https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3257

Amaitsa (Suing as Administrator of the Estate of David Ngómbe Masinde (Deceased) v Masika (Environment and Land Appeal 004 of 2026) [2026] KEELC 3257 (KLR) (25 May 2026) (Ruling) Neutral citation: [2026] KEELC 3257 (KLR) Republic of Kenya In the Environment and Land Court at Kakamega Environment and Land Appeal 004 of 2026 A Nyukuri, J May 25, 2026 Between Ruth Nelima Amaitsa (Suing as Administrator of the Estate of David Ngómbe Masinde (Deceased) Appellant and Sammy Ngome Masika Respondent Ruling Introduction 1.Before court is a notice of motion dated 28th January 2026 filed by the appellant seeking stay of execution of order numbers 3 and 4 of the decree of the lower court dated 23rd December 2025, pending the hearing and determination of this appeal. She also sought costs. 2.The application is supported by the affidavit sworn by the appellant on 28th January 2026. The applicant’s case is that she is aggrieved with order Nos. 3 and 4 of the lower court decree which she has appealed against in this appeal. That if execution proceeds she will suffer irreparable damage and the appeal shall be rendered nugatory. That her children will lose the only land they have. That the appeal raised arguable grounds. That she is unable to raise colossal sums as ordered in the decree. 3.The application was opposed. The respondent filed grounds of opposition stating that the applicant failed to deposit security for costs of Kshs. 550, 000/= as ordered by this court on 20th February 2026. Analysis and determination 4.The court has carefully considered the application together with the response. The issue before court is whether the appellant has met the threshold for grant of orders of stay of execution pending appeal. 5.Order 42 Rule 6 of the Civil Procedure Rules provides for the jurisdiction and discretion of the court to grant orders of stay of 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.” 6.It is trite that for an applicant to succeed in seeking stay of execution pending appeal, they ought to demonstrate that they stand to suffer substantial loss; that stay was sought without unreasonable delay and show willingness to provide security for the due performance of the decree that may issue against them. 7.In the cases of Kenya Power & Lighting CO. Ltd v Kigata Ngare Unduthu & 36 Others [2020] eKLR and Kenya Shell Limited v Benjamin Karuga Kibiru & Another [1986] KLR the court held that substantial loss is the corner stone of the jurisdiction to grant stay pending appeal. 8.In the instant matter, the trial court allowed the appellants (plaintiff’s) claim of nullifying a sale agreement and granted an injunction against the respondent not to interfere with the suit property, and on the other hand allowed the counterclaim for the refund of the consideration paid to the respondent. The appellant is not challenging the orders that favour her in the decree. She is only challenging the orders that favour the respondent. 9.Having considered the application, the trial court has not ordered her out of the suit property. Alleged inability to settle the decretal sum which was paid as consideration cannot be the basis for grant of stay. In the premises, I find no merit in the application dated 28th January 2026, which I hereby dismiss with costs. 10.It is so ordered. DATED, SIGNED AND DELIVERED AT KAKAMEGA IN OPEN COURT/VIRTUALLY THROUGH MICROSOFT TEAMS VIDEO CONFERENCING PLATFORM THIS 25TH DAY OF MAY, 2026A. NYUKURIJUDGEIn the presence ofMr. Mutoka for the applicantNo appearance for the respondentCourt Assistant: Delphine