1. The Applicants moved this Court through the Notice of Motion dated 27th October 2025 seeking, principally, an order of stay of execution of the decree issued in Embu CMCC–ELC Case No. E016 of 2023 on 16th October 2025, pending the hearing and determination of this appeal.
2. The application is supported by the affidavit of the 1st Applicant sworn on 27th October 2025. The Applicants state that they are aggrieved by the judgment of the trial court which allowed the Respondent’s counterclaim and dismissed their suit with costs.
3. It is the Applicants’ case that unless stay is granted, the decree will be executed to their prejudice, thereby rendering the appeal nugatory. They contend that they will be denied access to, and use of, the open space at Matakari, allegedly derived from land parcel number GATURI/GITHIMU/649, that their authorization letter dated 23rd November 2022 will be revoked, and that they will be exposed to execution for costs.
4. The Applicants further depose that the application was filed timeously and that they are ready to abide by any conditions on security that the Court may impose.
5. The Respondent opposed the application through a Replying Affidavit. He depones that he has been in occupation and utilization of the subject open space since August 2020 pursuant to a temporary allocation by the County Government of Embu, that the Applicants’ alleged authorization had expired before the impugned judgment was delivered, and that there is therefore nothing to preserve by an order of stay.
6. The Respondent further points out that during the pendency of the suit before the trial court, the Applicants’ application for temporary injunctive relief was dismissed, and that granting stay at this stage would occasion him prejudice as the party in occupation.
7. The parties did not file submissions. I have nevertheless considered the affidavits on record and the applicable law.
Legal Framework
8. The grant of stay of execution pending appeal is governed by Order 42 Rule 6(2) of the Civil Procedure Rules. The provision sets out three conditions which an applicant must satisfy, and which must be met cumulatively, namely: demonstration of substantial loss, absence of unreasonable delay, and provision of security for the due performance of the decree.
9. The jurisprudence on this jurisdiction is settled. In James Wangalwa & Another v Agnes Naliaka Cheseto [2012] eKLR, the Court underscored that substantial loss is the cornerstone of the jurisdiction, and that it must be demonstrated by evidence and not by mere apprehension.
Substantial Loss
10. The Applicants contend that they will suffer substantial loss if execution proceeds, principally on account of being denied access to the disputed open space and the revocation of their authorization.
11. The Respondent, however, has placed before Court evidence that he has been in occupation and utilization of the subject open space since 2020. That position is consistent with the record of the trial court, including the dismissal of the Applicants’ application for temporary injunctive relief.
12. Substantial loss is not established by the mere fact that a party has lost a case, nor by an assertion that execution will issue. It must be shown that execution will result in a state of affairs that would irreversibly affect the applicant or render the appeal academic.
13. In the present matter, the material before Court suggests that it is the Respondent who is in possession of the disputed space. Granting a stay would therefore not preserve the status quo but would have the effect of unsettling it. That is not the purpose of an order for stay pending appeal.
14. I am therefore not satisfied that the Applicants have demonstrated substantial loss within the meaning of Order 42 Rule 6(2).
Delay and Security
15. The judgment was delivered on 16th October 2025, and the present application was filed on 27th October 2025. I am satisfied that the application was filed without unreasonable delay.
16. The Applicants have also expressed their willingness to provide security. However, the issue of security only arises once substantial loss has been established. Where that foundational requirement is not met, the offer of security does not advance the application.
Disposition
17. In light of the foregoing, I find that the Applicants have failed to satisfy, sequentially and cumulatively, the three conditions required under Order 42 Rule 6(2) of the Civil Procedure Rules for the grant of an order of stay of execution. Although the application was filed without unreasonable delay, the Applicants have not demonstrated that they stand to suffer substantial loss if stay is declined. That failure is fatal to the application, and the question of security does not arise for favourable consideration.
18. The Notice of Motion dated 27th October 2025 is accordingly dismissed.
19. Costs of the application shall abide the outcome of the appeal.
It is so ordered.
DATED, SIGNED AND DELIVERED AT EMBU THIS 12TH DAY OF FEBRUARY, 2026.
.........................................................
E. C CHERONO
JUDGE
ENVIRONMENT AND LAND COURT
In the presence of;
1. M/S Kamochu H/B for Muthoni Ndege for the Appellant/Applicant.
2. Respondent/Advocate-absent.
3. Diana Kemboi C/A.