https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4685

**THE REPUBLIC OF KENYA IN THE ENVIRONMENT AND LAND COURT AT HOMABAY ELC APPEAL NO. EO45 OF 2022** **MARY ANYANGO OKWARO (Suing as the Legal Administratix of the estate of the late BENJAMIN OKWARO ESITIKA) =======================================APPLICANTS -VERSUS- JOSEPH ODONGO OPIYO ========================RESPONDENT BEFORE: HON. JUSTICE J. W. WANYONYI RULING** **A. INTRODUCTION:** 1. The Applicants brought this application Under certificate, by notice of motion, under Order 42 Rule 6(1), (2) & (6) of the Civil Procedure Rules, Section 1A, B,3A & 63(e), Section 7, 13(7),19 and 26 of the Environment and Land Court Act, Article 27(1), 47, 48 (1), 159 & 162 of the Constitution and Section 73 of the Land Registration Act. 2. Spent 3. Spent 4. The Honorable court be pleased to grant an order of stay of Execution of the Judgement and Decree of this Court, dated and delivered of the 11th December,2025 and any other consequential orders and in particular, the Implementation of the Limb and /or aspect thereof, that may lead to the Eviction and /or otherwise removal of the Respondent/ Applicant by themselves Employees and/or Kinsmen from **LR NO. HOMABAY /KAWEREKONYANGO/KARADING /341** (hereinafter referred to as the suit property) together with all consequential orders, pending the hearing the hearing and determination of the intended Appeal to the Honorable Court of Appeal. 1. The Honorable court be pleased to grant an order of inhibition inhibiting any dealings, and /or transactions over and or/ in respects of **LR NO. HOMABAY** /**KAWERE KONYANGO /KARADING 3413**(hereinafter referred to as the suit property) and in particular, restricting and inhibiting, restricting and or/or inhibiting the sub-division, Sale, Charge, alienation and /such other transactions that may affect and /or otherwise vitiate the title of the property pending the hearing the hearing and determination of the Intended Appeal to the Honorable Court of Appeal 2. The Honorable court be pleased to rant such further and /or other orders as may be deemed just, appropriate and /or Expedient be granted (6) Costs of the Application do abide by the intended Appeal 3. The application is based on twenty (24) grounds on the face of the Application and supported by the affidavit of Joseph Odongo Opiyo which contains 24 paragraphs and has four annextures annexed thereto. **B. BACKGROUND:** 4. The uncontested facts of this case are that the Appellant instituted **Ndhiwa SRMCC** ELC **NO 14 OF 2020** seeking orders of inter alia, eviction of the Respondent from the suit parcel while on the other hand the Respondent/Applicant had filed a claim against the Respondent for adverse possession in **Migori ELC CASE NO 38 OF 2020(O.S)** 5. The two suits were consolidated and heard simultaneously at Ndhiwa and proceedings were conducted in Ndhiwa SRMCC ELC No 14 of 2020 whereby Judgement was made in favour of the respondent and the Appellant’s claim on trespass was struck out. 1. Dissatisfied with the judgment, the Appellant filed the instant appeal which was heard and determined. He says that notwithstanding that the judgment and Decree of this Honorable court, he has been occupation, use and possession of the suit property notwithstanding that the title is in the name of the Appellant, that he is aggrieved with the Judgment and the Decree and instructed his Advocate to lodge an appeal and he has done so by filing a notice of Appeal ; that his Advocate has applied for typed copies of proceedings and Judgment ; that as of now the Appellant is conferred with powers to alienate and or dispose of the suit property to his detriment and there is a threatened eviction which is likely to be carried out during the pendency of the intended appeal which raises weighty and arguable issues.; that unless stay is granted he shall be exposed to and suffer irreparable loss , that the suit property is likely to be disposed of to third parties , that the Appellant has taxed his bill of costs and execution may be carried out any time ,and that he is ready to deposit security. 2. He has attached a copy of the Decree, copy of the Judgement, photographs and the notice of appeal and letter for proceedings. 3. **The Applicants’ case:** The gist of the Applicants’ case, as set out in the Application, supported by the affidavits of the Applicant (in support of the application and in rejoinder), is that he is in occupation of the suit land and yet there is eminent threat of execution by the Respondent a notice to show cause why execution should not issue has already been issued. 4. **The Respondent’s case**: on the other hand, as can be discerned from the affidavit in reply sworn by the Respondent, is that this application is misconceived and that the Applicant has failed to disclose material facts .The respondent asserts that costs have been taxed and the application for stay is a mere afterthought ; that he has sold and transferred the said property to a third party, that the application has been overtaken by events , that the applicant has failed to demonstrate any substantial loss, that mere allegations of homelessness do not constitute sufficient grounds for stay; that the intended appeal does not raise arguable or triable issues, that the applicant has failed to offer any tangible ,credible or sufficient security for due performance and that litigation must come to an end the respondent has annexed a copy of the bill of costs. 5. **COURT DIRECTIONS, LEGAL REPRESENTATION ANDSUBMISSIONS:** 6. On 23rd March, 2026 the court gave directions in the presence of **Mulisa of Oguttu Mboya, Ochwal & Partners and Ogwe of Ogwe & Associates Advocates.** Time lines were granted for filing and serving submissions, and in the interim the court granted an inhibition order. 7. I shall refer to the submissions in the course of determining this matter. 8. **ANALYSIS AND DETERMINATION OF THE COURT:** 9. It is the procedure of the Courts that after judgment is delivered and a decree has been extracted under Section 29 of the Civil Procedure Act and Order 22 of the Civil Procedure Rules, the Court may, on application of the decree holder, order the execution of theDecree in any of the modes set out in section 38 of the Civil Procedure Act. The legal Word ‘execution’ in its widest sense signifies the enforcement of or the giving effect to the Judgment or order. 10. An order of stay of execution pending appeal delays the enforcement /implementation of or the giving effect to the judgment or orders of Court pending the outcome of the appeal. The general principle is that where an unsuccessful party is exercising their unrestricted right to appeal, it is the duty of the Court to make such order for staying proceedings in the judgment appealed from as will prevent the appeal from being rendered nugatory. An application for stay of execution pending appeal is therefore designed to preserve the subject matter in dispute so that the right of the appellant who is exercising his/her undoubted rights of appeal are safeguarded and the appeal if successful, is not rendered nugatory. 11. I note that there is no specific legislation providing for the jurisdiction of the High Court to stay the execution of its decisions pending Appeal to the Court of Appeal. I also note that there is no specific legislation providing for the conditions that must be met by any applicant for stay of execution pending appeal to the Court of Appeal. 12. The history of stay of execution pending appeal can be traced to the English authorities of **Cropper versus Smith (1883) CH. DIV 305, Wilson versus Church 1879 11 Ch. D 576 and Erin-for Properties Ltd vs. Cheshire County Council (1974) 2 ALL ER 448.** 13. **In the case of Erin-For Properties Ltd versus Cheshire County Council** (supra) Megarry, J observed as follows: **“There may of course be many cases when it could be wrong to grant an injunction pending appeal, as where an appeal would be frivolous, or to grant the injunction would inflict greater hardships than it would avoid. But subject to that the principle is to be found in the leading judgment of Cotton L.J in Wilson versus Church (No. 2) [1879] 12 Ch. D 45c) when speaking of an appeal from the Court of Appeal to the house of Lords he said; ‘Where a party is appealing, exercising his undoubted right of appeal this Court ought to see that the appeal if successful is not nugatory”** **The Judge also noted that in filing an application for stay convenience is not everything but the consideration is that any such application must be made initially to the trial Judge since he is well versed with the case and can deal properly with the application.** 1. Ordinarily, following these principles, the Court of Appeal will not intervene unless one the parties is aggrieved with the findings of the Judge. This position of the law has been followed by courts in numerous applications of this nature which have a duty of ensuring that an appeal if successful is not rendered nugatory. In my view this is the most important ground that court must consider in an application of this nature. 1. In the case of [SALMON NDALO OBEDE v NATIONAL BANK OF KENYA LIMITED [2010] KEHC 3791 (KLR)](https://new.kenyalaw.org/akn/ke/judgment/kehc/2010/3791/eng%402010-01-22) while addressing the issue of Jurisdiction Justice Ouko as he then was, observed thus: **‘’Suffice to state though, that there are a clear distinction and different considerations between this court’s jurisdiction in matters of stay and the jurisdiction of the Court of Appeal. For instance, the latter’s jurisdiction is premised on two well-known grounds, namely, that the intended appeal is arguable and not frivolous and secondly that the intended appeal will be rendered nugatory if the stay is not granted and the appeal were to succeed.** **The jurisdiction of the High Court governed by Order 41 rule 4 of the Civil Procedure Rules outlines four (4) conditions to be met before a stay can be granted, namely that there must be sufficient cause; that the applicant may suffer substantial loss unless an order of stay is granted; that the application for stay must be brought without unreasonable delay and; that the applicant must give an undertaking as to security. In my considered view therefore, it is not open for this court to consider whether the appeal is arguable. That can only be for the final court.** **For these reasons, I find that as things stand, all this court has to consider in an application for stay of proceedings is whether there is sufficient cause. Has the applicant demonstrated sufficient cause?’’** 1. While addressing a lacuna on substantive legal provisions on jurisdiction the **Judge** remarked thus: **‘’This application is premised on the provisions of Order 41 rules 4 of the Civil Procedure Rules, which vests in the High Court power to grant a stay of execution or proceedings if sufficient cause is shown. The rule further stipulates under subrule (2) three other conditions which must be satisfied in an application for stay of execution. It is noted that under that subrule (2), the conditions are specifically to be satisfied in an application for stay of execution as opposed to an application for stay of proceedings. Visram, J (as he then was) observed this lacuna in Prime Bank Ltd. Vs. Esige, (2005), KLR 160, and recommended that the Rules Committee relooks at the provision in order to make its application clearer. The Judge then went ahead to apply Rule 5(2)(b) of the Court of Appeal Rules in an application seeking stay of proceedings in the High Court. Whether that was correct is not for me to say.’’** 1. **Visram J** in the case of [Prime Bank Ltd v Esige [2005] KEHC 3183 (KLR)](https://new.kenyalaw.org/akn/ke/judgment/kehc/2005/3183/eng%402005-02-09) observed: **‘’The provisions of Rule 5 (2) (b) of the Court of Appeal Rules which deals with matters similar to the ones raised in the Appellant’s application does not also provide for any particular way in which the power may be exercised but only says that they should act “on such terms as the court may think just”. Now, the Court of Appeal has developed some principles to guide the exercise of that power so that the same is not left to caprice and those guidelines are simple and direct as follows:** **“(a) The Appellant must show that his appeal is an arguable one. In other words, he must show that the appeal is not a frivolous one.** **(b) The Appellant must also show, in addition, that if the order for stay of proceedings is not granted, his appeal, if it were to succeed, would be rendered nugatory.”** 1. In Uganda ,while addressing the same issue the Supreme Court took cognizance of the lacuna in the law and guided that an applicant seeking a stay of execution of the decision of the High Court pending appeal should be prepared to meet the conditions set out in Order 43 rule 4(3) of the Civil Procedure Rules, equivalent to our Rule 42 rule 6 of the CPR ,as was the held in Kyambogo University versus Prof. Isaiah Omolo Ndiege Court of Appeal Civil [Application No. 341 of 2013](https://ulii.org/akn/ug/judgment/ugca/2013/2048) **where the Court held thus:** **‘’Following the decision of the Supreme Court in Lawrence Musiitwa Kyazze versus Eunice Busingye Civil Application No. 18 of 1990, an application of this nature ought to have been made at the High Court first. In that case the Supreme Court stated as follows at page 10; “This court would prefer the High court to deal with the application for a stay on its merits first, before the application is made to the Supreme Court. However, if the High Court refuses to accept the jurisdiction, or refuses jurisdiction for manifestly wrong reasons, or there is great delay, this court may intervene and accept jurisdiction in the interest of justice.** **It is now settled law that this court and the High Court have concurrent jurisdiction in this matter. It appears to me that applications of this nature should be first filed in the High Court as a general rule, and should only be filed in this court, where exceptional circumstances exist. I have found no special circumstances requiring this application to be fixed in this court first. This application ought to have been filed in the High Court’’** 1. The Court, in exercising its discretion, should therefore always opt for the lower rather than the higher risk of injustice. See Suleiman vs. Amboseli Resort Limited [2004] 2 KLR 589. 2. **Warsame, J** (as he then was) in Samvir Trustee Limited vs. Guardian Bank Limited Nairobi (Milimani) HCCC 795 of 1997 also expressed himself as hereunder: **“Every party aggrieved with a decision of the High Court has a natural and undoubted right to seek the intervention of the Court of Appeal and the Court should not put unnecessary hindrance to the enjoyment and exercise of that right by the defendant. A stay would be overwhelming hindrance to the exercise of the discretionary powers of the court…The Court in considering whether to grant or refuse an application for stay is empowered to see whether there exist any special circumstances which can sway the discretion of the court in a particular manner. But the yardstick is for the court to balance or weigh the scales of justice by ensuring that an appeal is not rendered nugatory while at the same time ensuring that a successful party is not impeded from the enjoyment of the fruits of his judgement. It is a fundamental factor to bear in mind that, a successful party is prima facie entitled to the fruits of his judgement; hence the consequence of a judgement is that it has defined the rights of a party with definitive conclusion. The respondent is asserting that matured right against the applicant/defendant…For the applicant to obtain a stay of execution, it must satisfy the court that substantial loss would result if no stay is granted. It is not enough to merely put forward mere assertions of substantial loss; there must be empirical or documentary evidence to support such contention. It means the court will not consider assertions of substantial loss on the face value but the court in exercising its discretion would be guided by adequate and proper evidence of substantial loss… Whereas there is no doubt that the defendant is a bank, allegedly with substantial assets, the court is entitled to weigh the present and future circumstances which can destroy the substratum of the litigation…At the stage of the application for stay of execution pending appeal the court must ensure that parties fight it out on a level playing ground and on equal footing in an attempt to safeguard the rights and interests of both sides. The overriding objective of the court is to ensure the execution of one party’s right should not defeat or derogate the right of the other. The Court is therefore empowered to carry out a balancing exercise to ensure justice and fairness thrive within the corridors of the court. Justice requires the court to give an order of stay with certain conditions.”** 1. In the case of **Vishram Ravji Halai vs. Thornton & Turpin Civil Application No. Nai. 15 of 1990 [1990]** KLR 365, the Court of Appeal held that whereas the Court of Appeal’s power to grant a stay pending appeal is unfettered, the High Court’s jurisdiction to do so under Order 41 rule 6 of the Civil Procedure Rules is fettered by three conditions namely, **establishment of a sufficient cause, satisfaction of substantial loss and the furnishing of security. Further the application must be made without unreasonable delay.** 2. The courts are now enjoined to give effect to the overriding objective in the exercise of its powers under the Civil Procedure Act or in the interpretation of any of its provisions. According to section 1A(2) of the Civil Procedure Act “the Court shall, in the exercise of its powers under this Act or the interpretation of any of its provisions, seek to give effect to the overriding objective” while under section 1B some of the aims of the said objective are; the just determination of the proceedings; the efficient disposal of the business of the Court; the efficient use of the available judicial and administrative resources; and the timely disposal of the proceedings, and all other proceedings in the Court, at a cost affordable by the respective parties. 3. The principles guiding the grant of a stay of execution pending appeal are well settled. These principles are provided under Order 42 rule 6(2) of the Civil Procedure Rules which provides as follows: No order for stay of execution shall be made under subrule (1) unless: 4. 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 5. 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. 6. In [Kyambogo University versus Prof. Isaiah Omolo Ndiege Court of Appeal Civil](https://ulii.org/akn/ug/judgment/ugca/2013/2048) [Application No. 341 of 2013](https://ulii.org/akn/ug/judgment/ugca/2013/2048) the Court of Appeal expanded the conditions to include, that the applicant has lodged a notice of appeal; that there is serious or eminent threat of execution of the decree or order; that if the application is not granted, the appeal would be rendered nugatory; that the appeal is not frivolous and has a likelihood of success; and that refusal to grant the stay would inflict more hardship than it would avoid. 7. I shall now proceed to determine whether the Applicants have met all those conditions. **D. WHETHER THE APPLICANT HAS MET CONDITIONS FOR STAY** 1. **Notice of appeal:** 2. As I have already stated in the background to this application, that it is not contested that the Applicants have filed an appeal before the Court of Appeal. The Notice of Appeal is attached to the affidavit in support of the application and the same has been served. I therefore find that the Applicant fulfilled this condition. **(ii)Unreasonable delay:** 1. Judgment was delivered on 11th December ,2025 and thereupon court grant a stay for 30 days .On 19th January ,2026 a letter for proceedings and a notice of Appeal were filed in court . The notice as signed by the Registrar on 26th January,2026 . Thereafter a bill of costs was filed on 23/1/2026 and subsequently taxed on 17th April,2026. The application was ultimately filed on 18th February,2026 under certificate of urgency. A reply thereto was filed on 21st March ,2026 to which the respondent attached a bill of costs. The court also takes note of a letter dated 19th February, 2026 written by Mary Okwaro where by she issued a notice to vacate asa against the Appellant which was to be complied with within 14 days failure to which she was to seek the aid of the Police to carry out her threats .This Court notes that the application for stay was filed after 39 days after delivery of Judgment. The court notes the period between 21st of December,2026 and 13th of January, in the following shall be omitted from any computation of time . This is provided under order 50 Rule 4 .The notice of Appeal was therefore filed within time and the application was filed timeously. 2. In the case of **DPP vs CHRYSANTHUS BARNABUS OKEMO vs SAMUEL KIMUNCHUGICHURU,THEATTORNEYGENERALAND ANTI-CORRUPTION COMMISSION** there was a delay of 521 days in the filing the record of appeal. in granting the extension the Supreme Court took note of the sentiments of Retired Chief Justice, Willy Mutunga sentiments in **Jasbir Singh Rai & 3 others v Tarlochan 13 Singh Rai Estate of & 4 Others [2013] eKLR** where **he held,** **“it should be good practice for the Supreme Court to take every opportunity presented to it to pronounce itself on new nuggets of our jurisprudence, through interpretation of the Constitution.”** 1. The Judges then concluded thus; **“The respondent raised the critical aspect that with the delay in instituting the appeal, the noose of judicial uncertainty continues to precariously hang over the them, and is not only unfair, but also violates their non-derogable right and legitimate expectation that “justice shall not be delayed” guaranteed by Articles 50(2)(e) as read with 159(2)(b) of the Constitution. We agree that delay prejudices the respondents. However, given the public interest aspect of this matter that we have alluded to, we find that it outweighs the individual rights of the two respondents. We would have sanctioned the Applicant to pay the respondents costs but we find that that would amount to expending public funds of the tax payer by a public body that slept on the job.’** 1. Indeed no complaint regarding the notice of Appeal and filing of the Application for stay pending [execution.No](http://execution.no) issue has been raised regarding late filing the Application for stay of execution 2. The court also notes that the bill of costs and letter of eviction was prompted by the intended Appeal to the court of Appeal. **(iii) not being frivolous and having a likelihood of success;** 1. It is incumbent upon the Applicant to avail evidence or material to the Court in order for it to establish whether or not there is a prima facie case on appeal. At this stage what the Court is required to examine is whether there is arguable ground of appeal which merits consideration by the Court of Appeal. It is not for the Court to descend into determining the merits of the appeal. 2. In **Jomo Kenyatta University of Agriculture &Technology versus Martin** **Higiro Court of Appeal of Kenya Civil Appeal (Application) No. E268 OF 2024** the Court observed that: “**Regarding the sufficiency of the pleaded grounds of appeal to warrant a grant of the stay orders sought, this Court in the case of Yellow Horse Inns Ltd vs. A. A Kawir Transporters & 4 others [2014] eKLR, observed that an applicant need not show a multiplicity of arguable points as one arguable point would suffice. Neither is the applicant required to show that the arguable point would succeed, as this Court held in Kenya Commercial Bank Limited vs. Nicholas Ombija [2009] eKLR”.** 1. Similarly, in the case of **Stanley Kang'ethe Kinyanjui versus Tonny Ketter** and 5 **Others (2013**) e KLR the Court of Appeal of Kenya stated that; from the long line of decided cases (although none was cited by counsel, perhaps due to their notoriety) on **Rule 5(2)(b**) aforesaid, the common vein running through them and the jurisprudence underlying these decisions can today be summarized as follows: 2. **In dealing with Rule 5(2) (b) the court exercises original and discretionary jurisdiction and that exercise does not constitute an appeal from the trial judge's discretion to this court. See Ruben & 9 Others v Nderitu & Anothe**r**(1989) KLR 459.** 3. **The discretion of this court under Rule 5(2)(b) to grant a stay or injunction is wide and unfettered provided it is just to do so.** 4. **The court becomes seized of the matter only after the notice of appeal has been filed under Rule 75.**Halai & Another v Thornton & Turpin (1963) Ltd. **(1990) KLR 365.** 5. **In considering whether an appeal will be rendered nugatory the court must bear in mind that each case must depend on its own facts and peculiar circumstances.**David Morton Silverstein v Atsango Chesoni, **Civil Application No. Nai 189 of 2001.** 6. **An applicant must satisfy the court on both of the twin principles.** 7. **On whether the appeal is arguable, it is sufficient if a single *bonafide* arguable ground of appeal is raised.**Damji Pragji Mandavia v Sara Lee Household & Body Care (K) Ltd, **Civil Application No. Nai 345 of 2004.** 8. **An arguable appeal is not one which must necessarily succeed, but one which ought to be argued fully before the court; one which is not frivolous.**Joseph Gitahi Gachau & Another v. Pioneer Holdings (A) Ltd. & 2 others, **Civil Application No. 124 of 2008.** 9. **In considering an application brought under Rule 5 (2) (b) the court must not make definitive or final findings of either fact or law at that stage as doing so may embarrass the ultimate hearing of the main appeal.**Damji Pragji (supra). 10. **The term “nugatory” has to be given its full meaning. It does not only mean worthless, futile or invalid. It also means trifling.**Reliance Bank Ltd v Norlake Investments Ltd **[2002] 1 EA 227 at page 232.** 11. **Whether or not an appeal will be rendered nugatory depends on whether or not what is sought to be stayed if allowed to happen is reversible; or if it is not reversible whether damages will reasonably compensate the party aggrieved.** 12. **Where it is alleged by the applicant that an appeal will be rendered nugatory on account of the respondent's alleged impecunity, the onus shifts to the latter to rebut by evidence the claim.**International Laboratory for Research on Animal Diseases v Kinyua, **[1990] KLR 403** 13. In the case of [Montague Charles Ruben & 9 others v Peter Charles Nderito& another [1989] KECA 70 (KLR)](https://new.kenyalaw.org/akn/ke/judgment/keca/1989/70/eng%401989-11-09) the court observed: **Once an applicant has properly come before the Court, the Court has jurisdiction to grant an injunction or make an order for a stay on such terms as the Court may think just. We have to apply our minds *denovo*(anew) on the propriety or otherwise of granting the relief sought. And as we have always made clear, this exercise does not constitute an appeal from the trial judge’s discretion to ours.** **In such an application, the applicant must show that the intended appeal is not frivolous, or put the other way round, he must satisfy the court that he has an arguable appeal.** **Secondly, it must be shown that the appeal, if successful, would be rendered nugatory: See *Stanley Munga Githunguri v Jimba Credit Corporation Ltd*Civil Application NAI 161 of 1988.** **Applying these principles to the present application the justice of the matter as of now seem to us, without a doubt, to favour the applicants. They will contend at the appeal that the learned judge’s finding that the covenants in question are unenforceable is wrong in law. That in our view is a substantial issue which on any view cannot be said to be frivolous. It is certainly arguable.** **And suppose the injunction does not issue and the defendants are allowed to proceed with the construction of the college it is not hard to contemplate what the scenario would be in the event that their appeal was successful. It would amount to no more than a pyrrhic victory. It would be rendered nugatory. The college would have been built and the plaintiffs would be presented with a *fait accompli*(a thing that is over and done with). Such an unfortunate consequence should not be allowed to befall a litigant exercising his undoubted right of appeal.** 1. The underlying principle is that court is not required to inquire into the merits of the case from which this application arose, since this is not an appeal,however it is required to determine whether prima facie, there exist grounds of appeal that merit serious consideration. It is a balancing act. 1. The respondent in her affidavit states that after delivery of the Judgment she lawfully exercised her proprietary rights over the suit property , that a bill of costs was filed and the Applicant duly participated in and responded thereto thereby demonstrating acquiescence to and acceptance of the Judgment and that the orders sought for have been overtaken by events .The Appellant on the other hand states that that he has been in occupation and use of the suit property for 40 years , that in the event an eviction is procured he will be rendered homeless , that he shall be exposed to substantial loss not compensable in monetary terms and that the instant application will safeguard the crux and or substratum of the intended Appeal. I therefore find that this condition has also been met by the Applicants. **(vi) Security for due performance of the decree or order.** 1. The courts have however been reluctant to order security for due performance of the decree because of the need to balance between the respondent’s right to be protected from the risk that the appellant may not be able to satisfy the decree as against the appellant’s right to access the courts. Courts have instead been keen to order security for costs. 2. Where the court finds that other conditions for stay have been met and no security has been furnished or an undertaking has been made, the court can still grant conditional stay. 3. Indeed, the Court of Appeal in **Cooperative Bank of Kenya Limited vs Banking** **Insurance & Finance Union (Kenya) [2015]** eKLR held as follows: “**An order for stay of execution (pending appeal) is ordinarily an interim order which seeks to delay the performance of positive obligations that are set out in a decree as a result of a judgment. The delay of performance presupposes the existence of a situation to stay – called a positive order – either an order that has not been complied with or has partly been complied with.”** 1. Courts have a duty in dealing with stay to ensure that the subject matter is guarded and ultimately the Appeal is not rendered nugatory. See Consolidated **Marine. vs. Nampijja & Another, Civil** App.No.93 of 1989 (Nairobi), 2. In **Focin Motorcycle Co. Limited vs Ann Wambui Wangui & Another** (2018) eKLR the court stated that: “**Where the applicant proposes to provide security as the applicant has done, it is a mark of good faith that the application for stay is not just meant to deny the respondent the fruits of judgment. My view is that it is sufficient for the applicant to state that he is ready to provide security or to propose the kind of security but it is the discretion of the court to determine the security.** 1. **T**he applicant has offered to provide security and has therefore satisfied this ground. The court, however, retains the determine to determine the security to be deposited. **(v) Serious or imminent threat of execution** 1. Imminent threat means a condition that is reasonably certain to place the applicant’s interests in direct peril and is immediate and impending and not merely remote, uncertain, or contingent. An order of stay will issue only if there is actual or presently threatened execution. There must be a direct and immediate danger of execution of the decree. 2. In the instant case, the Respondent has already applied for execution by way of eviction. Costs have been taxed and the Respondent has not stated that they effected the orders of the court. The Applicant filed this application for stay the execution prior to taxation of costs. The application was thereafter not filed to stem any threatened execution. 3. It is apparent that the threat is real and any time the Respondent is likely swing into action with ‘’all guns blazing ‘’ and, I therefore find, that this condition has also been met by the Applicants. (vi) **The appeal would be rendered nugatory;** 4. This is the most important ground that Courts must consider in applications of this nature. It is incumbent upon the Applicant to prove that if the application is not granted, their appeal will be rendered nugatory. 5. Nugatory means of no force or effect: useless; invalid or trifling **(Stanley Kang’ethe Kinyanjui v Tony Ketter & 5 Others)** 6. The court will also appreciate whether what is sought to happen is reversible; or if it is no reversible whether damages will reasonably compensate the party aggrieved. 7. In the case of [Asher v Kuria & 6 others [2023] KECA 528 (KLR)](https://new.kenyalaw.org/akn/ke/judgment/keca/2023/528/eng%402023-05-12) the court had this to say on nugatory aspect: ‘’ **Turning to the nugatory aspect, the applicant states that the order directing payment of half the decretal sum directly to the 1st and 2nd respondent will greatly prejudice him owing to the colossal nature of the amount, and that, in any event, the 1st and 2nd respondents did not demonstrate their ability to repay the entire decretal sum in the event the intended appeal is successful. This court in**[***University of Nairobi vs Ricatti Business of East Africa***](https://kenyalaw.org/akn/ke/judgment/keca/2020/463)**[2020] eKLR stated thus: “Where it is alleged by the applicant that an appeal will be rendered nugatory on account of the respondent's alleged impecunity, the onus shifts to the latter to rebut that allegation by evidence. See International Laboratory for Research on Animal Diseases v Kinyua, [1990] KLR 403.”** **The 1ST and 2nd respondent did not provide any proof on their ability to repay the monies to be paid to them in satisfaction of the conditional order of stay issued by the Environment and Land Court. They have, therefore, not discharged their obligation. We are of the view that if we do not grant orders of stay as prayed by the applicant, the intended appeal shall be rendered nugatory, and the applicant may never be able to recover the monies paid to the respondents in the event the intended appeal is successful. The applicant has, in our view, satisfied the second limb required for grant of orders of stay under rule 5 (2)(b) of this court’s rules.** (e) **In the instant case, the 1st Applicant deponed that he is in occupation of the suit land. He further stated that if execution is not stayed, the Respondent will evict him from the suit land thereby rendering the appeal nugatory. Counsel for the Applicants conceded that even if the Applicants are evicted from the suit land, the appeal will still be heard ,the situation would be irreversible or that they would not be reasonably compensated in damages. (Emphasis mine).** 1. In determining whether or not an appeal will be rendered nugatory, the Court has to consider the conflicting claims of both parties and each case has to be determined on its merits. 2. I however I appreciate the sentiments expressed by the High Court in **John Gachanja Mundia vs. Francis Muriira Alias Francis Muthika & Another [2016] eKLR th**at: “**There is doubt the Applicant has shown that substantial loss would occur unless stay is granted. However, I will be guided by a greater sense of justice. Courts of law have said that, with the entry of the overriding principle in our law and the anchorage of substantive justice in the Constitution as a principle of justice, courts should always take the wider sense of justice in interpreting the prescriptions of law designed for grant of relief.”** I therefore find that the Applicants have satisfied this condition. (**vi) Substantial loss.** 1. Substantial loss does not represent any particular amount or size. It cannot be quantified by 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 loss that is merely nominal. 1. In the case of **James Wangalwa & Another versus Agnes Naliaka Cheseto** [2012] eKLR the Court stated 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 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.”** 2. Furthermore, in **Tanzania Cotton Marketing Board versus Coqecot Cotton Co**. SA (1995- 1998) 1 E.A 312 Lubuva J., cited with approval the Indian case of **Bansidhav Vs Pribku Dayal AIR 41 1954** where it was stated that; “it is **not enough to merely repeat words of the code and state that substantial loss will result; the kind of loss must be specified, details must be given and the conscience of the court must be satisfied that such loss will really ensue. The words substantial loss cannot mean the ordinary loss to which every judgment debtor is necessarily subjected when he loses his case and is deprived of his property in consequence. That is an element which must occur in every case and since the law expressly prohibits stay of execution as an ordinary rule, it is clear the words ‘substantial loss’ must mean something in addition to all different from that.”** 3. In the instant case, the Applicant has disclosed that he has been in occupation of the suit property for over 40 years and in the event he is evicted he shall be rendered homeless. 4. The Applicant has indeed demonstrated in the application and in the affidavits factors which show that the execution will create a state of affairs that will irreparably affect or negate their very essential core as the successful party in the appeal. **(vii) Refusal to grant the stay would inflict more hardship than it would avoid**. 5. The Court has the duty to balance or weigh the scales of justice by ensuring that an appeal is not rendered nugatory while at the same time ensuring that a successful party is not impeded from the enjoyment of the fruits of his or her judgement. Where the grant of an order of stay of execution would inflict greater hardship than it would avoid, the Court will desist from granting the order. 6. In the instant case, apart from the Applicant merely stating in paragraph 13 of the affidavit in support of the application that they will suffer irreparable and substantial loss if the Application for stay of execution is not granted, the applicants have not offered evidence of objective facts from which it can be deduced that in the circumstances of this case, execution will cause significant difficulty, expense or disruption, beyond that to which every judgment debtor is necessarily subjected when he or she loses his or her case and is deprived of his or her property in consequence. 7. The question to be resolved in this peculiar case is whether or not there is an order capable of being executed at all. Black’s Law Dictionary Sixth Edition defines execution in the following terms: - “**Process issuing from a court in a civil action authorizing the sheriff or other competent officer to carry out the court’s decision in favour of the prevailing party” The same dictionary defines stay of execution as follows:- “The stopping or arresting of execution on a judgment that is of the judgment creditor’s right to issue execution, for a limited period**”. 1. It is apparent that execution refers to a process by which a successful party in a civil matter enforces the decree or order. This unusually entails attachment of property to recover judgment debt, order of eviction, order requiring vacant possession of land, cancellation of certificate of title, return of moveable property and so on. 1. In my humble view is that for an order to be stayed such an order must be capable of being executed. The purpose of an order of stay of execution is to preserve the status quo and protect the applicants’ right of appeal from being rendered nugatory. 1. In determining whether or not an appeal will be rendered nugatory, the Court has to consider the conflicting claims of both parties and each case has to be determined on its merits. 2. In the case of **Housing Finance Company of Kenya Limited v Sharok Kher Mohamed Ali Hirji & Another [2015] eKLR** This Court stated as follows: “**With time it became necessary to put certain riders to the legal position as it became obvious that in certain cases, undue hardship would be caused to the applicants if stay is refused purely on grounds that the decree is a money decree.** 1. In the case of **Omumbo & Another v Mayfair Holdings Limited (Civil Appeal (Application) E151 of 2023) [2024] KECA 875 (KLR)** (19 July 2024) (Ruling) the court of appeal held: **The upshot of the ELC’s judgment was that the respondent was the lawful and registered owner of the suit property. The applicants have raised the issue that the appeal will be rendered nugatory because they will be evicted from the suit land despite the fact the applicants have been running a hotel business on the suit land which is the only source of income for the applicants for 16 years or so. 13. The respondent has also confirmed that the applicants have been on the suit property and as such it has been unable to use the same due to the trespass by the applicants; but of greater significance is the fact that the 2nd applicant admitted at the trial that she had constructed the property on a road reserve; riding on the strength of a purported letter of allocation. This situation certainly calls for circumspection, and a balancing of interests. What would be the effect of allowing the applicant to remain on property that she admits is a road reserve?** **(g) In Reliance Bank Ltd v Norlake Investments Ltd [2002] EA 227, this Court stated:** **“To refuse to grant an order of stay to the applicant would cause to it such hardships as would be out of proportion to any suffering the respondent might undergo while waiting for the applicants appeal to be heard and determined.”** **(h)** I however, I appreciate the sentiments expressed by the High Court **in John Gachanja Mundia vs. Francis Muriira Alias Francis Muthika & Another [2016] eKLR that:** “**There is doubt the Applicant has shown that substantial loss would occur unless stay is granted. However, I will be guided by a greater sense of justice. Courts of law have said that, with the entry of the overriding principle in our law and the anchorage of substantive justice in the Constitution as a principle of justice, courts should always take the wider sense of justice in interpreting the prescriptions of law designed for grant of relief.”** 1. **Though the Appeal filed by the Appellant was allowed I find that the Applicant was a victim of circumstances arising from the decision of Pauline Chemuge Sugawara v Nairuko Ene Mutarakwa Kiritu & 4 others Civil Appeal Number E141 of 2022 where it was held that Magistrates courts have no jurisdiction to hear and determine adverse possession claims.** 2. **The court also takes cognisance of the fact that until 2024 Magistrates court had jusridiction to hear and determine claims of adverse possssion.see Philiph Kithaka v Mercy Karimi Nyaga{2021]eklr** 3. **Unfortunately for the Respondent his victory was short-lived after he was caught in a friendly fire arising from changes in legal jurisprudence** 4. **Weighing the risk I find that the Applicant faces the greater risk if evicted from the suit land considering the huge investment made on the suit land for the period of occupation which is no mean achievement .** 5. However, since the Appellant /Respondent is the successful party, I have an obligation to guard the rights of the successful party Vis a Vis the rights of the losing party who now wants to exercise his undoubted right of appeal. **CONCLUSION.** 74. In the result ,the application has been conditionally allowed with the following order (a )An order do issue for stay of Execution of the Judgment and Decree of this Honourable court, dated and delivered on the 11th December,2025 and any consequential orders , and in particular , the implementation of Eviction order in respect of **LR NO HOMABAY/KAWERE KONYANGO** **/KARADING 3413** pending the hearing and determination of the intended Appeal to the court of Appeal (b) An order of inhibition is made, inhibiting any dealings and /or transactions over and in respect of **LR NO HOMABAY /KAWERE** **KONYANGO/KARADING 3413** pending the hearing and determination of the intended Appeal to the Court of Appeal (c) The above orders ae made on condition that the Applicant shall deposit the taxed costs, and a further sum of Kshs 300,000/= in a joint interest earning account in a bank to be agreed by both parties and most preferably Kenya Commercial Bank, being security for the due performance of the Decree to be deposited within thirty (30) days from the date of this order (d) In case of default by the Applicant, or the condition in (c) above, the order of stay of execution shall lapse and execution shall issue **accordingly** **(e) No order as to costs** I so order. Dated, signed, read and delivered electronically via micro-soft Teams Platform this 13th day of July,2026 J.W.Wanyonyi JUDGE. **In the presence of:** * + - 1. Trevor Omollo Advocate for the Respondent/Applicant 2. Ogwe Advocates for the Appellant/Respondent (Absent) 3. C/A -Bosibori