Ndungu & another v Nyairo (Environment and Land Appeal E019 of 2026) [2026] KEELC 5233 (KLR) (6 August 2026) (Ruling)

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT** **AT MILIMANI LAW COURTS, NAIROBI** **ELC APPEAL NO E019 OF 2026** **ESTHER WAMBUI NDUNGU…………………….………..1ST APPLICANT/APPELANT** **ISHMAEL ELISHA ESHITOKE……………..………….……..2ND APPLICANT/APPELANT** **-VERSUS-** **GILBERT ONGUSO NYAIRO………………………………...…………. RESPONDENT** **RULING** **Introduction** 1. The matter is coming up for determination of the Applicants Notice of motion application dated 11th February 2026 seeking the following orders; 2. **Spent.** 3. **THAT** this Honourable Court be pleased to issue an order of stay of execution of the Judgment and Decree in MCELC E190 OF 2025 as consolidated with MCELC E188, E450, E451, E452, E456, E457, E489 all of 2025 delivered on 28th January 2026 pending hearing and determination of the appeal. 4. The application was premised on grounds as in the supporting affidavit of Esther Wambui Ndungu. She deponed that the judgement had granted the Respondent orders of permanent injunction which she sought to challenge in the memorandum of appeal which raised arguable grounds. That unless the stay of execution is granted, the Respondent will execute the permanent injunction and the order as to costs will cause loss to the Applicant and further render the appeal nugatory. 5. The Respondent has not responded to the application and hence the application remains uncontroverted. 6. The application was canvassed by way of written submissions with the Applicant filing submissions dated 17th February 2026. Applicant/Appellant’s submissions 1. Counsel for the Applicant submitted on whether the appeal was arguable. It was his case that the issues raised in the memorandum of appeal were weighty being that it touched on the issue of the trial’s court jurisdiction to entertain the suit, the fact that the trial court had dismissed the Appellant’s defence and counter claim and the issuance of permanent injunctions to an estate administrator. 2. Counsel also submitted on the requirements for grant of stay of execution pending appeal as in **Order 42 Rule 6 (2) of the Civil Procedure Rules**. On the issue of substantial loss he indicated the Appellant had established substantial loss being that the permanent injunction was against the administrator of the estate and execution of the same would interfere with administration and management of the estate. That the Respondent may proceed to execute for costs which costs the Respondent has not established he will be able to pay back should the appeal succeed. He relied in the case of **Sewankambo Dickson Vs Ziwa Abby HTC-00- MA 0178 OF 2005.** Counsel submitted that that application had been made without undue delay and that the balance of convenience tilted in granting the orders as the Respondent will not be prejudiced. **Analysis and determination** 1. Having looked at the application, the responses thereto, the submissions and cited authorities, the issue for determination will be whether the application for grant of stay of execution is merited. 2. The law governing the grant of orders for a stay of execution pending appeal is codified under **Order 42 Rule 6 (1) and 2 of the Civil Procedure Rules**. **Sub Rule 2** reads; No order for a stay of execution shall be made under sub-rule (1) unless— 1. 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 2. 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. 3. Substantial loss is the cornerstone of an application for stay. In **Kenya Shell Limited Vs Benjamin Karuga Kibiru & another [1986] KECA 94 (KLR),** the Court of Appeal held that: -“*If there is no evidence of substantial loss to the Applicant, it would be a rare case when an appeal would be rendered nugatory by some other event. Substantial loss in its various forms, is the corner stone of both jurisdictions for granting a stay. That is what has to be prevented. Therefore, without this evidence it is difficult to see why the respondents should be kept out of their money.”* 4. The Applicants bear the burden of showing the substantial loss they are likely to suffer if no stay is ordered. This recognises that both parties have rights; the Appellants to their Appeal, including the prospect that it will not be rendered nugatory; and the decree holder to the decree, including the full benefits under the decree. In balancing the two competing rights, the Court focuses on their reconciliation, which is not a question of discrimination. Regarding substantial loss, the Appellants indicate that execution will cause loss to the estate of the deceased being that the administration and management of the estate will be interfered with. The Applicants are raising the issue of the estate being at a loss whereas the suit involved the Appellants in their individual capacity having carried out an unlawful distress for rent. The injunctive orders issued were to rectify the same and prevent the Appellants from disposing off the goods they took from the respondent. I hold the view that no substantial loss has been established in this instance. 1. There is the principle that execution of a lawful given decree does not automatically amount to substantial loss. A successful litigant is entitled to enjoy the fruits of his judgment. This principle was aptly stated in **Machira T/A Machira & Co. Advocates Vs East African Standard (No.2) [2002] KLR 63, where the court observed that**:-“*A successful party is entitled to the fruits of his judgment and should not be deprived of the same without just cause.”* 2. On delay, the judgment was delivered on 26th January 2026 and the application filed on 12th February, 2026 hence filed timely. 3. On security, **Order 42 Rule 6(2)(b)** of the **Civil Procedure Rules** is couched in mandatory terms. In **Focin Motorcycle Co. Limited Vs Ann Wambui Wangui & another [2018] KEHC 8358 (KLR),** the court held that: -“*In Arun C Sharma -V- Ashana Raikundalia T/A Rairundalia & Co. Advocates Justice Gikonyo the Court stated that: “The purpose of the security needed under Order 42 is to guarantee the due performance of such decree or order as may ultimately be binding on the Applicant. It is not to punish the judgment debtor……….Civil process is quite different because in civil process the judgment is like a debt hence the Applicants become and are judgment debtors in relation to the respondent. That is why any security given under Order 42 rule 6 of the Civil Procedure Rules Acts as security for due performance of such decree or order as may ultimately be binding on the Applicants. I presume the security must be one which can serve that purpose’’* 4. The Applicant has not offered any security for due performance of a decree 5. The three (3) conditions for granting stay of execution pending appeal must be met simultaneously. They are conjunctive and not disjunctive. It is my finding that the Applicants herein, though they brought this Application without undue delay They have not adequately demonstrated the substantial loss that they would suffer and have failed to furnish security as stipulated by sub-rule 2b hence do not meet the conditions of stay of execution **Final disposition** Accordingly, I make the following orders; 1. The Notice of Motion application dated 12th February 2026 lacks merit is hereby dismissed. 2. No order as to costs. **It is so ordered.** **DATED**, **SIGNED** and **DELIVERED** virtually at **NAIROBI** on this **6th** **day** of **August, 2026.** **MOHAMMED N. KULLOW** **JUDGE** **Ruling delivered in the presence of: -** **Mr. Ojienda** for the Appellant/Applicant **Ms. Mwende** for the Respondent **Ms. Mwangi** Court Assistant