https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5116

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT KAKAMEGA** **ELCA NO. E033 OF 2026** **HENRY SHIKANDA…………………………………………. APPELLANT** **VERSUS** **MELTUS WERE………………………………..……….....RESPONDENT** **RULING** **Introduction** 1. Before Court is the Notice of Motion dated 8th May 2026 by which the appellant seeks an order for stay of execution of the judgment and decree issued on 10th April 2026 in Mumias Senior Principal Magistrate’s Court ELC No. E070 of 2024, pending the hearing and determination of the appeal. 2. The application is supported by the affidavit of the appellant. He deposes that the trial court entered judgment in favour of the respondent in the cross-originating summons, granting, inter alia, a permanent injunction over LR No. North/Wanga/Mayoni/1611, an order of eviction against him, mesne profits, and costs. The appellant contends that unless an order of stay is granted, he is likely to suffer substantial and irreparable loss as he has established his home on the suit property, where he has resided for approximately sixty years together with his family. He further avers that he derives his livelihood from farming on the land and that execution of the decree, particularly the eviction order, would render the intended appeal nugatory. 3. The application was opposed. The respondent swore the replying affidavit dated 20th July 2026. He stated that the applicant’s claim in the lower court was anchored on adverse possession but that on 27th February 2025, his Originating Summons was struck out for want of jurisdiction. That the said orders were never appealed against. That the trial court proceeded to hear the cross Originating Summons and allowed the respondents claim for injunction eviction and mesne profits awarded at Kshs. 300, 000/=. He maintained that no substantial loss has been demonstrated and no arguable appeal has been shown. 4. The court directed parties to file submissions in respect of the instant application. On record are submissions filed by the respondent dated 27th July 2026, which the court has duly considered. No submissions were filed by the applicant. **Analysis and determination** 1. The court has carefully considered the Motion, replying affidavit, and the respondent’s submissions. The sole issue that arise for determination is whether the appellant has satisfied the conditions for grant of an order of stay of execution pending appeal. 2. Order 42 Rule 6 provide for stay of execution as follows; “***Rule 6 of the Civil Procedure Rules*** stipulates that:- * 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 orders set aside.*** 2. ***No order for stay of execution shall be made under sub rule 1 unless: -*** + - 1. ***The Court is satisfied that substantial loss may result to the 1st Applicant unless the order is made and that the application has been made without unreasonable delay; and*** 2. ***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.”*** 1. The power of the Court to grant or refuse an application for stay of execution is discretionary. In [**Butt v Rent Restriction Tribunal [1979] KECA 22 (KLR)**](https://new.kenyalaw.org/akn/ke/judgment/keca/1979/22/eng%401979-07-16)**,** the Court of Appeal stated as follows; ***“It is in the discretion of the court to grant or refuse a stay but what has to be judged in every case is whether there are or not particular circumstances in the case to make an order staying execution. It has been said that the court as a general rule ought to exercise its best discretion in a way so as not to prevent the appeal, if successful from being nugatory...”*** 1. In **Kenya Shell Limited v Benjamin Karuga Kibiru & another [1986] KECA 94 (KLR),** the Court of Appeal stated as follows; ***“It is not sufficient by merely stating that the sum of Shs 20,380.00 is a lot of money and the applicant would suffer loss if the money is paid. What sort of loss would this be? In an application of this nature, the applicant should show the damages it would suffer if the order for stay is not granted. By granting a stay would mean that status quo should remain as it were before judgment. What assurance can there be of appeal succeeding? On the other hand, granting the stay would be denying a successful litigant of the fruits of his judgment. The applicant has not given to court sufficient materials to enable it to exercise its discretion in granting the order of stay.”*** 1. Further in the case of**Vishram Ravji Halai vs. Thornton & Turpin Civil Application No. Nai. 15 of 1990 [1990] KLR 365,**the Court of Appeal in discussing the conditions for stay stated as follows; ***“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 42 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.”*** 1. Imminent execution alone cannot form 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. To obtainstay of execution 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. In the case of **James Wangalwa & Another v Agnes Naliaka Cheseto [2012] eKLR,** the court held as follows: - “***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 is 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.”*** 1. 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.”*** 1. In the instant application, the applicant argues that stay should be granted to him because he has lived on the suit property for more than 60 years. The record shows that the applicant’s claim for adverse possession was struck out for want of jurisdiction on 27th February 2025 and that decision remains in force as the same has not been appealed against nor reviewed. 2. The respondent became proprietor of the suit property in 2002 upon purchase from the registered proprietor one Asmin Wamboka Mangula, the applicant’s grandmother. The applicant did not file a defence against or contest the cross Originating Summons filed by the respondent seeking both permanent and mandatory injunctions against the respondent. The trial court having found that there was no basis for the applicant’s presence on the suit property, allowed the respondent’s claim. 3. Stay pending appeal is not an entitlement of a party. Stay is granted upon exercise of discretion by the court. This discretion ought to be exercised judiciously and the applicant ought to demonstrate the conditions set out in Order 42 Rule 6 of the Civil Procedure Rules. The mere fact that the applicant herein states that he cannot afford to pay the sum of Kshs. 300, 000/= ordered to be paid by the trial court, cannot be a basis for grant of orders of stay of execution. From the material before me, the applicant has not demonstrated an arguable appeal with any chance of success. 4. The trial court ordered the applicant’s eviction. Imminent eviction is no proof of substantial loss as that is what the trial court on consideration of pleadings and evidence ordered. 5. In the premises, I find no merit in the application dated 8th May 2026 which I dismiss with costs to the respondent. 6. It is so ordered. **DATED, SIGNED AND DELIVERED AT KAKAMEGA IN OPEN COURT/VIRTUALLY THROUGH MICROSOFT TEAMS VIDEO CONFERENCING PLATFORM THIS 30TH DAY OF JULY 2026** **A. NYUKURI** **JUDGE** **In the presence of;** Ms Isokoni for the applicant Ms Were for the respondent Court Assistant: Delphine