https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4944

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT KISUMU** **ELC APPEAL NO. E005 OF 2021** **CHARLES OTIENO NYATURI1ST APPELLANT/APPLICANT** **JOHN OTIENO OMIERI2ND APPELLANT/APPLICANT** **KENNEDY OMONDI OMIERI3RD APPELLANT/APPLICANT** **PETER ODHAMBO OMIERI4TH APPELLANT/APPLICANT** **=VERSUS=** **LEOTINE MALALA1ST RESPONDENT** **MILICENT MALALA2ND RESPONDENT** **RULING** 1. Before this Court is the Appellants'/Applicants' Notice of Motion dated 30th April 2026, expressed to be brought under the **Environment and Land Court Act, Sections 1A, 1B and 3A of the Civil Procedure Act, the Civil Procedure Rules and Article 159 of the Constitution of Kenya.** The Motion seeks the following orders: **a) spent…** **b) That the order made on 17th February 2022 dismissing the appeal be set aside and the appeal be reinstated;** **c) That pending the hearing and determination of the application there be a stay of execution and proceedings in Tamu MC Land Case No. 2 of 2017;** **d) That pending the hearing and determination of the appeal there be a stay of execution and proceedings in Tamu MC Land Case No. 2 of 2017; and** **e) That costs of the application be provided for.** 2. The application arises from a protracted dispute over the parcels of land known as Title Nos. Kisumu/Koru/280 and Kisumu/Koru/680 (“the suit properties”) between the family of the late John Malala Ojunga on the one hand and the family of the late Thomas Onyando Omieri on the other. The Respondents herein, as the registered proprietors of the suit properties, instituted Tamu MCELC Case No. 2 of 2017 seeking the eviction of the Appellants and others whom they claimed to be trespassers on the suit properties. 3. By a judgment delivered on 18th January 2021, Hon. Onzere E.M. (Principal Magistrate) found that the suit properties were lawfully registered in the names of the Respondents, that the sale agreement of 20th March 1986 between Thomas Onyando Omieri and John Malala Ojunga was valid, and that the defendants (who included the Appellants herein) were on the suit properties illegally. The trial court ordered the defendants to vacate the suit properties within sixty (60) days, in default of which an eviction order would issue to be supervised by the O.C.S. Koru Police Station, permanently restrained them from interfering with the Respondents' possession, and awarded the Respondents costs of the suit. 4. Aggrieved by that judgment, the Appellants preferred the instant appeal vide a Memorandum of Appeal dated 29th January 2021. It is common ground that the appeal was subsequently dismissed for want of prosecution by Hon. Justice Antony O. Ombwayo. I note that whereas the Replying Affidavit and the Case Tracking System extract annexed thereto (Exhibit LM-2) make reference to a dismissal on 2nd May 2022, both parties in their respective submissions, and indeed the Applicants in prayer 2 of the Motion itself, proceed on the footing that the operative dismissal order was made on 17th February 2022. Nothing of substance turns on that discrepancy, and I shall adopt 17th February 2022 as the date of dismissal. 5. Following the dismissal of the appeal, the trial court, by an order dated 19th January 2023 by Hon. A.K. Mokoross, Principal Magistrate, granted the Respondents leave to evict the Appellants from the suit properties and directed the O.C.S. Koru Police Station to provide security during the eviction. The Respondents aver that the eviction was carried out on or about 30th April 2026 in execution of that order. **The application** 6. The Motion is premised on the grounds on its face and on the Supporting Affidavit of Kennedy Omondi Omieri, the 3rd Applicant, sworn on 30th April 2026. In summary, the Applicants contend that: their erstwhile Advocate, whom they had instructed and paid to prosecute the appeal, informed them that he had not filed the appeal; one of the said Advocate's clerks told them that the appeal could not be filed because fourteen (14) days had lapsed since delivery of the judgment; they believed that information; it was only in November/December 2025 that the deponent was informed by his uncle, Francis Otieno Onyando, that the appeal had in fact been filed and was dismissed in 2022; they could not file the present application immediately thereafter due to lack of money to pay legal fees; the Respondents, through their sons Robinson Malala and Gerald Malala, are in the process of evicting them and other family members of the late Thomas Onyando Omieri from the suit properties; and there are other pending cases over the same parcels, namely ELC No. E061 of 2025, ELCA No. E073 of 2025, MC Land Case No. E176 of 2023 (all in Kisumu) and Tamu Land Case No. E024 of 2025. 7. The Applicants further contend that they are grandsons of the late Thomas Onyando Omieri, the original allottee of the suit properties; that their residences are on the suit properties which they use for sugarcane farming; that the Respondents have never physically occupied or used the plots and have already recovered Kshs. 550,000/= by harvesting sugarcane from the suit properties pursuant to the award of the Land Disputes Tribunal in Case No. 2 of 1996 (annexed as Exhibit KOO-2); that there have been attempts to kill the Applicants and/or their relatives by arson, leading to the arraignment of Gerald Malala in Criminal Case No. E058 of 2026; and that the dismissal of the appeal was not attributable to any fault on their part but to that of their Advocate. The deponent annexed as Exhibit KOO-1 receipts issued by Mwamu & Company Advocates evidencing payment of legal fees, being a receipt dated 17th May 2021 for Kshs. 15,000/= (for extracting an order), a receipt dated 24th January 2022 for Kshs. 50,000/= (indicated as “ELC Case”) and a receipt dated 14th December 2022 for Kshs. 40,000/= (indicated as “Land Case”). **The Respondents' response** 8. The application is opposed through the Replying Affidavit of Leotine Malala, the 1st Respondent, sworn on 22nd May 2026. She deposes that Tamu MCELC No. 2 of 2017 was filed by herself and the 2nd Respondent seeking the eviction of the Appellants and others who had trespassed on the suit properties; that the trial court delivered judgment in their favour, reaffirming their proprietary rights and issuing an eviction order; that the Appellants, having appealed against that judgment, were afforded various mention dates and were duly served with notices to appear but failed, refused and/or neglected to attend to their matter, whereupon the appeal was dismissed; and that the present application for reinstatement has been made more than four (4) years after the dismissal. 9. The 1st Respondent further deposes that the Applicants have merely attributed the delay to a breakdown of communication and ignorance, which do not negate the duty of a litigant to actively follow up on their matters in court; that the delay is inordinate, excessive and unsatisfactorily explained; that the Applicants have not placed any material before the Court demonstrating arguable grounds of appeal; and that granting reinstatement some four years after dismissal would be prejudicial to the Respondents, as litigation must come to an end. 10. Significantly, the 1st Respondent chronicles what she terms incessant forum shopping by the Applicants and other members of the family of the late Thomas Onyando Omieri in pursuit of orders staying execution of the judgment in Tamu MCELC No. 2 of 2017, namely: a) An application dated 9th April 2025 in Tamu MCELC No. 2 of 2017 by Maria Auma Onyando and Francis Otieno Onyando seeking, inter alia, setting aside of the proceedings, joinder as defendants and stay of execution, which was dismissed with costs by Hon. A.K. Mokoross vide a ruling delivered on 7th August 2025 (Exhibit LM-4); b) Kisumu ELCA No. E073 of 2025, an appeal against the said ruling, in which an application dated 8th August 2025 seeking a stay of execution of the judgment in Tamu MCELC No. 2 of 2017 was dismissed by Hon. Lady Justice E. Asati vide a ruling delivered on 20th November 2025 (Exhibit LM-5); c) Kisumu ELC Suit No. E003 of 2025 (O.S.), filed by members of the said family claiming proprietary rights over the suit properties, in which an application dated 21st January 2025 seeking stay of proceedings and execution was dismissed by Hon. Justice S. Okong'o vide a ruling delivered on 9th October 2025 (Exhibit LM-6), whereafter the entire suit was withdrawn vide a Notice of Withdrawal dated 9th October 2025 (Exhibit LM-7); and d) Kisumu ELCLC No. E061 of 2025, filed by the legal representatives of the estate of the late Thomas Onyando Omieri seeking a declaration of proprietary rights over the suit properties, in which an application dated 9th October 2025 seeking, inter alia, a stay of execution of the judgment in Tamu MCELC No. 2 of 2017 was dismissed by Hon. Lady Justice E. Asati vide a ruling delivered on 5th March 2026 (Exhibit LM-8). 11. The 1st Respondent deposes that it is upon the failure to obtain stay orders in all the foregoing matters that the Applicants filed the instant application; that the application is frivolous, vexatious, bad in law and an abuse of the court process; and that her family has suffered irreparable loss and damage for the past four decades since the suit properties were purchased. **The Further Affidavit** 12. In a Further Affidavit sworn on 30th June 2026, Kennedy Omondi Omieri reiterates that the Applicants were interested in the appeal and maintains the explanation earlier given for its non-prosecution and for the four-year delay in bringing the application. He deposes, on the advice of his Advocates, that the dismissal of the appeal was not in accordance with the law because the appeal had not been admitted at the time it was dismissed; that it is not for the court, at the reinstatement stage, to concern itself with the appeal's chances of success; that the issue for determination in Tamu MCELC No. 2 of 2017 was not ownership per se but encroachment and/or trespass; that the Applicants have not been forum shopping since the other cases were filed by Maria Auma Onyando and others in their own capacity as beneficiaries of the estate of Thomas Onyando Omieri; and that the filing of those cases should not be used to deny the Applicants access to justice. **Submissions** 13. The application was canvassed by way of written submissions pursuant to the directions issued on 7th May 2026. The Applicants filed submissions dated 26th June 2026 through the firm of Obara & Obara Advocates, while the Respondents filed submissions dated 3rd July 2026 through the firm of Ben Aduol Nyanga & Co. Advocates. 14. Counsel for the Applicants submitted that the Applicants gave reasons why the application was not filed as soon as the appeal was dismissed; that the Court should not hold the multiplicity of cases against them since the only case in which the Applicants are parties is Tamu Land Case No. 2 of 2017, whose judgment is the subject of the appeal, the other suits having been filed by the beneficiaries of the late Thomas Onyando Omieri in their own right pursuant to the award of the Land Disputes Tribunal in Case No. 2 of 1996; and that the Respondents will suffer no prejudice if the appeal is reinstated as they are not in occupation, use and possession of the suit properties despite holding a judgment in their favour. 15. Counsel further submitted that on 5th May 2021 the Respondents' Advocate did not oppose the status quo being maintained and admitted that the Applicants were in occupation; that the dismissal of the appeal before its admission was irregular and contrary to Section 79B of the Civil Procedure Act and Order 42 Rules 12 and 18 of the Civil Procedure Rules; that the Applicants have shown sufficient, verifiable and valid reasons why the appeal was not prosecuted, namely that their Advocates were uncommunicative; and that the dismissal of an appeal is a draconian order which the Court should not allow to stand, particularly where the subject matter is land. Counsel placed reliance on the decision of the Court of Appeal in **Route 3 Company Limited & Another v Nairobi City County & Another (Civil Appeal (Application) 188 of 2019) [2025] KECA 315 (KLR), which reiterated, citing CMC Holdings Ltd v James Mumo Nzioka [2004] KLR 173**, that the discretion to set aside an ex parte order is meant to ensure that a litigant does not suffer injustice or hardship as a result of an excusable mistake or error, and that the mistake of an Advocate should not be visited upon the client. Counsel urged the Court to reinstate the appeal for the ends of justice. 16. Counsel for the Respondents identified two issues for determination: whether the Applicants have demonstrated sufficient grounds for a stay of execution of the judgment in Tamu MCELC No. 2 of 2017, and whether they have demonstrated sufficient grounds for reinstatement of the appeal. 17. On stay of execution, Counsel relied on **Order 42 Rule 6(2) of the Civil Procedure Rules, Butt v Rent Restriction Tribunal [1982] KLR 417, Raeli Hydro Systems Limited v Ouko [2024] KEHC 5124 (KLR) and James Wangalwa & Another v Agnes Naliaka Cheseto [2012] KEHC 1094 (KLR),** submitting that substantial loss is the cornerstone of a stay of execution and that the Applicants merely asserted, without demonstrating, that they stand to suffer irreparable and/or substantial loss. Counsel submitted that the Applicants are in any event no longer in possession of the suit properties, having been lawfully and procedurally evicted on or about 30th April 2026 under the supervision of the O.C.S. Koru Police Station in strict compliance with the eviction order issued on 19th January 2023, such that the judgment stands fully executed; that the application for stay was brought more than five years after the judgment; that no security has been offered and the costs awarded in the lower court remain unpaid; and that, relying on **Kenya Tea Growers Association & Another v Kenya Plantation and Agricultural Workers Union [2012] KECA 231 (KLR) and Odhiambo v Kisang & 3 Others (Cause E089 of 2023) [2025] KEELRC 1587 (KLR),** the Applicants have demonstrated no arguable appeal and the conditions for stay, which are conjunctive, have not been met. 18. On reinstatement, Counsel traced the history of the appeal: that upon a mention for directions on 5th May 2021, the court directed the Appellants to file their Record of Appeal within thirty (30) days and gave a further mention date of 22nd September 2021; that on 22nd September 2021, the Record of Appeal not having been availed or served, the court directed that the appeal be canvassed by way of written submissions, ordered the Appellants to file and serve the Record of Appeal together with their submissions within thirty (30) days, fixed judgment for 10th February 2022 and warned that the appeal would be struck out for want of prosecution in default of compliance; and that on 17th February 2022, the Appellants having filed neither the Record of Appeal nor submissions and having offered no explanation, the court dismissed the appeal for want of prosecution. Counsel submitted that the dismissal was in strict compliance with **Order 42 Rule 35(2) of the Civil Procedure Rules,** citing **Jurgen Paul Flach v Jane Akoth Flach [2014] KEHC 5269 (KLR)** on the two scenarios contemplated by the rule. 19. Counsel further submitted that the present application was brought more than four years after the dismissal; that blaming the Advocate does not negate the litigants' own duty to actively follow up on their matter, in support of which Counsel cited **Olumbe v Obanyi (Civil Appeal E014 of 2024) [2025] KEHC 5386 (KLR),** where Hon. Justice W. Musyoka observed that the suit belongs to the litigant, who has a duty to pursue prosecution of their case and to constantly check with their Advocates on the progress of the matter, and **Duale Mary Anne Gurre v Amina Mohamed Mahamood & Another [2014] eKLR** to similar effect; that the Applicants cannot feign ignorance of the proceedings in the appeal when they were simultaneously pursuing several cases and applications over the same subject matter, including a Notice of Motion dated 7th December 2023 filed in Tamu MCELC No. 2 of 2017 which was dismissed vide a ruling dated 5th March 2024; that the application is aimed at re-litigating a settled issue and amounts to forum shopping; and that reinstatement would be prejudicial to the Respondents, who have taken possession of the suit properties. Counsel urged the Court to dismiss the application with costs. **Analysis and Determination** 20. I have considered the application, the affidavits in support and in opposition, the annexures thereto, the rival submissions of Counsel and the authorities cited. In my view, the following issues fall for determination: **i. Whether the order made on 17th February 2022 dismissing the appeal for want of prosecution should be set aside and the appeal reinstated;** **ii. Whether an order of stay of execution and of proceedings in Tamu MCELC No. 2 of 2017 should issue; and** **iii. Who should bear the costs of the application.** **i. Whether the appeal should be reinstated** 21. The power to set aside a dismissal for want of prosecution and to reinstate an appeal is discretionary. The discretion is, however, not exercised capriciously; it exists to avoid injustice or hardship resulting from accident, inadvertence or excusable mistake or error, and not to assist a party who has deliberately sought, whether by evasion or otherwise, to obstruct or delay the course of justice: **Shah v Mbogo & Another [1967] EA 116. The Court of Appeal in CMC Holdings Ltd v James Mumo Nzioka [2004] KLR 173 (cited with approval in Route 3 Company Limited & Another v Nairobi City County & Another (supra),** on which the Applicants rely) expressed the same principle: the court should not turn its back on a litigant who clearly demonstrates an excusable mistake, inadvertence, accident or error. The corollary is equally true: where no excusable mistake is demonstrated, and where the delay in seeking reinstatement is itself inordinate and unexplained, the discretion is not available to be exercised in the applicant's favour. 22. An applicant seeking reinstatement of an appeal dismissed for want of prosecution must therefore satisfy the court, first, that the failure to prosecute the appeal was occasioned by a plausible and excusable cause; secondly, that the application for reinstatement has itself been brought without unreasonable delay, or that any delay is satisfactorily explained; and thirdly, and as part of the overall justice of the matter, the court will weigh the prejudice to the opposite party and the public interest in the finality of litigation. 23. I begin with the explanation offered for the failure to prosecute the appeal. The Applicants' account, as set out in the Supporting Affidavit, is that they instructed Mr. Mwamu, Advocate, to file the appeal and paid legal fees; that the Advocate later informed them that he had not filed the appeal; that a clerk in his office told them the appeal could not be filed because fourteen (14) days had lapsed since delivery of judgment; and that they believed this and only learnt in November/December 2025, from the deponent's uncle, that the appeal had in fact been filed and dismissed in 2022. 24. That account does not survive contact with the record. First, the Memorandum of Appeal is dated 29th January 2021, a mere eleven days after the judgment of 18th January 2021, and was duly filed; the premise of the clerk's alleged advice, that the time for appealing had lapsed, is therefore demonstrably false, as is the alleged information that no appeal was filed. Secondly, the uncontroverted chronology set out in the Respondents' submissions is that Counsel appeared for the Appellants at the mentions of 5th May 2021 (Mr. Omondi T.) and 22nd September 2021 (Ms. Ogola), when directions for the filing of the Record of Appeal and written submissions were given and a judgment date fixed, with an express default warning. The Applicants were therefore represented before this Court in the appeal on at least two occasions after the date on which they say they were told the appeal did not exist. Thirdly, and most tellingly, the Applicants' own exhibit KOO-1 comprises receipts issued by Mwamu & Company Advocates dated 17th May 2021 (Kshs. 15,000/= for extracting an order), 24th January 2022 (Kshs. 50,000/= for an “ELC Case”) and 14th December 2022 (Kshs. 40,000/= for a “Land Case”). The Applicants were thus engaging and paying the very Advocate whom they now blame, both shortly before and some ten months after the dismissal of the appeal. A party who continued instructing and paying counsel throughout 2021 and 2022 cannot plausibly claim to have believed, throughout that period and for three years thereafter, that no appeal existed. 25. The account is accordingly internally inconsistent and inconsistent with the record. Only two possibilities present themselves, and neither assists the Applicants. Either the Applicants knew of the appeal and simply failed to prosecute it, in which case there is no excusable mistake at all; or they genuinely abandoned all interest in the matter for over four years without once checking on a dispute concerning the very land on which they claim to reside, in which case they fell woefully short of the duty of a litigant to follow up on their own case. As Musyoka J. put it in **Olumbe v Obanyi (supra),** the suit belongs to the litigant, who has a duty to pursue the prosecution of their case and to constantly check with their Advocates on the progress of the matter; a similar position was taken in **Duale Mary Anne Gurre v Amina Mohamed Mahamood & Another (supra).** The principle that the mistake of an Advocate should not be visited on the client is not a blanket panacea available to every litigant who elects to remain supine; it presupposes a diligent litigant let down by counsel, and it must always be weighed against the explanation given and the conduct of the party invoking it. 26. **Route 3 Company Limited (supra),** on which the Applicants place considerable reliance, is readily distinguishable. In that case the application for reinstatement was brought promptly, within the thirty-day window prescribed by Rule 58(3) of the Court of Appeal Rules; counsel had a demonstrated history of diligent attendance and had repeatedly sought to have the application listed; and the default was a single non-attendance attributed to a dropped virtual call. Here, by contrast, the default was a sustained failure over some nine months to comply with directions given in the presence of the Appellants' own counsel and despite an express warning that the appeal would be struck out; and the application for reinstatement was then brought more than four years after the dismissal. 27. That brings me to the delay in bringing this application, which is an independent and, in my view, insuperable hurdle. The appeal was dismissed on 17th February 2022. The present application was filed on 30th April 2026, a period of over four years and two months. Even if I were to take the Applicants' account at its highest and treat November/December 2025 as the date of knowledge, a further period of approximately five months elapsed before the application was filed, explained only by a bare assertion of lack of money to pay legal fees, unsupported by any particulars. Impecuniosity, baldly asserted, has never been a satisfactory explanation for delay in approaching the court, and it rings particularly hollow from parties who, on the material before this Court, were during the same general period actively litigating, personally or through their close family, in no fewer than four other proceedings over the same parcels. The delay is inordinate, excessive and has not been satisfactorily explained. 28. The Applicants sought, in the Further Affidavit and in submissions, to impugn the dismissal itself as irregular, contending that the appeal had not been admitted and could therefore not be dismissed, contrary to **Section 79B of the Civil Procedure Act and Order 42 Rules 12 and 18 of** **the Civil Procedure Rules.** I am unable to accept that contention in the circumstances of this case, for three reasons. First, the argument appears nowhere in the Motion itself, which is anchored on the alleged fault of the Advocate; it surfaced for the first time in the Further Affidavit as advice of counsel. Secondly, the record shows that the court had squarely engaged with the appeal on its merits path: it gave directions on 5th May 2021 for the filing of the Record of Appeal, and on 22nd September 2021 it directed that the appeal be canvassed by way of written submissions and fixed a judgment date. Those are directions of the kind contemplated by Order 42 of the Civil Procedure Rules for the disposal of an appeal, and they are wholly inconsistent with the notion that the appeal was still awaiting the threshold of admission. What stood between the Appellants and the hearing of their appeal was not any omission of the court but their own failure to place the Record of Appeal before it. **Order 42 Rule 35(2)** empowers the court, where an appeal has not been set down for hearing within one year after service of the memorandum of appeal, to list it for dismissal, and the dismissal of 17th February 2022 followed precisely that course after express warning. Thirdly, and in any event, if the Applicants' true complaint is that the dismissal order was made without jurisdiction or in breach of mandatory procedure, their remedy lay in a timeous application for review or an appeal against that order; it cannot be smuggled, four years later, into an application for reinstatement whose very premise is that the order was regularly made but should be discharged in the exercise of discretion. 29. I have also considered whether the Applicants have demonstrated an arguable appeal, that being a relevant, though not decisive, consideration in the exercise of the discretion. The Applicants' response, in the Further Affidavit, was that it is not for the court at this stage to consider the appeal's chances of success. While it is true that the court does not conduct a merits review, an applicant who seeks the indulgence of resuscitating a long-dead appeal must at the very least show that the appeal raises a bona fide issue deserving of determination. The Applicants placed nothing before this Court, no draft or filed Record of Appeal, no engagement with the grounds in the Memorandum of Appeal, and no answer to the careful findings of the trial court on the validity of the 1986 sale agreement and the Respondents' registered titles. I further note that the substratum of the intended appeal has since been traversed, adversely to the Applicants' family, in a succession of rulings: by Hon. Mokoross on 7th August 2025, by Okong'o J. on 9th October 2025, and by Asati J. on 20th November 2025 and 5th March 2026. Nothing was demonstrated to this Court to suggest that the appeal is anything other than a further attempt to keep alive a contest that has been resolved and re-resolved. 30. Finally, on this issue, I must weigh the prejudice to the Respondents and the public interest in finality. The dispute over these parcels has, on the material before me, been litigated in one forum or another since at least 1989. The Respondents hold registered titles which the trial court, after a full hearing in which the Appellants participated and testified, found to be legitimate. The eviction order has, on the Respondents' account, been executed. The family of the late Thomas Onyando Omieri has, through various members, mounted successive and uniformly unsuccessful attempts to stay or unravel the judgment in Tamu MCELC No. 2 of 2017. While the Applicants are correct that they, personally, were parties only to the Tamu suit and this appeal, the pattern of proceedings over the same parcels, prosecuted by the same family and in some instances supported by affidavits of the same deponents, is a matter this Court is entitled to take into account in assessing where the interests of justice lie. Litigation must come to an end. Reinstating this appeal, more than five years after the judgment appealed from and more than four years after its dismissal, would visit substantial prejudice on the Respondents and would reward, rather than remedy, indolence. 31. I have not overlooked the grave allegations of arson and attempts on the lives of the Applicants and their relatives, and the reference to Criminal Case No. E058 of 2026. Those allegations, if true, are deeply regrettable, but they are matters squarely within the province of the criminal justice system and cannot found the reinstatement of a civil appeal. Equally, nothing in this ruling is to be understood as sanctioning any extra-judicial or self-help measures in relation to the suit properties; execution of court orders must at all times proceed strictly through lawful process, and any grievance as to the manner of execution is to be pursued before the appropriate forum. 32. The upshot is that the Applicants have failed to demonstrate any excusable mistake, accident or inadvertence; the delay in seeking reinstatement is inordinate and unexplained; no arguable appeal has been demonstrated; and the balance of justice tilts decisively against the grant of the orders sought. The prayer for reinstatement of the appeal fails. **ii. Whether a stay of execution and of proceedings should issue** 33. The prayers for stay of execution and of proceedings in Tamu MCELC No. 2 of 2017 were sought pending the hearing of the application and of the appeal respectively. Having declined to reinstate the appeal, the anchor for any stay falls away: the power under **Order 42 Rule 6 of the Civil Procedure Rules** is predicated upon the existence of a pending appeal, and there is none. That alone disposes of the prayers. 34. Even on their merits, the prayers could not succeed. **Under Order 42 Rule 6(2),** an applicant must demonstrate that substantial loss may result unless the order is made, that the application has been made without unreasonable delay, and that they are ready to furnish such security as the court may order; the conditions are conjunctive: **Butt v Rent Restriction Tribunal (supra).** The application was brought more than five years after the judgment sought to be stayed, no security was offered, and substantial loss was baldly asserted rather than demonstrated: **James Wangalwa & Another v Agnes Naliaka Cheseto (supra).** Moreover, on the Respondents' uncontroverted averment in submissions, the eviction order was executed on or about 30th April 2026, such that the judgment stands substantially executed; a stay would in those circumstances be an order in a vacuum. The prayers for stay accordingly fail. **iii. Costs** 35. Having considered the circumstances of the application, I direct that each party to bear own costs of the application. **Disposition** 36. In the end, and for the reasons set out above, the Court makes the following orders: **I. The Notice of Motion dated 30th April 2026 is hereby dismissed;** **II. Each party to bear own costs of the application.** **DATED, SIGNED AND DELIVERED VIRTUALLY AT KISUMU THIS 30TH DAY OF JULY 2026.** **E. K. WABWOTO** **JUDGE** **In the presence of:** **Mr. Obara for the Appellants/Applicants.** **Mr. Akira h/b for Mr. Nyanga for the Respondents.** **Court Assistant; Joanne Omondi.**