Nzuki & another v Musyoka (Environment and Land Appeal E043 of 2025) [2026] KEELC 4995 (KLR) (28 July 2026) (Ruling)

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT MACHAKOS** **ELC APPEAL NO. E043 OF 2025** **JONAH NGANDA NZUKI::::::::::::::::::::::::::::::::::::::::::1ST APPELLANT** **BENARD KISYOKA NZUKI::::::::::::::::::::::::::::::::::::::2ND APPELLANT** **VERSUS** **PATRICK MUSYOKA:::::::::::::::::::::::::::::::::::::::::::::::::RESPONDENT** **RULING** The application is dated 21st January 2026 and is brought under Order 51 Rule 1 and Order 10 Rules 10 &11 and Order 22 Rule 22 of the Civil Procedure Rules seeking the following orders; 1. That this Application be certified as urgent and service be dispensed with in the first instance 2. That the execution of the Judgement entered on 27th May, 2025 and the amended decree dated 18th December, 2025 and the Proclamation of Appellants/Applicants’ Goods dated 16th January, 2026 be stayed pending the Hearing and Determination of this Application. 3. That the Judgement entered on 27th May, 2025, the Amended Decree dated 18th December, 2025 and Warrants of Attachment dated and the Proclamation of the Appellants/Applicants' Goods dated 16th January, 2026 and all consequential Orders made in therein against the Appellants/Applicants be set aside pending the Hearing and Determination of the ELCA E043 of 2025 which appeal ensues from the judgement delivered on 27th May, 2025 in MCELC/ E099 of 2023. 4. That the costs of this application be costs in the cause. It is based on the following grounds that there is an Appeal on record issuing from the judgement delivered and dated 27th May, 2025 in MCELC E099 of 2023 wherein the Appellants/Applicants have appealed against the entire judgement by Hon. Koech (Mrs) (SPM). The Appellants/Applicants did not delay in filing the instant Appeal to the Environment and Land Court at Machakos which appeal was filed on 22nd July, 2025 as ELCA /E043 of 2025. The Respondent’s Advocate Messers Nyende & Company Advocates were served with the record of Appeal on 26th August, 2025. On 25th September, 2025 the Honorable Court directed that the Record of Appeal be served upon the Respondent. The Respondent engaged and instructed Anfield Auctioneers to attach and sell household goods to realize the Amended Decree dated 18th December, 2025 and judgement of the Honorable Court before Hon. Koech (Mrs) (SPM) delivered on 27th May, 2025. Anfied Auctioneers served the said proclamation to the Appellants/Applicants on 16th January, 2026 and which auction is supposed to be executed upon the lapse of seven (7) days which auction shall be carried out on the 22nd January, 2026. If the Respondent goes ahead to execute the judgement and the decree then the Appeal will have been rendered a nugatory. That unless the Orders sought are granted then the Appellants will be prejudiced and the Appeal would have been rendered a nullity. It is trite law that the Appellants/Applicants be accorded full and fair interparties hearing in court in the interest of Justice and fair play under the doctrine of the law of Natural Justice. The Respondent opposed the application and stated that the application for stay of execution has been brought inordinately with a delay of 8 months without reasonable explanation since the date of filing the memorandum of appeal. That a money decree cannot be rendered nugatory by the filing of an appeal. That no security has been offered for due performance of the decree. I have considered the application and submission therein. Applications for stay pending appeal are guided by the provisions of Order 42 Rule 6 which provides as follows; Order 42 Rule 6 (2) :- No order for stay of execution shall be made under subrule (1) unless— (a). 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 (b). 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. The Applicants need to demonstrate three elements. There must be demonstration that substantial loss will result if stay is not granted; secondly, the application must be made without unreasonable delay; and finally, there needs to be security for the due performance of the decree. Apart from the three elements, the essence of an application for stay pending appeal is aimed at preserving the subject matter of litigation to avoid a situation where a successful Appellant only gets a paper judgment. That said, it must be appreciated that the Respondent is a successful litigant who is entitled to benefit from the fruits of the judgment. The interests of both parties therefore need to be balanced as was stated by the Court of Appeal in the case of Reliance Bank vs Norlake Investments Ltd (2002) 1 EA 227**.** Let me first start with the issue of delay. In the judgement delivered and dated 27th May, 2025 in MCELC E099 of 2023 by Hon. Koech (Mrs) (SPM). She issued orders that the Appellants were to refund the Respondent within 90 days and in default specific performance was to issue. The court further granted 30 days of execution as per the court record. An amended decree was issued by the court on the 18th December 2025. The Appellants/Applicants filed the instant Appeal to the Environment and Land Court at Machakos which appeal was filed on 22nd July, 2025 as ELCA /E043 of 2025. This application is dated 21st January 2026 after the proclamation of their goods by an auctioneer in the satisfaction of the decree. This application for stay pending appeal has been filed after the period given to the defendants to comply with the decree. The question that arises is whether this application has been filed after unreasonable delay. What is unreasonable delay is dependent on the surrounding circumstances of each case. Even one day after judgment could be unreasonable delay depending on the judgment of the court and any order given thereafter. In the case of Christopher Kendagor v Christopher Kipkorir Eldoret E&L 919 of 2012the applicant had been given 14 days to vacate the suit land. He filed an application one day after the 14 days. The application was denied, the court holding that, the application ought to have come before expiry of the period given to vacate the land. In the case of money decrees the court in the case of **Kenya Shell Limited vs Kibiru (1986) KLR 410** stated as follows: ***“It is usually a good rule to see if Order XLI Rule 4 of the Civil Procedure Rules can be substantiated. 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”.*** The court also held at that; ***“It is not sufficient by merely stating that the sum of Shs 20,380.00 is a lot of money and the applicant would suffer loss if the money is paid. What sort of loss would this be? In an application of this nature, the applicant should show the damages it would suffer if the order for stay is not granted. By granting a stay would mean that status quo should remain as it were before judgement. What assurance can there be of appeal succeeding? On the other hand, granting the stay would be denying a successful litigant of the fruits of his judgement.”*** In **Machira T/A Machira & Co Advocates vs East African Standard (No 2) [2002] KLR 63** it was held that; *“****to be obsessed with the protection of an appellant or intending appellant in total disregard or flitting mention of the so far successful opposite party is to flirt with one party as crocodile tears are shed for the other, contrary to sound principle for the exercise of a judicial discretion. The ordinary principle is that a successful party is entitled to the fruits of his judgement or of any decision of the court giving him success at any stage. That is trite knowledge and is one of the fundamental procedural values which is acknowledged and normally must be put into effect by the way applications for stay of further proceedings or execution, pending appeal are handled. In the application of that ordinary principle, the court must have its sight firmly fixed on upholding the overriding objective of the rules of procedure for handling civil cases in courts, which is to do justice in accordance with the law and to prevent abuse of the process of the court.”*** I find that, where a party has been given a particular timeframe within which he should comply with a judgment, then he ought to apply to stay that judgment before that timeframe lapses. It is my considered view that an application for stay coming after the stated days for compliance with the judgment will constitute unreasonable delay, unless a good explanation is offered, giving reasons why the application has come after the period given for compliance. This is because there is a reason as to why the court considers a certain number of days to be reasonable for compliance with the judgment, and the continued non-compliance after the given duration, constitutes a violation of the judgment of the court. In the case of refund of the purchase price and in default specific performance of premises, the successful litigant is entitled to expect that the unsuccessful party will comply within the time given in the decree. Failure to transfer and continued occupation, beyond the period given is certainly possession that is illegal. The court does not condone an illegality. The reason that there ought not to be unreasonable delay for one to be entitled to stay pending appeal was not placed there in vain. It is incumbent upon a litigant to move with speed. In the instance of this case, the Appellants have not stated why they did not apply for stay within the 120 days timeframe given to them. There have not stated what irreparable damages they would suffer should execution proceed. It is my considered view that the Appellants have applied for stay of execution pending appeal after unreasonable delay. I find that the Applicants/Appellants are guilty of laches as judgement was delivered on 27th May 2025 and the application is dated 21st January 2026. I find that this application has come after unreasonable delay and is not merited and I dismiss it with costs. It is so ordered. **DELIVERED, DATED AND SIGNED AT MACHAKOS THIS 28TH DAY OF JULY 2026.** **N.A. MATHEKA** **JUDGE**