https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3963

Ondieki v Matara (Land Case Appeal E007 of 2026) [2026] KEELC 3963 (KLR) (25 June 2026) (Ruling) Neutral citation: [2026] KEELC 3963 (KLR) Republic of Kenya In the Environment and Land Court at Kisii Land Case Appeal E007 of 2026 AA Omollo, J June 25, 2026 Between Jackson Nyakweba Ondieki Appellant and Evans Mosoti Matara Respondent Ruling 1.For determination is the application dated 2nd February, 2026 brought under the provisions of Order 42 Rule 6(2) of the Civil Procedure Rules by the Appellant/Applicant. The Applicant prays for orders of a stay of execution of the Judgment delivered on 9th January 2026 in Ogembo ELC Case No. E027 of 2025 and all consequential orders pending the hearing and determination of the Appeal. 2.The application is supported by the grounds stated on the face of it inter alia the Judgment will result in irreversible interference with the suit property, thereby rendering the Appeal nugatory. He also argues that if the stay is not granted, he is likely to suffer substantial loss. 3.The Respondent opposed the application through the replying affidavit sworn on 16th February, 2026. He deposes that the Applicant has not shown how the transfer of the portion sold over two decades ago would occasion him substantial loss. He avers that a stay of execution is not meant to deny a successful litigant from enjoying the fruits of their judgment. 4.The parties filed written submissions in support of and against the submissions. I have read the submissions which basically discusses the provisions of order 42 rule 6(2)(a) of the Civil Procedure Rules, which states that no order of stay of execution shall be made unless the court is satisfied that no substantial loss may result to the applicant unless the orders are granted and that the application must be brought without undue delay. 5.The law permits a party who has lost a case to seek for stay of execution of the decree pending the determination of his/her appeal. Therefore, while considering such an application, the court is called upon to balance the rights of a successful litigant and that of the Appellant. 6.In this instance, the Respondent argues that he has been in occupation of the suit portion of L.R BASII/BOSANSA/454 measuring 25ft by 100ft hence there is no substantial loss that the Appellant will suffer if the order of stay is not granted. The Appellant/Applicant deposed that the trial court failed to appreciate that the alleged vendor lacked legal capacity, no grant of representation having been obtained, and that the purported sale agreements were entered into after the death of the registered proprietor. 7.The Applicant, however, does not address who is in possession or occupation of the suit property, nor does he explain how the failure to grant the orders of stay will cause him substantial loss. He only states that and is irreplaceable. Be that as it may, having analysed the pleadings as filed, I note that if the stay is not granted, there is nothing to prevent the Respondent from proceeding to process title for the suit portion. 8.It is therefore necessary to grant an order to withhold partial execution of the decree to avoid incurring costs for processing the title of the suit portion, which order may be reversed if the appeal is successful. Such an order will not prejudice the Respondent, who has stated that he is in occupation. 9.In conclusion, i grant an order of stay of execution staying the execution of the judgment to process the title of the suit portion measuring 25 ft by 100ft comprised in L.R Basii/Bonansa/454 pending hearing and determination of the appeal. Costs of the application abide the winner of the appeal. RULING DATED, SIGNED AND DELIVERED AT KISII THIS 25TH DAY OF JUNE, 2026A. OMOLLOJUDGE