https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4987

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT KITALE** **ELC CASE NO. 22 OF 2022** **PENROSE NAMISI--------------------------------PLAINTIFF/RESPONDENT** **VERSUS** **DUNCAN DAUDI NDUBI------------------------------------1ST DEFENDANT** **LUKORITO WANAMATITI--------------2ND DEFENDANT/APPLICANT** **RULING** 1. The application before me for determination is the Notice of Motion dated **12/5/2026** in which the applicant is seeking orders for stay of the judgment delivered on **2/7/2025** and the consequent decree of **2/9/2025** pending the appeal. 2. The applicant states that he has filed an appeal, being **Civil Appeal No. E075 of 2025** which appeal has a high chance of success and that if the execution occurs, he will suffer irreparable loss and injury. 3. According to the applicant, the respondent has filed a bill of costs for taxation to commence the execution process. 4. In further grounds contained in the supporting affidavit sworn by the applicant on the even date, he deposes that the respondent shall not be prejudiced. Copies of the decree, notice of appeal, record of appeal and a bill of costs are attached and marked **LW1-3**, respectively. 5. The respondent opposes the application vide a replying affidavit sworn on **6/6/2026.** She deposes that the application is misconceived, bad in law and an abuse of the court process. 6. Further, the respondent asserts that the judgment was delivered after hearing and the court considering all the evidence tendered and that applicant has not demonstrated sufficient grounds for substantial loss to warrant stay orders. 7. The respondent deposes that there is no evidence that she is not in a position to refund any amount if the appeal succeeds. Again, the respondent contends that she is entitled to enjoy the fruits of her judgment, which right ought not to be denied. 8. Accordingly, the respondent contends that the applicant has not offered any security, and the application is aimed at delaying the conclusion of the matter. The respondent asserts that she shall suffer prejudice if the orders of stay are granted, and thus the application should be dismissed. 9. The application was canvassed by way of written submissions. 10. The applicant filed submissions dated **30/6/2026**. In the said submissions, the applicant states that he has met the conditions for grant of stay of execution pending appeal under **Order 42 Rule 6(2)** of the Civil Procedure Rules. That he filed the appeal approximately ten days after the judgment was delivered. 11. The applicants urged the court to be guided by the holding in ***Antoine Ndiaye -vs- African Virtual University [2015] KEHC 6783 (KLR), Butt -vs- Rent Restriction Tribunal [1979] KECA 22 (KLR, and Rhoda Mukuma -vs- John Abuoga [1988] eKLR.*** 12. The respondent relies on submissions dated **13/5/2026.** She has isolated a single issue for determination, to wit: whether the applicant has established sufficient cause for a stay of execution pending appeal under **Order 42 Rule 6** of the Civil Procedure Rules. The respondents submit that **Order 42 Rule 6(1)** provides that an appeal does not operate as a stay of execution. 13. Further, the respondent avers that under **Rule 6(2)** thereof, an applicant must satisfy that substantial loss may result unless the stay is granted; the application was made without unreasonable delay, and that security for due performance of the decree has been provided. 14. On the above legal provision, the respondent relies on the holding in ***Antoine Ndiaye*** *(supra),* ***Mohamed -vs- Muigai [2026] KEELC 3338 (KLR) and Nundu -vs- Mackenzie [2026] KEHC 2054 (KLR).*** 15. Further, the respondent submits that the applicant has not described the loss, identified any property exposed to execution, stated that the respondent lacks means, or explained why it would be impossible to restitute if the appeal succeeds. The respondent insists that there is no evidence of occupation, developments, crops, residence, income, or other circumstances from which substantial loss might be inferred. 16. The respondent also submits that the party and party bill of costs does not prove substantial loss, which loss is proved through cogent and tangible evidence as held in ***Mohamed*** *(supra)*. 17. Regarding whether the application is brought timeously, the respondent submits that the application has been filed after a delay of almost ten months after the judgment and eight months after the decree was issued. The applicant has not explained the reasons for the delay. Further, the respondent submits that the applicant waited three months after the bill of costs was filed to bring this application. On this hurdle, the respondent submits that the delay does not fall within the requirement in **Order 42 Rule 6(2)(a)** of the Civil Procedure Rules. 18. On the issue of security for the due performance of the decree, the respondent submits that the alleged security for costs **Kshs.6,000/=** paid in the Court of Appeal secures appellate costs under the Court of Appeal process and not under **Order 42 Rule 6(2)(b)** of the Civil Procedure Rules**.** 19. Relying on the holding in ***Jiwa & 289 others -vs- Official Receiver & 3 others [2025] KECA 1953 (KLR)***, the respondent submits that she ought to be allowed to enjoy the fruits of her judgment and this application ought to be dismissed. 20. It is trite law that the power of the court to grant a stay of execution of a decree pending appeal is discretionary. However, such discretion must be exercised judiciously as stated in the case of ***Butt*** *(supra).* 21. The principles governing the grant of stay of execution pending appeal are well settled under **Order 42 Rule 6(2)** of the Civil Procedure Rules. To succeed in an application for stay of execution or proceedings pending appeal, an applicant must demonstrate that the application has been brought without undue delay; substantial loss may result unless the order of stay is issued; and give security for the due performance of any decree or order that may ultimately be found to be binding on the applicant. 22. On the first hurdle, an applicant has to demonstrate through cogent evidence that unless the order of stay is issued, substantial loss shall ensue. The applicant has no evidence of loss demonstrated and has not told the court the current position on the ground. 23. In ***Kenya Shell Ltd -vs- Kibiru & Another [1986] KLR 410 [1986] KECA 94 (KLR***), the court observed that Substantial loss is what has to be prevented by preserving the status quo because such loss would render the appeal nugatory. 24. Mere apprehension of loss from lawful execution is not sufficient, as held in ***James Wangalwa & Another -vs- Agnes Naliaka Cheseto [2012] eKLR*** 25. In this application, the respondent has submitted, and I think rightly so, that the delay of over ten months is inordinate, and no plausible reasons have been given by the applicant. The law has not defined what unreasonable delay is; even a one-day delay could be inordinate in the circumstances of the case 26. *In* ***Arun C. Sharma -vs- Ashana Raikundalia t/a Raikundalia & Co. Advocates [2014] eKLR,*** the court held that security for costs guarantees the due performance of such decree or order as may ultimately be binding on the applicant. Even though failure to offer security may not be fatal as the court may impose it as a condition on its own motion, I find and hold that the applicant has failed the other tests set out under Order 42 Rule 6 of the Civil Procedure Rules. 27. The application dated **12/5/2026** is hereby dismissed with costs to the respondent. 28. 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 Ms. Keya for the plaintiff/respondent Ms. Mukanda holding brief for Mr. Nakitare for the 2nd defendant/applicant  **HON. G.M. GITONGA** **JUDGE, ELC KITALE.**