New Oshwal Distributors Ltd v Moseti & 2 others (Environment and Land Case E001 of 2022) [2026] KEELC 4575 (KLR) (9 July 2026) (Ruling)

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT KISII** **ELC CASE NO. E001 OF 2022** **NEW OSHWAL DISTRIBUTORS LTD…………..1st PLAINTIFF/RESP** **VERSUS** **ALOYS MATAYA MOSETI…..…….… 1ST DEFENDANT/APPLICANT** **THE LAND REGISTRAR ………………………….…. 2ND DEFENDANT** **THE HON. ATTORNEY GENERAL……………….... 3RD DEFENDANT** **RULING** 1. For determination is an application dated 30th March, 2025 instead of 2026 by the 1st Defendant/applicant under the provisions of Order 42 Rule 6 and Order 51 Rule 1 of the Civil Procedure Rules. The Applicant is seeking orders of stay of execution of the judgment and decree rendered on 4th March, 2026 pending hearing of his intended appeal to the Court of Appeal. He also prayed that costs of the application be provided for. 2. The application is brought on the premises inter alia that the Applicant has sufficient cause for seeking an order of stay, averring that unless the stay is granted, his appeal will be rendered nugatory. He states that the application has been brought without undue delay. That the 1st Defendant/Applicant is apprehensive that the Plaintiff/Respondent is likely to dispose of and/or transfer the subject matter upon execution of the decree hence put it beyond the reach of the 1st Defendant/Applicant in the event he succeeds in the appeal. 3. The Applicant also swore an affidavit on 30th March, 2026 in support of the application. He annexed a notice of appeal lodged against the judgment. The Applicant deposes that he stands to suffer substantial loss in the event the orders of stay of execution is not granted; as he is likely to be evicted from the suit land; the Plaintiff/Respondent is likely to dispose of the suit property and/or change the nature/character of the suit property. 4. The Applicant stated that he is ready and willing to comply with the conditions for security for the due performance of the decree as may be directed by the Court. That it serves the interest of justice to grant the order sought. 5. The application is opposed by the Plaintiff/Respondent via a replying affidavit sworn by Kalpesh Nemchandbhai Haria on 27th April 2026. He deposed that; 6. *The default order issued by this Honourable Court was self-executing and has already crystallised - the applicant has been constituted into a trespasser.* 7. *If at all the applicant was desirous of obtaining a stay of execution he ought to have approached this court before expiry of the initial fourteen (14) days which he was afforded to vacate the suit property.* 8. *The applicant has approached the court from a contemnor's corner and ought not to be entertained.* 9. It is his averment that the applicant shall not suffer an iota of loss because the respondent has the financial means to make restitution in the (very unlikely) event that his intended appeal is successful. That from the evidence adduced, he demonstrated he paid Kshs 26,000,000 towards the purchase of the suit property. 10. The Respondent stated the Applicant filed the case in 2015 after the Respondent sought to take possession. Thereafter the Applicant obtained orders of interim injunction which has been in force and which he used to sustain his illegal occupation. That the Applicant has not stated how he intends to cushion the Respondent against further losses. He therefore deposed that the application be dismissed with costs. **Analysis and Determination:** 1. Both parties filed respective submissions in support of and against the application. I have read the same. The application was filed in March, the same month the judgment was delivered. The Respondent blames the Applicant for delay because it was filed after the 14 days the Applicant was granted to surrender vacant possession. Therefore, the Respondent deemed the Applicant is in contempt of the court decree and should not be heard on the prayers. It is true that the decree was self-executing, but the fact that the application was filed outside the 14 days does not, in my view, constitute the delay envisaged under Order 42 Rule 6(2) of the Civil Procedure Rules. 2. The Applicant explained in his affidavit the substantial loss he was likely to suffer- eviction and change of character of the subject matter of the dispute in execution of the decree. The respondent outlined the contents of the decree which granted her vacant possession and transfer of the suit title to her name. 3. Unless the orders of stay are granted, the execution is likely to change the status quo of the parties in relation to the suit property. Change of status quo was also considered as substantial loss as held in the case cited by the Applicant in **James Wangalwa & Another vs. Agnes Naliaka Cheseto [2012] eKLR**, that: **"No doubt, in law, the fact that the process of execution has been put in motion, or is likely to be put in motion, by itself, does not amount to substantial loss. Even when execution has been levied and completed, that is to say, the attached properties have been sold, as is the case here, does not in itself amount to substantial loss under Order 42 Rule 6 of the CPR. This is so because execution is a lawful process. The applicant must establish other factors which show 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 ... the issue of substantial loss is the cornerstone of both jurisdictions. Substantial loss is what has to be prevented by preserving the status quo because such loss would render the appeal nugatory.** 1. See also the citation by the Respondent in **Tropical Commodity Suppliers Ltd & Others v/s International Credit Bank Ltd (in liquidation) (2004) 2 E.A. 331** where Ogola J held that :- **" ... Substantial loss does not represent any particular mathematical formula. Rather, it is a qualitative concept. it refers to any loss, great or small, that is of real worth or value as distinguished from a loss without value or a loss that is merely nominal ... "** 1. This court has not found the Applicant to be in contempt because no such application has been brought before it. I find the circumstances of this case where there is already a notice of appeal distinguishable from decision of the Court of Appeal in the case of **Kithunzi v Kenya Airways Limited [2025] KECA 580 (KLR)** declined to fault a Judge's implementation of a self-executing order in the following passage in its judgment:- **“12. We first observe that the foundational order of Sergon, J. was neither appealed against, reviewed nor set aside. The order was simple and easy to understand and the appellant does not protest that he did not appreciate its implication. As framed, the order meant that the suit would stand automatically dismissed if any of the three conditions were breached.”** 1. The Respondent also submitted that the orders had already taken effect; however, it did not annex any evidence of occupation of the suit property and/or the title already registered in its name. 2. The last question is what kind of security should this court grant to cushion the Respondent who will be kept away from the fruits of his judgment. The Applicant deposed that he was ready and willing to comply with any conditions set by this court. In determining the kind of security to issue, Munyao Sila J (as he then was) dealing with a similar application in the case of **Kisii ELC E007 of 2023 Samuel Mokaya Momanyi and another vs Kevin Ong’era Ongwae & 3 Others** had this to say; “ **….it is correct that there was no substantial economic activity they (plaintiffs) were undertaking on the land but the fact that the stay granted means that if they wished to start any project, the same is stalled. …I am prepared to order the Applicant to deposit Kshs 3,000,000 to compensate the Plaintiff in terms of opportunity costs and time value as the appeal may take 2-3 years to be heard.”** 1. In the instant application, the Respondent deposed that he paid Kshs 26,000,000 as purchase price. If the application is granted, the Applicant will keep possession and title of the suit property until the appeal is determined. He has enjoyed the same position during the pendency of this suit, although the Respondent avers that he has been in possession by courtesy of an injunction obtained in an earlier suit filed in 2015. 2. Hence it is my considered view and I so hold that the Applicant does deposit security which I determine at the 50% of the amount the Respondent paid for the suit property. 3. Consequently, I do grant the Applicant orders of stay of execution on the condition that the 1st Defendant/Applicant deposit Kshs Thirteen Million (13,000,000) within 90 days of this order into a joint interest account to be opened forthwith in the names of the advocates for the Plaintiff/Respondent and the 1st Defendant/Applicant. If no account is opened within the 90-day period, the money is to be deposited in court on the day following (91st day). In default, the orders of stay of execution granted automatically lapse. 4. The costs of the application to abide the winner in the appeal. **Ruling dated, signed and delivered at Kisii this 9th day of July, 2026.** 1. **OMOLLO** **JUDGE**