https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3548

Onduso v Maatwa (Land Case Appeal E015 of 2026) [2026] KEELC 3548 (KLR) (11 June 2026) (Ruling) Neutral citation: [2026] KEELC 3548 (KLR) Republic of Kenya In the Environment and Land Court at Kisii Land Case Appeal E015 of 2026 AA Omollo, J June 11, 2026 Between Mary Nyaboke Onduso Appellant and Aska Pamela Maatwa Respondent Ruling 1.The Appellant/applicant moved the court vide her application dated 24th February, 2026, brought under the provisions of Order 42, rule 6(2) of the Civil Procedure Rules and section 1A, 3A and 63 of the Civil Procedure Act, Cap 21. She is praying for orders:a.That there be issued an order of stay of execution of the judgment and/or decree dated 12.2.2026 pending the hearing and determination of the appeal being Kisii ELCA No E015 of 2026.b.Costs of the application are to be provided for 2.The application was supported by the grounds listed on its face and the affidavit of the 1st Applicant sworn on the same date. Inter alia, they plead that the application has been brought without undue delay, and that they are likely to suffer substantial loss and damage if the stay orders are not granted. 3.The Respondent opposes the prayers vide her replying affidavit sworn on 3rd March 2026. She avers that the application is premature and does not lie as the orders being sought to be stayed are negative. She deposes that before being granted the stay, Order 42 Rule 6 requires a party to prove the likelihood of substantial loss, yet no evidence has been placed before this court. 4.The Respondent argues that the Appellants will suffer no prejudice because they should be facilitated to stop the Respondent from accessing a place where they have called home since 1979. She avers that the applicant has come to court with unclean hands and/or in bad faith; hence, the same reeks of mala fides. She urged the court to dismiss the application with costs. 5.The hearing of the application proceeded orally on 11th March, 2026, where Mr Asati-Anyona, learned counsel for the Applicant, submitted that the Respondent had reported to DCI Kenyanya who has now served the Applicant with a notice to show cause why they should not be evicted in execution of the judgment. Additionally, he submitted that the Respondent was demanding payment of Kshs 859,427 awarded as general damages. 6.On the other hand, Mr Otieno learned counsel submitted for the Respondent that the orders being sought cannot be granted since they were negative. He argues that the Applicant has not presented evidence that the execution process has commenced. He also submitted that the Respondent can deposited the money awarded in court. That an order of statusquo would mean the Respondent stays on the ground. He urged the court to dismiss the application Analysis and determination: 7.I have considered the pleadings and the arguments for and against the prayer for a stay of execution. Order 42 Rule 6(2) of the Civil Procedure Rules requires an application to be filed without undue delay and proof of the likelihood of substantial loss. In this instance, the application was filed in the same month the judgment was delivered, hence, there is no delay. 8.Under the heading of substantial loss, the Applicant avers that the Respondent has served her with notice to show cause why she should not be evicted. The Applicant annexed a copy of the judgment appealed against, which dismissed her suit and entered judgment in favour of the Respondent. According to the findings of the subordinate court, the Respondent was in occupation of the suit portion. 9.The Applicant did not annex any evidence of the alleged notice to show cause for eviction that would persuade this court that she was in possession and that, if the stay orders are not granted, she would be evicted, thereby resulting in substantial loss. 10.The Court of Appeal in the case of Abachi & 4 others v Ethics & Anti-Corruption Commission & 2 others (Civil Application E169 of 2021) [2021] KECA 110 (KLR) (22 October 2021) held that,“On the second limb, whether the appeal will be rendered nugatory absent stay will depend 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.” 11.It is the award of general damages that the Respondent was likely to execute. The Applicant has not pleaded or submitted that the Respondent lacked the means to refund the decretal sum if her appeal were successful. In other words, I am stating that the Applicant has not demonstrated good grounds under the heading of substantial loss to warrant the stay orders, save for the fact that an appeal has been lodged. 12.In light of the foregoing analysis, I hold that the Applicant is entitled to a stay of execution in respect of the right to appeal, and accordingly such stay is hereby granted on condition that security be provided. The security terms are that she shall deposit part of the decretal sum, in the amount of Kshs 500000, in court within sixty (60) days of this Ruling. In default, the stay of execution order automatically lapses. 13.Costs of this application to the Respondent. DATED, SIGNED AND DELIVERED AT KISII THIS 11TH DAY OF JUNE, 2026.A. OMOLLOJUDGE