https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3785

Jefwa v Regine & 3 others (Environment and Land Appeal E004 of 2026) [2026] KEELC 3785 (KLR) (17 June 2026) (Ruling) Neutral citation: [2026] KEELC 3785 (KLR) Republic of Kenya In the Environment and Land Court at Malindi Environment and Land Appeal E004 of 2026 FM Njoroge, J June 17, 2026 Between Stephen Kenga Jefwa Appellant and Maurine Regine & 3 others Respondent Ruling 1.The notice of motion dated 16th January 2026 seeks an orders of stay of execution pending hearing and determination of the present appeal. The application is supported by the sworn affidavit of then appellant, dated 23rd January 2026. The applicant states that the judgment in the magistrate’s court ordered that his certificate of title to the suit land known as CR 67102 (Plot No 10553/III/MN be cancelled; that the Land Registrar is likely to cancel the same at any time and in that event the appellant shall irreparably suffer. 2.The application is opposed by the respondents through the sworn replying affidavit of the 1st respondent. The deponent states that the application does not attain the threshold for the granting of the desired stay; she states that the appeal is not arguable and that that fact is evident from its grounds; that there is no irreparable damage to be suffered and that the cancellation of the title held in the appellant’s name would simply restore the suit land to a school which is currently in operation on the suit land; that if a stay is granted the fate of the more than 350 school children will be in the hands of the appellant; that the children come from a vulnerable background yet the appellant is only interested in making money out of them; that at the trial the trial court was convinced to grant the cancellation orders notwithstanding that the appellant was granted a chance to be heard, meaning that the respondents were deserving of such orders; that the respondents have a right to have the fruits of their judgment; that the title had been issued to a private individual in respect of community land on which a school is situate; that the appellant was a trustee who registered the land in his name without informing the other trustees, and that the trust and the school may suffer greatly if stay orders are issued. 3.The principles for granting an order of stay of execution under order 42 rules (1) and (2) are now well established. Order 42 rule 6 of the Civil Procedure Rules reads as follows: -“ 6.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 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.(3)Notwithstanding anything contained in sub rule (2), the court shall have power, without formal application made, to order upon such terms as it may deem fit a stay of execution pending the hearing of a formal application.(4)For the purposes of this rule an appeal to the Court of Appeal shall be deemed to have been filed when under the Rules of that Court notice of appeal has been given.(5)An application for stay of execution may be made informally immediately following the delivery of judgment or ruling.(6)Notwithstanding anything contained in sub rule (1) of this rule the High Court shall have power in the exercise of its appellate jurisdiction to grant a temporary injunction on such terms as it thinks just provided the procedure for instituting an appeal from a subordinate court or tribunal has been complied with.” 4.In an application for stay, the applicant must demonstrate that the application has been made without unreasonable delay, that they will suffer substantial loss unless the order is made, and that they are willing to provide security for the due performance of the decree. 5.Having stated as above, I will now address the merits of the application. 6.First, for the purposes of order 42 rule 6 there is an appeal in place since the memorandum of appeal dated 23/1/2026 is already filed before this court. 7.Secondly, I have considered the respondent’s ground of opposition that there is no arguable appeal. If even one ground of appeal can be established to be arguable, an appeal ought to be given a chance to prosecute his appeal. I have examined the grounds in the memorandum of appeal. Not all of them are on substance of the judgment; some of them are premised on procedure, for example that the trial magistrate relied on statements that had been deleted from the pleadings through amendment thereby basing his judgment on matters of evidence that were no longer on the record, took into account unnecessary considerations that should not have been taken into account and thereby misdirected himself in law and occasioned a miscarriage of justice. Other grounds dwell on the merits of the court’s reasoning that helped it arrive at its decision in the matter. In the circumstances I do not agree with the respondent that there is no arguable appeal. 8.Thirdly, the application has been filed timeously on 31/1/2026 the judgment having been delivered on 14th January 2026. 9.Fourthly, on irreparable loss, thought the title is in the name of the appellant who claims to have purchased the land for valuable consideration, this court notes that the appellant does not dispute that there is a school with a pupil population of 350 thereon. This court hardly thinks that any cancellation of title would lead to an immediate disposal of the suit land as it is in use as a school premises. It was observed in James Wangalwa & Another v Agnes Naliaka Cheseto [2012] eKLR, that:“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.” 10.Consequently, this court not being persuaded that there is any risk of substantial loss of that there are factors that would negate the core of the applicant’s appeal perchance he became the successful party in the appeal. I thus find that the application dated 23/1/2026 lacks merit and the same is dismissed with costs to the respondents. Mention on 30th September 2026 for directions. Record of appeal to be filed in 30 days from today. The Deputy Registrar to bring up lower court file. DATED, SIGNED AND DELIVERED AT MALINDI ON THIS 17TH DAY OF JUNE, 2026.MWANGI NJOROGEJUDGEELC, MALINDI