RULING
By a notice of motion dated 5/6/26 the appellant/applicant seeks the following reliefs as against the respondents:
1) Spent
2) Spent
3) That pending the hearing and determination of the appeal, this Honorable court be pleased to grant the appellant/applicant conservatory orders staying the execution of the judgment and orders delivered on the 5/5/26 in Butere SPMC Succession Cause No. 106 of 2020
4) Pending the hearing and determination of the appeal, the court be pleased to grant the appellant/applicant stay of cancellation, revocation, rectification, alteration or interference with the appellant’s title to Land Parcel No. Marama/Shirotsa/927
5) That the land registrar, Kakamega county be restrained from implementing, registering or acting upon the decree and orders issued in Butere SPMC Succession Cause No. 106 of 2020 pending determination of the appeal
6) That costs of the application to abide the outcome of the appeal
The application is grounded on the affidavit of Dr. Gilbert Ongachi and on the other grounds listed on the face thereof.
The gravamen of the application is that the appellant/applicant is the registered proprietor of parcel Marama/Shirotsa/927 having allegedly purchased the same. The trial court delivered judgment on 5/5/26 revoking a grant and directing cancellation of the appellant’s title.
The appellant lodged an appeal challenging the whole judgment and there are fears that unless the stay orders are granted, the appellant shall suffer substantial loss.
The respondents did not respond to the application.
I have considered the application together with the affidavit in support. Order 42 rule 6(1) sets out the conditions for the grant of orders of stay of execution. The same include proof of substantial loss by the applicant if stay is not granted, provision of security for the due performance of the decree together with a demonstration that the application is made without undue delay.
In the present case the application was made without undue delay as the judgment was delivered on the 5/5/26 and the application filed on the 5/6/26 which is exactly one month thereafter. There is a genuine fear that the appellant may suffer substantial loss as he is the registered proprietor of a parcel subject of the appeal and currently is in possession. His fears that fish in ponds erected on the suit parcel may die unless the orders sought herein are granted are well grounded.
As regards security for due performance of the decree, in balancing the interest of the appellant to pursue an appeal to a higher court while preserving the substratum of the appeal or preventing the appeal from being rendered nugatory against the respondents’ interest in enjoying the fruits of the judgment, I will make an order that the appellant deposits a sum of Kshs. 50,000 in court being security for costs.
ORDERS
Accordingly, for the reasons set out above, the court finds merit in the application and makes the following orders:
1) There shall be stay of execution of the judgment of 5/5/26 Butere SPMC Succession Cause No. 106 of 2020 and all consequential orders of the trial court pending the hearing and determination of the appeal.In particular, the land registrar be and is hereby restrained from acting on the decree emanating from the said cause.
2) As a condition for the grant of stay of execution pending appeal, the appellant/applicant shall within thirty (30) days, deposit with the court a sum of Kshs. 50,000
3) The record of appeal shall be filed within 60 days
4) Directions as to the hearing of the appeal shall be taken on the 13/10/2026
5) The costs of the application shall be costs in the appeal
DATED, SIGNED AND DELIVERED
THIS 29 TH JUNE 2026
D.O. ONYANGO
JUDGE
1
By a notice of motion dated 5/6/26 the appellant/applicant seeks the following reliefs as against the respondents:
1) Spent
2) Spent
3) That pending the hearing and determination of the appeal, this Honorable court be pleased to grant the appellant/applicant conservatory orders staying the execution of the judgment and orders delivered on the 5/5/26 in Butere SPMC Succession Cause No. 106 of 2020
4) Pending the hearing and determination of the appeal, the court be pleased to grant the appellant/applicant stay of cancellation, revocation, rectification, alteration or interference with the appellant’s title to Land Parcel No. Marama/Shirotsa/927
5) That the land registrar, Kakamega county be restrained from implementing, registering or acting upon the decree and orders issued in Butere SPMC Succession Cause No. 106 of 2020 pending determination of the appeal
6) That costs of the application to abide the outcome of the appeal
The application is grounded on the affidavit of Dr. Gilbert Ongachi and on the other grounds listed on the face thereof.
The gravamen of the application is that the appellant/applicant is the registered proprietor of parcel Marama/Shirotsa/927 having allegedly purchased the same. The trial court delivered judgment on 5/5/26 revoking a grant and directing cancellation of the appellant’s title.
The appellant lodged an appeal challenging the whole judgment and there are fears that unless the stay orders are granted, the appellant shall suffer substantial loss.
The respondents did not respond to the application.
I have considered the application together with the affidavit in support. Order 42 rule 6(1) sets out the conditions for the grant of orders of stay of execution. The same include proof of substantial loss by the applicant if stay is not granted, provision of security for the due performance of the decree together with a demonstration that the application is made without undue delay.
In the present case the application was made without undue delay as the judgment was delivered on the 5/5/26 and the application filed on the 5/6/26 which is exactly one month thereafter. There is a genuine fear that the appellant may suffer substantial loss as he is the registered proprietor of a parcel subject of the appeal and currently is in possession. His fears that fish in ponds erected on the suit parcel may die unless the orders sought herein are granted are well grounded.
As regards security for due performance of the decree, in balancing the interest of the appellant to pursue an appeal to a higher court while preserving the substratum of the appeal or preventing the appeal from being rendered nugatory against the respondents’ interest in enjoying the fruits of the judgment, I will make an order that the appellant deposits a sum of Kshs. 50,000 in court being security for costs.
ORDERS
Accordingly, for the reasons set out above, the court finds merit in the application and makes the following orders:
1) There shall be stay of execution of the judgment of 5/5/26 Butere SPMC Succession Cause No. 106 of 2020 and all consequential orders of the trial court pending the hearing and determination of the appeal.In particular, the land registrar be and is hereby restrained from acting on the decree emanating from the said cause.
2) As a condition for the grant of stay of execution pending appeal, the appellant/applicant shall within thirty (30) days, deposit with the court a sum of Kshs. 50,000
3) The record of appeal shall be filed within 60 days
4) Directions as to the hearing of the appeal shall be taken on the 13/10/2026
5) The costs of the application shall be costs in the appeal
DATED, SIGNED AND DELIVERED
THIS 29 TH JUNE 2026
D.O. ONYANGO
JUDGE
1