REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT BUSIA
ELC LA NO. E014 OF 2026
DAN MASINDE ………..……………. 1ST APPELLANT/APPLICANT
JOHN ARMSTRONG OJIAMBO
ADAKI ………………………………… 2ND APPELLANT/APPLICANT
= VERSUS =
HENRY MUGENI WANDERA ……..……...…… 1ST RESPONDENT
THE LAND REGISTRAR, BUSIA …………….. 2ND RESPONDENT
THE ATTORNEY GENERAL …………..…..…. 3RD RESPONDENT
R U L I N G
1. Before this Honourable Court for determination is a Notice of Motion dated 2nd June 2026, brought under Order 42 Rule 6 of the Civil Procedure Rules, 2010, sections 1A, 1B, 3A and 63 (e) of the Civil Procedure Act, Cap 21, in which the Applicant is seeking the following orders:
a) Spent
b) Spent
c) That pending the hearing and determination of the intended appeal, this Honourable Court be pleased to grant an order of stay of execution of the judgment and decree delivered on 21st May 2026 in Busia MCELC/E152/2021 and in particular the orders for eviction, demolition of the structures and permanent injunction issued in favour of the 1st Respondent
d) That this Honourable Court be pleased to make such further or other orders as it may deem fit and just for the preservation of the subject matter of the appeal.
e) That the costs of this application be in the cause.
2. The Application is supported by the affidavit of DAN MASINDE dated and sworn on 2nd June 2026.
THE APPLICANT'S CASE
3. The Applicant avers that the appeal arises from the whole of the judgment and decree delivered on 21st May 2026, in Busia MCEL/E152/2021, where the trial court dismissed their suit and allowed the 1st Respondent's counterclaim.
4. That the trial court granted orders of eviction against them, demolition of structures erected on land parcel NO BUKHAYO/MATAYOS/2244, a permanent injunction restraining them from entering, occupying, cultivating, constructing on or interfering with the said land, and costs of the suit.
5. The applicant is apprehensive that, unless this Honourable Court grants the orders of stay of execution of the said judgment and decree, they are liable to immediate execution.
6. Being aggrieved by the said judgment, they have lodged an appeal against the same, which raises serious and arguable points of law and fact.
7. That the intended appeal is arguable and has overwhelming chances of success because the learned trial magistrate failed to properly evaluate the totality of the evidence placed before the lower court.
8. That unless a stay is granted, the 1st Respondent may proceed to evict them from the suit property and demolish the structures standing thereon before the appeal is heard and determined.
9. That they are likely to suffer loss, hardship, grave prejudice and damage which cannot be adequately compensated by an award of damages if the said eviction and demolition proceed.
10. That the intended eviction threatens to dispossess them, destroy their developments and permanently alter the status and condition of the suit property.
11. That once the demolition and eviction are undertaken, the substratum and subject matter of the appeal shall have been destroyed, and the appeal shall be rendered nugatory.
12. The application has been made without undue delay as the judgment was delivered on 21st May 2026 and this application has been brought promptly.
13. The Applicants further filed a Supplementary Affidavit dated 24th June 2026, and sworn by Dan Masinde on the same date to further support the Application.
14. In the supplementary affidavit, the Applicant avers that the Replying affidavit by the Respondent is misleading, contested and argumentative and intended to defeat the Applicant's prayer for stay of execution. Further grounds have also been raised thereon, which this court has taken into consideration.
15. The Applicants filed submissions dated 23rd June 2026. They submit that the applicants have satisfied the condition set out under Order 42 Rule 6(2) of the Civil Procedure Rules 2010, and humbly prayed that this Honourable Court be pleased to allow the Notice of Motion dated 2nd June 2026 and Grant a temporary stay of execution of the judgment and decree delivered on 21st May 2026 in Busia MCELC/152/2021, and in particular the orders for eviction, demolition, of structures, and permanent injunction issued in favour of the 1st Respondent, pending the hearing and determination of the appeal. They relied on various authorities, which I have carefully considered.
THE RESPONDENT'S CASE
16. The 1st Respondent filed a replying affidavit dated 17th June 2026 and sworn by Henry Mugeni Wandera on the even date in opposition to the notice of Motion dated 2nd June 2026.
17. The Respondent deponed that the application dated 2nd June 2026 lacks merit and ought to be dismissed.
18. That while in the lower court, the Appellants applied for leave to amend their plaint through the firm of Shaban & Associates and obtained leave to do so, but failed to subsequently file and serve their amended plaint in line with the leave granted. The lower court nevertheless considered their evidence, which was led in support of the draft amended plaint on merits and dismissed the Plaint.
19. That he filed and served his amended defence and counterclaim in the lower court and the applicants herein never filed any defence to his counterclaim, which was considered on merit vis-à-vis the evidence of the applicants before the trial court.
20. That in the present circumstances, where the applicants never filed any statements of defence to the counterclaim, the averments in the counterclaim stood admitted before the trial court, and there is no justification for the court to issue any orders of stay at this stage.
21. The Respondent filed submissions dated 3rd July 2026 in opposition to the Application dated 2nd June 2026.
22. Counsel submitted that the applicants have failed to demonstrate that they have an arguable appeal and that their appeal is frivolous.
23. That the applicants have failed to demonstrate how the appeal will be rendered nugatory if the application is declined. And that the 1st Respondent, who was successful in securing the eviction orders against the invading 2nd applicant, is entitled to enjoy the fruits of his judgments, and he will suffer great prejudice by the continued presence of the squatting 2nd applicant on the 1st Respondent's land.
24. That the applicants have not offered any security for the due performance of the respondent's decree if their appeal eventually fails. And that the applicants have failed to demonstrate a substantial loss
ANALYSIS AND DETERMINATION
25. I have carefully considered the Notice of Motion dated 2nd June 2026, the affidavits on record, the rival submissions by counsel and the applicable law together with the authorities relied upon by both parties herein.
26. The issue that arises for determination before this court is whether the Applicant has met the conditions for the grant of a stay of execution pending appeal.
27. Order 42 Rule 6(2) of the Civil Procedure Rules provides that no order for stay shall issue unless the Court is satisfied that:
a) The Applicant will suffer substantial loss unless the order is made;
b) The application has been made without unreasonable delay; and
c) such security as the Court orders for the due performance of the decree has been given.
28. The requirements under Order 42 Rule (6)(2) are not disjunctive but cumulative. Consequently, an applicant must satisfy the court that he stands to suffer substantial loss unless the order is granted, that the application has been made without unreasonable delay, and that he has furnished such security as the court may order for the due performance of the decree. In the case of James Wangalwa & Another v Agnes Naliaka Cheseto [2012] eKLR, the Court observed that “These conditions are the essence of Order 42 Rule 6 CPR which I need not recite in verbatim. The conditions share an inextricable bond such that the absence of one will affect the exercise of the discretion of the court in granting stay of execution. The Court of Appeal in Mukuma V Abuoga (1988) KLR 645 reinforced this position.
On whether the application was filed without unreasonable delay
29. The impugned judgment was delivered on 21st May 2026, while the present application was filed on 2nd June 2026, shortly thereafter. In the case of Jomo Kenyatta University of Agriculture & Technology v Kwanza Estates Limited (Environment and Land Appeal E026 of 2023) [2024] KEELC 13569 (KLR), the court pronounced itself on the issue and stated that:
“The Applicant must file the application without undue delay in order for the court to grant an order of stay of execution. In the case of Jaber Mohsen Ali & Anor -v- Priscillah Boit & Another [2014] eKLR the court held that what amounts to unreasonable delay is dependent on the surrounding circumstances of each case.”
30. In the present case I am satisfied that the Applicants have satisfied this first condition. The application was presented without unreasonable delay. The first requirement has therefore been met.
On whether the Applicant has demonstrated a substantial loss
31. The cornerstone in an application for a stay of execution is proof of substantial loss. It is not sufficient for an applicant merely to state that execution is imminent or that an appeal has been lodged. The Applicant must demonstrate by evidence that unless a stay is granted, he would suffer a loss that cannot adequately be compensated.
32. In the case of James Wangalwa & Anor v Agnes Naliaka [2012] eKLR, the court stated 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…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 a successful party in the Appeal.”
33. In the present case, the decree directs the Applicants` eviction from the suit property, demolition of the structures standing thereon and permanently restrains them from entering or interfering with the suit land.
34. Unlike a purely monetary decree, execution of orders for eviction and demolition permanently alters the status of the property and may occasion irreversible consequences before an appellate court has had an opportunity to pronounce itself on the merits of the intended appeal. Once structures are demolished and possession is surrendered, restoration to the original position may not be possible even if the appeal eventually succeeds.
35. The Court therefore finds that the Applicants have demonstrated that execution of the decree, particularly the orders for eviction and demolition, is likely to occasion substantial loss to the Applicants.
On whether security has been offered
36. Order 42 Rule 6(2)(b) requires an applicant to furnish security for the due performance of the decree. The purpose of security is not to punish the applicant but to safeguard the interests of the successful litigant pending the appeal.
37. Although the Applicant has merely expressed willingness to abide by such terms as the Court may impose, the Court retains discretion to determine appropriate security depending on the circumstances of each case. In the case of Mayenga & 2 others -v- Khamis & another [2024] KEELC 7407 (KLR), the court provided under paragraph 28 that:
“This provision of the law notwithstanding from the face value, this court is not bound by the type of security offered by an applicant. It can make appropriate orders which serve the interest of justice taking into account the fact that money depreciates unless it is kept in an interest earning account for the period of the appeal.”
38. The purpose of the application for stay of execution pending appeal is to preserve the subject matter in dispute so that the right of the appellants, who are exercising his undoubted right of appeal, is safeguarded. In the case of In the case of Mwamdzengo & another v Mwalimu & 10 others [2025] KEELC 5850 (KLR), the court provided that:
“Nonetheless, as stated above, the issue of preservation of the suit property herein I must admit is crucial in this matter. In the event that the execution is not prevented that the same is bound to adversely affect the Applicants herein. The case of “Odd Jobs – Versus - Mubia” (Supra) exception therefore apply to this instant case. Purely, in the interest of justice, conscience and Equity based on the overriding objective, the court is to not only ensure timely disposal of matters but ensure justice is met through equal protection of rights of the parties before it.”
CONCLUSION & FINDINGS
39. Consequently, upon careful analysis of the framed issue herein, this court finds that the Notice of Motion dated 2nd June 2026 has merit and is therefore allowed in terms of the prayer three (3) in the following manner:
a) That there shall be an order of stay of execution of the judgment and decree delivered on 21st May 2026 in Busia MCELC/E152/2021 and in particular the orders for eviction, demolition of structures and permanent injunction issued in favour of the 1st Respondent pending the hearing and determination of the appeal herein.
b) That costs shall be in the cause.
Ruling dated, signed and delivered in open Court on this 20th day of July 2026.
C. MUGAMBI
JUDGE
20TH JULY 2026
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