[2025] KEELC 10 (KLR)

Shilaro v Shilaro & another (Environment and Land Appeal E017 of 2022) [2025] KEELC 10 (KLR) (16 January 2025) (Ruling)

Neutral citation: [2025] KEELC 10 (KLR)

Republic of Kenya

In the Environment and Land Court at Kakamega

Environment and Land Appeal E017 of 2022

DO Ohungo, J

January 16, 2025

Between

John Shilaro

Appellant

and

Samuel Shindani Shilaro

1st Respondent

Shem Festo Shilaro

2nd Respondent

(Being an appeal from the judgment and decree of the Senior Principal Magistrate’s Court at Butali (Hon. Z J Nyakundi, Senior Principal Magistrate) delivered on 4th April 2022 in Butali MCELC No. 9 of 2019)

Ruling

1. I delivered judgment in this appeal on 25th April 2024. I found merit in the appeal, set aside the judgment of the Subordinate Court and replaced it with the following orders:a.The respondents’ counterclaim is dismissed.b.The respondents to vacate the parcel of land known as N/Kabras/Surungai/1148 within 90 (ninety) days from the date of delivery of this judgment. In default, the Subordinate Court to issue an eviction order.c.The caution registered against land parcel number N/Kabras/Surungai/1148 on 21st June 2018 as entry number 7 in favour of Peter Juma Shilaro be removed by the Land Registrar.d.In view of the close family relationship between the parties, I make no order as to costs of both this appeal and the suit before the Subordinate Court.

2. Thereafter, the Respondents/Applicants filed Notice of Motion dated 6th May 2024, which is the subject of this ruling. The Respondents seek stay of execution of the judgment of this court, the decree and all consequential orders, pending hearing and determination of an appeal to the Court of Appeal. The application is supported by an affidavit sworn by Samuel Shindani Shilaro. He deposed that the Respondents had filed Notice of Appeal and were in the process of compiling a Record of Appeal. He added that they would suffer substantial and irreparable loss if stay is not granted.

3. The application is opposed through a Replying Affidavit sworn by the Appellant. He deposed that Samuel Shindani Shilaro does not have a house on the suit property but only ploughs and will therefore not suffer any irreparable damage.

4. The Respondents/Applicants filed a supplementary affidavit sworn on 4th June 2024 by Samuel Shindani Shilaro. He deposed that they had since filed Civil Appeal No. E118 of 2024 at the Court of Appeal at Kisumu and had served the Appellant herein. He further stated that Respondents/Applicants are in possession and occupation of the suit property.

5. The application was canvassed through written submissions. The Respondents/Applicants filed submissions dated 6th May 2024 while the Appellant filed submissions dated 28th June 2024.

6. I have considered the application, the affidavits and the submissions. The court’s power to grant stay pending appeal is guided by Order 42 rule 6 (1) and (2) of the Civil Procedure Rules, 2010 which provides as follows: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 sub rule (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. It follows therefore that an applicant seeking stay pending appeal must demonstrate that substantial loss will result to him if stay is not granted, and that the application has been made without unreasonable delay. Such an applicant is further required to give such security as the court may order for the due performance of the decree. See Kenya Power & Lighting Co. Ltd v Kigaita Ngare Unduthu & 36 others [2020] eKLR and Kenya Shell Limited v Benjamin Karuga Kibiru & another [1986] eKLR. As Platt Ag JA (as he then was) stated in Kenya Shell Limited v Benjamin Karuga Kibiru & another (supra), substantial loss is the corner stone of the jurisdiction to grant stay of execution pending appeal. It is virtually impossible for such an application to succeed if an applicant fails to demonstrate that he will suffer substantial loss if stay is not granted.

8. The record shows that the Respondents/Applicants filed Notice of Appeal on 3rd May 2024. There is therefore in existence an appeal as is contemplated by Order 42 rule 6 (4). The Respondents/Applicants have also availed material indicating that they have since filed Civil Appeal No. E118 of 2024 at the Court of Appeal at Kisumu.

9. The judgment of this Court required the Respondents/Applicants to vacate the suit property within 90 (ninety) days of delivery of the judgment and in default, the Subordinate Court would issue an eviction order. I am persuaded that an eviction would amount to substantial loss. I am also satisfied that the present application was filed timeously.

10. In view of the foregoing discourse, I find merit in Notice of Motion dated 6th May 2024. I will limit the life of the stay orders, to encourage the Respondents/Applicants to proactively prosecute the appeal. I therefore make the following orders:a.I grant stay of execution of the judgment and decree herein pending hearing and determination of the Respondents/Applicants’ appeal to the Court of Appeal.b.The stay orders shall remain in force for a period of only 2 (two) years from the date of delivery of this ruling, unless otherwise extended in the Appellate Court.c.I make no order as to costs of the application.

DATED, SIGNED, AND DELIVERED THIS 16TH DAY OF JANUARY 2025. D. O. OHUNGOJUDGEDelivered in the presence of:No appearance for the AppellantMr Nasongo for the RespondentsCourt Assistant: B Kerubo