https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4124

Wakokwa v Akokwa (Environment and Land Appeal E035 of 2026) [2026] KEELC 4124 (KLR) (1 July 2026) (Ruling) Neutral citation: [2026] KEELC 4124 (KLR) Republic of Kenya In the Environment and Land Court at Kakamega Environment and Land Appeal E035 of 2026 A Nyukuri, J July 1, 2026 Between Rukia Malala Wakokwa Appellant and Mwanamina Nanzala Akokwa Respondent Ruling Introduction 1.Before court is a Notice of motion dated 12th May 2026 filed by the appellant seeking orders that there be stay of proceedings and execution of the judgment delivered in Mumias Senior Principal Magistrates Court ELC Number E034 OF 2024 on 30th April 2026, pending hearing and determination of the appeal herein. 2.The application is supported by the annexed affidavit of the applicant. The applicant’s case is that the lower court ordered subdivision of the suit property and sharing of the same between the appellant’s siblings and that the respondent had begun the process of survey and subdivision. That if the same proceeds his appeal will be rendered nugatory and she stands to suffer substantial loss as the subject matter is land and that because the land will be transferred to the respondents and two others. 3.The application was opposed. The respondent swore the replying affidavit dated 25th May 2026. She stated that the application was frivolous and an abuse of the court process as it had not been paid for and ought to be struck out. That each beneficiary of the suit property is in occupation of their respective portion and what is pending is for the appellant to effect transfer as the appellant was only holding the same in trust for the beneficiaries. That in 2024, the provincial administration ordered that the land be shared between the family members. 4.Parties were directed to file submissions in regard to the application, On record are submissions filed by the appellant dated 15th June 2026; which the court has duly considered. Analysis and determination. 5.The court has carefully considered the application, response thereto and submissions. The only issue that arise for the court’s determination is whether the applicant has met the threshold for grant of orders of stay of proceedings and execution pending appeal. 6.Order 42 Rule 6 of the Civil Procedure Rules provides for the jurisdiction of the court to grant orders of stay of proceedings and execution pending appeal as follows;Stay in case of appeal [Order 42, rule 6](1)No appeal or second appeal shall operate as a stay of execution or proceedings under a decree or order appealed from except in so far as the court appealed from may order but, the court appealed from may for sufficient cause order stay of execution of such decree or order, and whether the application for such stay shall have been granted or refused by the court appealed from, the court to which such appeal is preferred shall be at liberty, on application being made, to consider such application and to make such order thereon as may to it seem just, and any person aggrieved by an order of stay made by the court from whose decision the appeal is preferred may apply to the appellate court to have such order set aside.(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.” 7.Imminent execution alone cannot be the basis for grant of stay of execution pending appeal, as execution is a lawful process pursuant to grant of an order, judgment or decree by a court. (See James Wangalwa & Another vs. Agnes Naliaka Cheseto [2012] eKLR. To obtain stay pending appeal, the applicant ought to demonstrate imminent substantial loss and show the willingness to provide security for the due performance of the decree that may issue against them. They also ought to show that stay was sought without unreasonable delay. 8.In Tropical Commodities Suppliers Ltd & Others vs. International Credit Bank Ltd (in liquidation) [2004] 2 EA 331 the court discussed substantial loss as follows;“Substantial loss does not represent 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 a loss that is merely nominal.” 9.In the instant matter, the applicant stated that if stay is not granted, she will suffer substantial loss as the suit property will be surveyed and subdivided as ordered by the trial court. The respondent countered that each beneficial owner has always been in occupation of their respective portions and all that needs to be done is survey, subdivision and transfer as ordered by the trial court. 10.It is clear to me that the appellant’s complaint is merely that execution will proceed and so this court should order stay of execution. The manner of substantial loss is not substantiated and the mere fact that the subject matter herein is land is not reason enough to demonstrate substantial loss as argued by the appellant. He does not deny the fact that the other children of the deceased are and have been in occupation of the portions which were ordered to be transferred to them. I am therefore not convinced that the appellant shall suffer any substantial loss. 11.It is trite that the threshold for grant of stay of proceedings is higher than that of stay of execution, as the applicant is obligated to demonstrate that there will be grave and manifest injustice if proceedings are not stayed. In the instant matter, the applicant has not met that threshold, hence the prayer for stay of proceedings is declined. 12.In the premises, I find and hold that the application dated 12th May 2026 lacks merit and the same is hereby dismissed with costs to the respondent. 13.It is so ordered DATED, SIGNED AND DELIVERED AT KAKAMEGA IN OPEN COURT/VIRTUALLY THROUGH MICROSOFT TEAMS VIDEO CONFERENCING PLATFORM THIS 1ST DAY OF JULY, 2026A. NYUKURIJUDGEIn the presence of;Ms Eroba for the appellantMr. Songa holding brief for Mr. Okeyo for the respondentCourt Assistant: Delphine