https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3633

Angweye v Mulemi (Environment and Land Case 007 of 2022) [2026] KEELC 3633 (KLR) (3 June 2026) (Ruling) Neutral citation: [2026] KEELC 3633 (KLR) Republic of Kenya In the Environment and Land Court at Kakamega Environment and Land Case 007 of 2022 A Nyukuri, J June 3, 2026 Between Zephania Ngaira Angweye Plaintiff and Rodgers Mulemi Defendant Ruling Introduction 1.Before court is a notice of motion dated 18th December 2023, filed by the defendant seeking orders of stay of execution of the judgment delivered herein on 25th October 2023, pending hearing and determination of the intended appeal. He also sought costs. 2.The application is supported by the affidavit sworn by the defendant dated 18th December 2023 and supplementary affidavit dated 12th March 2025. The applicant’s case is that he was aggrieved by the judgment of this court and filed notice of appeal on 31st October 2023. That he has requested for certified proceedings which are yet to be supplied to him. 3.He maintained that if execution proceeds, the intended appeal will be an exercise in futility and will be rendered nugatory. That he has already lodged an appeal in the Court of Appeal being Appeal No. E204 of 2024. That he stands to suffer substantial loss if execution proceeds against him because he will be evicted from the suit property and that he will lose the developments and investments on the property which are worth millions of Kenya shillings. That if execution proceeds he will suffer irreparable damage and the appeal shall be rendered nugatory. Further that if execution proceeds, the substratum of the appeal will not be in existence. He attached a copy of record of appeal and a valuation report. 4.The application was opposed. The respondent filed replying affidavit dated 11th January 2024. He stated that stay granted by this court had lapsed and that he was in the process of executing the judgment when he was served with the instant application. That execution is a lawful process and having been put in motion does not amount to substantial loss. That the applicant has been in possession of the suit property illegally for 21 years since 2002, which has denied the respondent benefits thereof including rent. 5.It was his position that this suit has been in court for 10 years and that he has been greatly prejudiced. That if stay is granted, the respondent will suffer more. That the applicant has failed to demonstrate the nature of irreparable damage to be suffered as the land will still be there. That should stay be granted, the same should be on condition that the applicant deposits a sum of Kshs. 30, 000, 000/= as security for costs. 6.Parties herein filed submissions in respect of the application; both of which the court has duly considered. Analysis and Determination 7.The court has carefully considered the instant application together with the response thereto, as well as the rival submissions. The single issue before court is whether the applicant has met the threshold for grant of orders of stay of execution pending appeal. 8.Order 42 rule 6 of the Civil Procedure Rules provides for the jurisdiction 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.” 9.Therefore, where an applicant seeks stay of execution pending appeal, and having demonstrated 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, the court has discretion to grant orders of stay. 10.In the case of 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. 11.In the instant matter, the applicant argues that if stay is not granted, he will suffer substantial loss, his appeal shall be rendered nugatory and the substratum of the appeal will become non-existent as he has developed and invested in the suit property by putting up buildings which will be demolished if stay is not granted. The fact that the defendant has developments on the suit property was not controverted by the respondent. 12.I have considered the fact that the suit property has buildings. The applicant stands to suffer substantial loss. However, being on the suit property, means that the respondent who has a judgment in his favour will be denied the benefits thereof. Therefore, it is incumbent on the court to balance the two opposing interests and rights. 13.For the above reasons, I hereby order stay of execution of the judgment herein for a period of 24 months, on condition that the defendant/applicant shall deposit in court within 45 days of today, a sum of Kshs. 5, 000, 000/= (five Million Kenya Shillings) being security for the due performance of the decree that may ultimately be made against him. In default, execution to proceed. I make no order as to costs. 14.It is so ordered. DATED, SIGNED AND DELIVERED AT KAKAMEGA IN OPEN COURT/VIRTUALLY THROUGH MICROSOFT TEAMS VIDEO CONFERENCING PLATFORM THIS 3RD DAY OF JUNE, 2026.A. NYUKURIJUDGEIn the presence of;Mr. Munyambu for the plaintiff.Mr. Amasakha ans Ms Kadenyi for the defendant.Court Assistant: Delphine.