ND APPELLANT** **(**Suing as the administrators of the estate of **JOSIAH MWAI MUYA)** **VERSUS** **JOSIAH WANDIBA MWAI ……..…………….….........……….. 1ST RESPONDENT** **DISTRICT LANDS REGISTRAR, KIAMBU ….......…..…… 2ND RESPONDENT** **GEORGE NG’ANG’ NDATHE ……………...…………...…….. 3RD RESPONDENT** **RULING** 1. This court is tasked with determining the Notice of Motion application dated 21st October 2025 in which the Appellant/Applicant seeks the following Orders: 1. *Spent…* 2. *Spent…* 3. *THAT pending the hearing and determination of the Appeal, the Honourable Court be pleased to stay the execution of the Judgment delivered on 11th September (sic), 2025 in Githunguri CMCC 89 OF 2019 and/or other consequential orders emanating therefrom.* 4. *THAT costs of this application be in the cause.* 2. The application is premised on the grounds on the face of it and the supporting affidavit of Samuel Mbugua sworn on even date. 3. The Appellant filed their Memorandum of Appeal dated 9th October 2025 challenging the judgment of the Honourable Peter Muholi SPM in Githunguri CMCC 89 delivered on 12th September, 2025. In the said judgment the Appellants’ suit was dismissed and they were ordered to vacate the property known as L.R No. Githunguri/Githunguri/ T776 (hereinafter ‘the suit property’). 4. The Appellants assert that they have lodged an appeal which, in their view, has overwhelming chances of success. They contend that unless execution of the impugned judgment and decree is stayed, the appeal may be rendered nugatory before the Court has had an opportunity to determine it. 5. It is the appellants’ case that the 3rd Respondent merely produced a title to claim ownership but failed to adduce sufficient evidence to establish that the said title was lawfully acquired. 6. The Appellants' apprehension is that if execution proceeds before the appeal is heard, they will be required to vacate the suit property. Should the appeal thereafter succeed, the victory may come too late to restore the position which execution will have altered. 7. The Respondents see the matter differently. They oppose the application through the Replying Affidavit of Josiah Wandiba Mwai sworn on 27th January 2006. They contend that the Appellants have brought the present application merely to forestall execution of the eviction order, without demonstrating the substantial loss they would suffer if execution were allowed to proceed. In their view, the application is intended only to prevent the 3rd Respondent from enforcing the order of eviction. 8. The Respondents further submit that litigation, like all things, must at some point come to an end. The application, in their view, discloses no sufficient basis for arresting execution and is devoid of merit. They accordingly urge the Court to dismiss it with costs. 9. The application was canvassed by way of written submissions in accordance with the court’s directions. **Issues for Determination** 10. Having considered the application, the replying affidavit in opposition, the rival submissions and the relevant authorities, the key issue that emerges for execution is: whether the Appellants have satisfied the requirements for the grant of a stay of execution. **Analysis and Determination** 11. A judgment is not suspended merely because an appeal has been lodged against it. The successful party remains entitled to the fruits of his judgment. But the law also recognises that an appeal should not be allowed to become an exercise in futility. Order 42 Rule 6 of the Civil Procedure Rules provides the means by which that balance is struck. 12. Order 42 Rule 6 permits the Court to stay execution pending appeal, but only where the conditions prescribed by the Rule have been satisfied. 13. Order 42 Rule 6(1) provides: *“(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.”* 14. Order 42 Rule 6(2) further states: *“(2) 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.”* 15. The question, therefore, is whether the Appellants have shown sufficient cause for the Court to withhold from the Respondents the fruits of a judgment they have obtained, pending the determination of the appeal. 16. The jurisprudence on the exercise of this discretion is well established. In ***Butt v Rent Restriction Tribunal* [1979] KECA 22 (KLR)**, the Court of Appeal held that the discretion to grant or refuse a stay must be exercised having regard to the particular circumstances of each case, with the central consideration being whether, in the absence of a stay, a successful appeal would be rendered nugatory. As Madan JA (as he then was) put it: *“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…”* 17. The discretion must be exercised judicially, having regard to the circumstances of the particular case and the competing interests of the parties. 18. The question of substantial loss must therefore be considered against the nature of the decree before the Court. 19. The Appellants have been ordered to vacate the suit property. Their apprehension is that, if execution proceeds before the appeal is heard, they will be removed from the property in circumstances where a successful appeal may come too late to restore the position that execution will have altered. 20. The Respondents take a different view and contend that the Appellants have identified no substantial loss beyond the ordinary consequence of an eviction order, the execution of which they now seek to forestall. 21. The Appellants apprehension is understandable. But eviction, without more, does not necessarily amount to substantial loss. The Court must consider the consequences of execution and whether they are such that a successful appeal would come too late to restore the Appellants to the position they occupied before execution. 22. The Appellants submit that execution will not merely result in their removal from the suit property. They contend that the structures they have erected thereon will be demolished, occasioning them substantial loss before the appeal can be heard and determined. 23. The Respondents dismiss that apprehension as legally unsustainable. They argue that the Appellants' occupation was found to be unlawful, that they possess no proprietary interest capable of protection, and that no evidence has been placed before the Court to demonstrate the alleged substantial loss. 24. The Court is not, at this stage, concerned with determining the merits of the appeal or revisiting the findings of the trial court. Those are matters reserved for the appeal itself. The present inquiry is whether the Appellants have demonstrated that the execution of the decree, if allowed to proceed before the appeal is heard, is likely to occasion substantial loss within the meaning of Order 42 Rule 6. 25. While the Respondents may ultimately be vindicated on appeal, the execution sought goes beyond restoring possession. It extends to the demolition of structures presently standing on the suit property. Once demolished, those structures cannot simply be re-erected by a favourable appellate judgment. The consequence would be to alter the subject matter of the appeal in a manner that may not readily be undone. 26. I am therefore satisfied that the Appellants have demonstrated the substantial loss contemplated under Order 42 Rule 6(2)(a) of the Civil Procedure Rules. 27. The final requirement concerns security for the due performance of the decree. While the Appellants have not offered any security, that omission is not, in itself, fatal to the application. Order 42 Rule 6(2)(b) entrusts the Court with the responsibility of determining the nature and quantum of the security to be furnished. The object is not to impede the right of appeal, but to ensure that the successful litigant is adequately protected should the appeal ultimately fail. 28. In determining the appropriate security, the Court must strike a balance between preserving the Appellants' right of appeal and safeguarding the Respondents against prejudice arising from the delay in enjoying the fruits of their judgment. 29. In the circumstances of this case, I am satisfied that the interests of justice will be adequately served by requiring the Appellants to deposit **Kshs.** 200,000/- in an interest-earning joint account in the names of counsel for the parties within **thirty (30) days** of this ruling. In default, the order of stay shall stand discharged without the necessity of any further order. 30. The costs of this application shall abide the outcome of the appeal. It is so Ordered. **Dated, signed and delivered virtually at Malindi this 29th day of July 2026** …………………….. **J. M. ONYANGO** **JUDGE** **In the presence of:** Mr Ongeri for the Appellant/ Applicant Mr Kangara for the 1st & 3rd Respondent Court Assistant: Sifa