https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4984

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT KITALE** **ELC CASE NO. 34 OF 2020** **JOHN KAMAU MUIGAI---------------------1ST PLAINTIFF/APPLICANT** **JOEL NGASHA----------------------------------2ND PLAINTIFF/APPLICANT** **DAVID GATIBA KIMANI---------------------3RD PLAINTIFF/APPLICANT** **VESRUS** **TURBO MUNYAKA CO-OPERATIVE** **SOCIETY LIMITED------------------------1ST DEFENDANT/RESPONDENT** **ONESMUS GICHIRI MBURU-------2ND DEFENDANT/RESPONDENT** **RULING** 1. The applicants moved this court vide an application dated **10/5/2026.** They sought orders that; 2. **…Spent** 1. **Pending the hearing and determination of this application inter partes, this court be pleased to grant an order for stay of execution or stay of implementation of the judgment and decree issued in Kitale ELC No. 34 of 2020, together with all consequential orders arising therefrom.** 2. **Pending the hearing and determination of the intended appeal against the judgment delivered by Hon. Justice C.K. Nzili on 18/3/2026 in Kitale ELC No. 34 of 2020, this court be pleased to grant an order for stay of execution or stay of implementation of the said judgment, decree and all consequential orders thereto.** 3. **Pending the hearing and determination of the intended appeal, this court be pleased to grant an order of stay of execution or stay of implementation of the judgment or decree and all consequential orders thereto, including any further issuance, transfer, registration, disposal, alienation or dealings in respect of parcel numbers Munyaka Trading Centre/13, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30,32, 34, 35, 36, 37, 38, 39, 40, 41, 42, 43, 44, 45 and 88.** 4. **Costs of this application be provided for.** 5. **The court be pleased to make such further or other orders as it may deem fit and just for the ends of justice.** 6. The application is predicated on the grounds on the face of it and further grounds adduced in the supporting and further affidavits sworn by John Kamau on **10/5/2026** and **15/6/2026.** He swears the affidavits on his own behalf and on behalf of his co-applicants. 7. The applicants contend that they have filed an appeal, and if a stay of execution is not granted, substantial loss may result upon execution as they will be evicted from the suit properties, where they have developed and have been living. 8. Further, the applicants depose that the 1st respondent has commenced releasing the **31** leases in respect of the suit properties to persons who are disposing of the plots. Unless this court intervenes and grants an order of stay, the intended appeal shall be rendered nugatory. They stand to suffer irreparable loss if execution proceeds, as they have developed the suit parcels and cannot be adequately compensated by way of damages. 9. The applicants also aver that the appeal is arguable and has a reasonably high chance of success; they have filed the application without delay and are willing to abide by any conditions and terms as to security that this court may impose. 10. Copies of the judgment, notice of appeal, letter requesting typed proceedings, and a memorandum of appeal have been attached as a bundle. 11. According to the applicants, the 2nd and 3rd applicants have developed and stay in land comprised in **Munyaka Trading Centre /89 and 43** (the suit properties), which was declared as belonging to the 1st respondent, and shall incur substantial loss in case of an eviction. 12. The application is opposed through a replying affidavit sworn by James Kariuki Gichora on **3/6/2026**. As the chairman of the 1st respondent, he avers that the application for stay is devoid of merit and should be dismissed. 13. The 1st respondent deposes that the suit was dismissed with costs on **18/03/2026** and that, being a negative order, it cannot be stayed. The 2nd and 3rd applicants in the primary suit have no proprietary interest in parcel **Nos. Munyaka Trading Centre/89 and 43.** 14. Further, the 1st respondent contends that a **90** days’ notice under **Section 152E(1) and (2) (a) and (d**) of the Land Act was served upon the 2nd and 3rd applicants, on **20/4/2026**, for them to move out of the **Nos. 89 and 43,** respectively. The notice has been attached and marked as “**JKG1”**. 15. According to the 1st respondent, the 2nd applicant has since demolished his structures and vacated **Plot No. 89**. Annexed and marked "**JKG2 (a) and (b)"** are photographs showing the demolished structures and the vacated plot. Therefore, the applicants have not demonstrated substantial loss if the 3rd applicant is evicted, as his structures are temporary and used as business premises. 16. The 1st respondent avers that the applicants have not offered any security and the application does not meet the threshold for the grant of stay orders. He avers that he should be allowed to enjoy the fruits of his judgment. 17. Through a further affidavit sworn by the 1st applicant, the applicants aver that orders are positive, executable and capable of being stayed pending appeal. The alleged notice is therefore incapable of proving compliance with the mandatory requirements of **Sections l52E- 152F** of the Land Act. 18. Similarly, the applicants contend that they have not demolished or removed their structures from the suit properties as alleged but are still in possession and occupation. 19. To this end, the applicants have attached and marked the photographs showing the current status of the suit premises as **A-1.** The applicants also assert that the threatened demolition of structures and eviction would fundamentally alter the character and status of the suit properties and render the intended appeal nugatory. That if the orders sought are not granted and eviction ensues, restoration shall beimpossible. 20. The applicants' convenience tilts heavily in favour of preserving the *status quo* pending the hearing and determination of the appeal. 21. The application was canvassed through written submissions. The applicants rely on submissions dated **16/6/2026**. They rely on **Order 42 Rule 6** of the Civil Procedure Rules for the conditions necessary to grant stay orders. 22. On substantial loss, the applicants, relying on ***Mukuma -vs- Abuoga (1988) KLR 645,*** submit that it is the cornerstone discretion by the Court in the granting of orders of stay of execution. They further relied on ***Turbo Transporters Ltd -vs- Absolom Dova Lumbasi, HCCA No. 37 of 2012, James Wangalwa & Another -vs- Agnes Naliaka Cheseto, Bungoma HC Misc. Application No 42 of 2011 and Niazsons (K) Ltd. -vs- China Road & Bridge Corporation (Kenya) [2001] eKLR***, cited in ***Port Florence Community Health Care -vs- Crown Health Care Limited [2022] eKLR,*** to submit that they have demonstrated that substantial loss is imminent. 23. Regarding delay, the applicants submit that they filed their notice of appeal dated **31/3/2026**, followed by requested certified copies of the proceedings and judgment for purposes of prosecuting their intended appeal. They also filed the instant application timeously, before the **90-day** period expired. 24. Coming to the issue of security, the applicants rely on ***Focin Motorcycle Co. Ltd -vs- Ann Wambui Wangui & Another [2018] eKLR,*** that it is at the discretion of the court. 25. The applicants submit that an arguable appeal must not necessarily succeed but raises *bona* *fide* issue deserving consideration by the appellate court. They insist that unless a stay is granted, eviction, demolition and possible transfer of the suit properties may proceed before the appeal is heard, rendering the same nugatory. The applicants submit that the intended appeal is arguable and deserving of the orders sought. 26. The respondents, on the other hand, rely on written submissions dated **22/6/2026**. They submit that the applicants' suit was a negative order and is incapable of execution. They rely on the holding in ***Catherine Njeri Maranga -vs- Serah Chege & Another (2017) eKLR***, 27. The respondents further submit that the stay application can therefore only be confined to the orders in the counterclaim, which only relate to the 2nd and 3rd applicants. They further submit that the affidavits are fatally defective with no evidential value. That they should be struck out since the 1st applicant has no *locus standi* to swear to the two supporting affidavits on behalf of the 2nd and 3rd applicants, as he did not have authority to represent the 2nd and 3rd applicants in the counterclaim to which he was not a party. They submit that the said affidavits are contrary to **Order 19, Rule 3(1)** of the Civil Procedure Rules and should be struck out and expunged. 28. The applicants rely on ***Nairobi HCCA No. 374 of 2015 Nuru Abdula Ahmed -vs- Abdirashid Adan Hassan, Petition 8 of 2014 Patricia Cherotich Sawe -vs- Independent Electoral Boundaries Commission 4 Others (2015) eKLR East African Court of Appeal Premchand Raichand & Another Ltd -vs- Quarry Services & Others (1969) E.A***, ***James Wangalwa*** *(supra)* and**Order 42 Rule (6)** of the Civil Procedure Rules requisite threshold for the discretionary relief of stay of the judgement on the counterclaim while pending the hearing and determination of an intended appeal and it should be dismissed with costs. 29. Having considered the application, rival affidavits, written submission and the applicable law, the application is determined as hereunder. 30. It is trite that the filing of an appeal does not operate or amount to an automatic stay of execution. A party must establish the prerequisite conditions for the court to order a stay of execution provided under **Order 42 Rule 6(2)** Civil Procedure Rules. 31. An applicant must demonstrate and satisfy the court that substantial loss may result unless the order is granted, the application has been made without unreasonable delay, and provide such security for the due performance of such decree or order as may ultimately be binding on him. 32. The court, in ***James Wangalwa*** *(supra),* held that execution does not amount to substantial loss since execution is a lawful process. An applicant must establish other factors showing 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. Substantial loss, therefore, means what has to be prevented by preserving the status quo, because such loss would render the appeal nugatory. 33. A court will require an applicant to produce empirical or scientific evidence of the projected loss or damage, as a guide to establish whether there is substantial loss or not. Mere assertions without cogent evidence will not sway the discretion of the court, as held in ***Samvir Trustees Limited -vs- Guardian Bank Limited [2000] eKLR.*** 34. In ***Dodhia -vs- Wafula [2025] eKLR***, the court held that sufficient material must be adduced showing exceptional circumstances why the successful party should be denied the fruits of his judgment. 35. In this application, the applicants allege that they are still in occupation and use of the suit properties. The developments seen in the photographs show temporary structures. There is no evidence of ongoing businesses on the suit premises. The respondents allege that the 2nd applicant has already vacated the premises, though the applicants have denied this allegation. 36. Essentially, the applicants have not demonstrated, through cogent and tangible evidence, the irreparable loss they are likely to suffer if eviction ensues, which loss cannot be compensated in damages. This court has not come across any evidence to assess the nature, particulars, and value of the alleged extensive developments on the suit property undertaken by the applicants, which are likely to be destroyed or wasted away, in the absence of the orders sought. 37. The law has not set what the maximum or minimum delay is; it all depends on the circumstances of each case. In the instant application, following the delivery of the judgment on **18/3/2026,** the applicant filed the notice of appeal on **31/3/2026**. They then waited until **10/5/2026** to file this application. The applicants have not offered any explanation for the delay, which this court finds to be inordinate. The applicants seem to have been triggered to file this application by the notice of eviction. 38. Regarding security, none has been offered by the applicants apart from stating their willingness to comply with what the court shall order. As held in ***Focin Motorcycle Co. Ltd*** *(supra),* security for the due performance of the decree is a mark of bona fides, that the application for stay is not just meant to deny the respondents the fruits of their judgment. 39. In ***Samvir Trustee Ltd*** *(supra)*, the court held that a party aggrieved by a decision has an unfettered right to appeal, and a court should not put unnecessary hindrance to that right if the applicant for stay has demonstrated special circumstances, which can sway its discretion in a particular manner. 40. The court also held that the court should balance or weigh the scales of justice by ensuring that an appeal is not rendered nugatory while at the same time, seeing to it that a successful party is not impeded from enjoying the fruits of their judgment which has defined its rights with a definite conclusion. 41. The court in its judgment issued **90 days** within which the applicants were to vacate the suit premises. Evidently, this was sufficient time for the applicants to expedite the filing of the stay application and take steps to prosecute the appeal. As at now, there is no evidence on an appeal that is live at the Court of Appeal. 42. From the foregoing, the applicants have failed to meet the principles elucidated in the case law as analyzed above, to sway this court’s discretion to grant stay orders. It would therefore defeat justice to grant any orders. 43. The upshot is that the application dated **10/5/2026** is hereby dismissed with costs to the respondents. 44. Orders accordingly. **Ruling dated, signed,** and **delivered** via **Microsoft Teams/Open Court** at **Kitale** on this **31st** day of **July 2026.** **In the presence of:** Court Assistant: Matui/Nancy Mr. Kiarie for the plaintiff present N/A for the applicant  **HON. G.M. GITONGA** **JUDGE, ELC KITALE**