https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4823

**REPUBLIC OF KENYA IN THE ENVIRONMENT AND LAND COURT AT EMBU** **ELCA NO. E032 OF 2024** **JOSEPH NTHIGA MUNYI.........................................................APPELLANT** **VERSUS** **JOSEPH KANGANGI GIKUNJU *(Legal Representative of the Estate of Nephat Gikunju Kiringi (Deceased))*...........................................................................RESPONDENT** **RULING** The Appellant/Applicant has moved this Court by a Notice of Motion dated 1st April 2026 principally seeking an order of stay of execution pending the hearing and determination of his intended appeal to the Court of Appeal, together with an order preserving the status quo in respect of Land Parcel No. **MBEERE/KIRIMA/1087**. The Application is expressed to be brought under the provisions of Order 42 Rule 6 of the Civil Procedure Rules and is supported by the affidavit of the Appellant sworn on 1st April 2026. The Applicant contends that he is dissatisfied with the judgment of this Court delivered on 19th March 2026 dismissing his appeal against the judgment of the Senior Principal Magistrate in Siakago MELC No. E101 of 2018. He avers that he has already lodged a Notice of Appeal, intends to pursue an appeal before the Court of Appeal, has been in possession of the suit property after allegedly purchasing it from the deceased, and that unless stay is granted, he faces imminent eviction thereby rendering his intended appeal nugatory. He further states that he is ready to abide by any conditions as to security that the Court may impose. The Respondent opposed the Application through the Replying Affidavit sworn on 6th May 2026. His principal contention is that the judgment sought to be stayed merely dismissed the appeal and therefore constitutes a negative order incapable of execution or stay. He further argues that the Applicant has not demonstrated substantial loss as required under Order 42 Rule 6 of the Civil Procedure Rules, has not offered any security for the due performance of the decree, and is merely seeking to delay execution of the valid decree issued by the trial court. He urges that he is entitled to enjoy the fruits of his judgment. Both parties filed written submissions which I have carefully considered together with the authorities cited. The issue falling for determination is whether the Applicant has satisfied the legal requirements for grant of stay of execution pending the intended appeal to the Court of Appeal. The jurisdiction of this Court to grant stay pending appeal is donated by Order 42 Rule 6 of the Civil Procedure Rules. An applicant must satisfy the Court that the application has been made without unreasonable delay, that substantial loss may result unless the order is granted, and that security for the due performance of the decree has been offered. Before considering those conditions, it is necessary to determine whether the judgment sought to be stayed is capable of being stayed in the first place. The judgment delivered by this Court on 19th March 2026 dismissed the appeal and consequently upheld the judgment of the subordinate court. It neither directed any party to perform a positive act nor ordered payment of money. The decree extracted from this Court simply dismissed the appeal with the consequence that the decree of the trial court remained intact. The law is now settled that a negative order is incapable of execution and consequently incapable of being stayed. In **Western College of Arts and Applied Sciences v Oranga & Others [1976] KLR 63**, the Court of Appeal held that where a court merely dismisses a suit, there is nothing arising from such dismissal that can be stayed except an order relating to costs. The same principle has consistently been reaffirmed by the superior courts, including in **Kanwal Sarjit Singh Dhiman v Keshavji Jivraj Shah [2008] eKLR**, **Panchamatia & 3 Others v Prime Bank Limited & Another [2020] KECA 418 (KLR)** and **Kenya Commercial Bank Ltd v Tamarind Meadows Ltd & 7 Others [2026] KEHC 8610 (KLR)**. This Court is in agreement with the Respondent that the decree sought to be stayed is purely negative. There is therefore no executable decree arising from the judgment of this Court capable of being stayed. The Applicant appears to argue that unless stay is granted, the Respondent will proceed to execute the eviction decree issued by the subordinate court. That argument cannot assist him. The decree capable of execution is the decree issued by the trial court following its judgment. This Court's judgment merely affirmed that decree. The Applicant has not sought stay of execution before the trial court under Order 42 Rule 6(1), nor can this Court transform its appellate judgment into a positive decree merely because the lower court decree remains enforceable. Even assuming, for argument's sake, that stay were available, the Applicant would still be required to satisfy the statutory conditions under Order 42 Rule 6. The cornerstone of an application for stay is proof of substantial loss. The Court in **James Wangalwa & Another v Agnes Naliaka Cheseto [2012] eKLR** held that execution alone does not constitute substantial loss because execution is a lawful process. An applicant must demonstrate, through evidence, what specific loss he is likely to suffer and why such loss cannot be adequately compensated. The Applicant has merely deponed that he occupies the suit property and that eviction would occasion substantial and irreparable loss. Beyond those general averments, no evidence has been placed before Court to demonstrate the nature of the developments on the land, whether it constitutes his only residence, the extent of the alleged prejudice, or why damages would not adequately compensate him should his intended appeal ultimately succeed. Bare assertions of substantial loss do not satisfy the threshold contemplated under Order 42 Rule 6. Equally, although the Applicant states that he is willing to comply with any conditions relating to security, he has neither proposed nor offered any specific security for the due performance of the decree as required by law. The requirement for security is mandatory and not merely discretionary. I am satisfied that the application was filed without unreasonable delay, having been lodged approximately two weeks after delivery of judgment. However, promptitude alone cannot justify grant of stay where the substantive statutory requirements have not been met. The Applicant has also invited this Court to preserve the status quo pending the intended appeal. In substance, that prayer seeks to achieve indirectly what the Court cannot grant directly. Where the law does not permit stay of a negative order, the Court cannot circumvent the settled legal position by issuing preservation orders whose practical effect is to suspend execution of a decree that has not been stayed in accordance with law. Courts have consistently cautioned against granting orders whose effect is to defeat the successful litigant's right to enjoy the fruits of a lawful judgment without satisfying the legal threshold for stay. The Court is alive to the principle that the right of appeal should be safeguarded wherever possible. Equally important, however, is the principle that successful litigants are entitled to enjoy the fruits of their judgments and that litigation must come to an end. The discretion to grant stay must therefore be exercised judicially and only within the confines of the law. In the circumstances of this case, the Applicant has failed to bring himself within those confines. Consequently, I find that the Notice of Motion dated 1st April 2026 lacks merit. Accordingly, the Court makes the following orders: 1. The Notice of Motion dated 1st April 2026 is hereby dismissed. 2. The costs of the Application shall be borne by the Appellant/Applicant. It is so ordered. **DATED, SIGNED AND DELIVERED AT EMBU THIS 23RD DAY OF JULY, 2026.** **...............................................** **HON. E.C CHERONO** **ELC JUDGE, EMBU** 1n the presence of; 1. Ms Wambui holding brief Ms Makworo for the Applicant 2. Ms Kimathi holding brief Mr Okwaro for the Respondent 3. Ruth – Court Assistant