A. Introduction
1. An appeal opens the door to appellate review; it does not, without more, close the door to execution. A successful litigant remains entitled to the fruits of his judgment unless the party seeking to suspend the decree satisfies the conditions prescribed by law.
2. Before the Court is the Appellants’ Notice of Motion dated 4th May 2026. The application is expressed to be brought under, among other provisions, Order 42 rule 6 and Order 51 rule 1 of the Civil Procedure Rules, sections 3 and 3A of the Civil Procedure Act and section 13(1) of the Environment and Land Court Act.
3. The Applicants principally seek an order staying execution of the judgment delivered on 29th April 2026, together with all consequential orders, pending the hearing and determination of their appeal. They also prayed that their draft memorandum of appeal be deemed duly filed and that the costs of the application abide by the outcome of the appeal.
4. The application is supported by the affidavit of Mohamed Mohamud Farah sworn on 4th May 2026 and a further affidavit filed in response to the Respondent’s opposition. The Respondent opposed it through his replying affidavit sworn on 29th June 2026. The application was canvassed through written submissions.
B. Background
5. The dispute concerns the ownership, possession and use of Plot No. 2524, measuring approximately 1.4167 hectares and situated within Bulla Medina, Garissa Township.
6. In the judgment delivered on 29th April 2026, the trial court found that the Respondent had proved his claim on a balance of probabilities and entered judgment against the Applicants jointly and severally. The court:
a. declared the Respondent the lawful and beneficial owner of Plot No. 2524;
b. permanently restrained the Applicants from entering upon, remaining on or otherwise interfering with the property;
c. directed the Applicants to remove all structures erected on the property within ninety days, failing which eviction would issue;
d. awarded the Respondent Kshs. 500,000 as general damages for trespass;
e. awarded the Respondent costs and interest; and
f. directed the Officer Commanding Station, Garissa Police Station, to supervise compliance.
7. Aggrieved by the judgment, the Applicants lodged the present appeal. Their memorandum of appeal dated 4th May 2026 challenges, among other matters, the Respondent’s root of title, the trial court’s treatment of the evidence from the County Directorate of Lands, Survey and Physical Planning, its consideration of Embu Petition No. 2 of 2011, and its conclusion that the Applicants were trespassers.
C. The Applicants’ Case
8. The Applicants contend that the judgment has placed the parties in a precarious position regarding occupation of the suit property and the possibility of eviction. They maintain that their appeal is arguable and has high prospects of success.
9. The 1st Applicant deposes that the Respondent is in the process of commencing execution and that execution will occasion the Applicants irreparable loss and damage and render the appeal nugatory. He further states that the application was brought without unreasonable delay, the judgment having been delivered on 29th April 2026 and the application filed on 4th May 2026.
10. In their written submissions, the Applicants rely on Order 42 rule 6(2) of the Civil Procedure Rules and the decisions in Antoine Ndiaye v African Virtual University [2015] eKLR and James Wangalwa & Another v Agnes Naliaka Cheseto [2012] eKLR . They submit that substantial loss is the cornerstone of the jurisdiction to grant a stay and that the Court should preserve the subject matter of the appeal.
11. In the further affidavit, the 1st Applicant maintains that the application satisfies Order 42 rule 6. He nevertheless asserts that furnishing security is not mandatory in disputes concerning land.
12. The Applicants also rely on RWW v EKW [2019] eKLR for the proposition that the purpose of stay is to preserve the subject matter of an appeal and safeguard an appellant’s right of appeal.
13. They accordingly pray that execution of the judgment and decree be stayed pending the hearing and determination of the appeal.
D. The Respondent’s Case
14. The Respondent opposed the application through his Replying Affidavit, sworn on 29th June 2026, and written submissions dated 13th July 2026, on the ground that it does not satisfy the conditions prescribed by Order 42 rule 6(2) of the Civil Procedure Rules. He contends that the Applicants have made generalized allegations of irreparable harm without identifying the specific loss they are likely to suffer.
15. The Respondent submits that the Applicants have not particularized or produced evidence of the substantial loss they are likely to suffer if execution proceeds.
16. In support of his position on substantial loss, the Respondent relies on Kenya Shell Limited v Benjamin Karuga Kibiru & Another [1986] KLR 410 and James Wangalwa & Another v Agnes Naliaka Cheseto [2012] eKLR . He submits that substantial loss is the cornerstone of an application for stay and that execution, being a lawful process, does not by itself constitute substantial loss.
17. The Respondent further submits that the Applicants have neither furnished nor offered security for due performance of the decree. Relying on Vishram Ravji Halai v Thornton & Turpin (1963) Ltd [1990] KLR 365 , he argues that the Court’s discretion under Order 42 rule 6 is circumscribed by the requirements of substantial loss, absence of unreasonable delay and provision of security.
18. The Respondent also relies on Arun C Sharma v Ashana Raikundalia t/a Raikundalia & Co. Advocates & 2 Others [2014] eKLR for the proposition that security under Order 42 rule 6 is intended to guarantee due performance of the decree that may ultimately remain binding upon the Applicants. He submits that the assertion that security is unnecessary in land disputes is inconsistent with the express language of Order 42 rule 6(2)(b).
19. According to the Respondent, he has been kept out of the property since 2024, when the Applicants entered upon it and commenced fencing and construction. He argues that granting a stay would prolong his deprivation of the fruits of the judgment.
20. In the alternative, the Respondent submits that any stay granted should be conditional upon the Applicants furnishing security of not less than Kshs. 5,000,000 and preserving the property against further construction, development or alteration.
E. Issue for Determination
21. Having considered the application, the affidavits, the memorandum of appeal and the parties’ written submissions, the sole issue for determination is:
Whether the Applicants have satisfied the requirements for grant of stay of execution pending appeal under Order 42 rule 6 of the Civil Procedure Rules.
F. Applicable Legal Principles
22. The starting point is Order 42 rule 6(1) of the Civil Procedure Rules. It provides that an appeal does not operate as a stay of execution. The institution of an appeal therefore neither suspends the decree nor deprives the successful litigant of the right to enforce it. A party who seeks to interrupt execution must obtain an order of stay upon satisfying the conditions prescribed by law.
23. Those conditions are expressly set out in Order 42 rule 6(2), which provides:
“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.”
24. The language of the rule is prohibitory. The words “no order for stay of execution shall be made unless” limit the Court’s discretion. An applicant must demonstrate substantial loss, approach the Court without unreasonable delay and submit to the provision of security for due performance of the decree.
25. These requirements are cumulative and must be satisfied conjunctively rather than selectively. Compliance with one cannot compensate for failure to satisfy another. In Carter & Sons Ltd v Deposit Protection Fund Board & 2 Others, Civil Appeal No. 291 of 1997 , the Court of Appeal affirmed that the discretion to grant stay must be exercised within the conditions prescribed by the rule and that a decree-holder should not be deprived of the fruits of a decree merely because the judgment-debtor has preferred an appeal. Prompt filing, therefore, cannot cure the absence of evidence of substantial loss or a failure to address security for due performance of the decree.
26. In Butt v Rent Restriction Tribunal [1979] KECA 22 (KLR), [1982] KLR 417 , the Court of Appeal affirmed that the power to grant stay is discretionary and should be exercised in a manner that does not render an appeal ineffectual. That discretion, however, must be exercised within the statutory framework governing the particular application. The general desirability of preserving an appeal does not displace the conditions expressly imposed by Order 42 rule 6.
27. The principal inquiry under Order 42 rule 6(2)(a) is whether the applicant has demonstrated substantial loss. Substantial loss is not established merely by showing that execution is imminent, that possession may change, or that the applicant will experience the ordinary consequences of an adverse judgment. Execution is the lawful process by which a successful litigant obtains the benefit of a decree.
28. In Machira t/a Machira & Co. Advocates v East African Standard (No. 2) [2002] KEHC 1167 (KLR) , the Court emphasized that a litigant seeking stay must place before the Court cogent particulars of the loss apprehended. The Court cannot act merely upon the applicant’s fear of execution while disregarding the decree-holder’s lawful entitlement to the benefit of the judgment.
29. A bare assertion that execution will cause substantial loss or render an appeal nugatory is therefore insufficient. The threatened loss must be identified, explained and supported by material from which the Court can objectively assess its nature and probable effect.
30. The word “substantial” denotes loss that is real, significant and consequential, rather than loss that is merely nominal or an ordinary incident of execution. In Tropical Commodities Suppliers Ltd & Others v International Credit Bank Ltd (in liquidation) [2004] 2 EA 331 , substantial loss was described as loss of real worth or value, as opposed to merely nominal loss.
31. Similarly, in Mukuma v Abuoga [1988] KECA 107 (KLR) , the Court of Appeal identified substantial loss as the cornerstone of the jurisdiction to preserve the subject matter pending appeal. The applicant must consequently demonstrate that execution would materially impair the subject matter or produce consequences that could not adequately be reversed, restored or remedied if the appeal ultimately succeeded.
32. The inquiry must be connected to the particular terms of the decree. Where the decree concerns land, buildings or possession, an applicant should identify the nature of his interest, the use to which the property is put, the persons in occupation, the structures affected and the practical consequences of eviction, demolition or transfer. Where monetary obligations are involved, the applicant must explain why satisfaction of the decree would occasion substantial loss. The Court cannot supply these matters through conjecture where the applicant has placed no supporting material before it.
33. The arguability or perceived strength of the appeal is not one of the express conditions under Order 42 rule 6(2). A memorandum of appeal may demonstrate that an appeal has been instituted, but it does not prove substantial loss. The Court must, moreover, avoid undertaking a premature examination of the merits of the appeal in an application confined to stay of execution.
34. Order 42 rule 6(2)(b) separately requires security for due performance of such decree or order as may ultimately remain binding upon the applicant. This is distinct from security for costs. Its purpose is to protect the decree-holder against the risk that, after execution has been postponed throughout the appellate process, the decree may remain unperformed if the appeal fails.
35. The nature and amount of security are matters for the Court to determine according to the character of the decree and the circumstances of the case. An applicant need not invariably deposit a predetermined sum before the application is heard. The Court may direct the appropriate form, amount and time within which security is to be furnished.
36. That power does not render the requirement optional. Although the Court determines the nature and quantum of security, the applicant must engage with the requirement by offering security or expressing an unequivocal readiness to comply with reasonable terms imposed by the Court. In Focin Motorcycle Co. Limited v Ann Wambui Wangui & Another [2018] eKLR , the Court emphasized that an applicant’s offer to furnish security is a mark of good faith and demonstrates willingness to satisfy the decree should the appeal fail.
37. A party who categorically maintains that security is unnecessary does not merely omit to propose its form or amount; he repudiates a condition expressly imposed by Order 42 rule 6(2)(b).
38. The rule contains no exemption for decrees concerning land. The nature of the subject matter may affect the form and quantum of security, but it does not extinguish the requirement. Where a decree contains both monetary and non-monetary obligations, the Court may fashion suitable terms addressing the particular obligations that may ultimately remain binding upon the applicant.
39. The right of appeal and the decree-holder’s right to enjoy the fruits of judgment must both be respected. That balance is achieved through faithful application of Order 42 rule 6(2), not by relaxing its requirements. Stay is therefore not available merely because an appeal has been filed or because execution will make the appeal more consequential. It is available only where the applicant demonstrates substantial loss, acts without unreasonable delay and submits to appropriate security for due performance of the decree.
G. Analysis and Determination
Whether the application was made without unreasonable delay
40. The impugned judgment was delivered on 29th April 2026. The present application was filed on 4th May 2026, approximately five days later. The application was plainly brought without unreasonable delay. The Applicants have satisfied this limb of Order 42 rule 6(2).
41. Timeliness, however, is only one of the prescribed conditions. Since the requirements are cumulative, prompt filing cannot cure a failure to establish substantial loss or to address security for due performance of the decree.
Whether substantial loss has been demonstrated
42. The 1st Applicant states in the supporting affidavit that execution will “definitely occasion the Appellants irreparable loss and damage” and render their appeal nugatory. Apart from this assertion, however, the affidavit does not identify the nature, extent or probable consequences of the alleged loss.
43. The decree contains several obligations. It permanently restrains the Applicants from entering upon, remaining on or interfering with the property; directs them to remove the structures erected thereon within ninety days; permits eviction in default; and requires payment of Kshs. 500,000 as general damages for trespass, together with costs and interest.
44. Those are undoubtedly significant consequences. Their existence does not, however, automatically establish substantial loss. The Applicants were required to relate the intended execution to their particular circumstances and demonstrate, through evidence, the substantial loss likely to arise.
45. None of the Applicants has stated, for instance, that the suit property constitutes their only residence or place of business. They have not described the structures erected on the land, identified their owners or occupants, explained the purpose for which they are used, stated their approximate value or produced photographs, valuation reports or other evidence concerning them. Indeed, one of the grounds of appeal asserts that the 2nd Applicant does not reside on the property.
46. The Applicants have not demonstrated that the structures are permanent or that their removal would occasion loss incapable of compensation or effective remediation. Neither have they identified any personal, commercial or other use of the property whose interruption would cause substantial loss.
47. They have also not explained why possession could not be restored or appropriate consequential relief granted if the appeal ultimately succeeded. There is no evidence that the Respondent intends to sell, transfer, subdivide, charge or otherwise place the property beyond the reach of the appellate Court.
48. Regarding the monetary component of the decree, the Applicants have not alleged that the Respondent would be incapable of refunding the decretal sum if it were paid and the appeal succeeded. Nor have they explained why payment of Kshs. 500,000, costs and interest would occasion substantial loss to them.
49. The statement that execution will render the appeal nugatory is a conclusion rather than evidence. The Applicants were required to identify the threatened loss and show how execution would create a state of affairs incapable of adequate reversal, restoration or compensation. The Court cannot presume those matters merely because the decree authorizes removal of structures and eviction.
50. The Applicants’ reliance on the arguability and prospects of success of the appeal does not fill this evidentiary gap. Arguability is not a substitute for the express requirement of substantial loss. Moreover, an extensive assessment of the grounds of appeal at this stage would risk prejudging the appeal.
51. The Applicants have therefore failed to discharge the burden of demonstrating that substantial loss may result unless stay is granted.
Whether security for due performance has been furnished or offered
52. The Applicants did not offer any security in their supporting affidavit. After the Respondent expressly raised that omission in his replying affidavit, the Applicants filed a further affidavit. Rather than express willingness to provide security or abide by appropriate terms imposed by the Court, they maintained that security was not mandatory in land disputes.
53. That proposition finds no support in the language of Order 42 rule 6(2)(b). The rule contains no exemption based on the nature of the dispute. Although the form of security may differ according to the decree, the requirement to secure due performance remains applicable.
54. The Applicants appear to conflate security for costs with security for due performance of the decree. The security contemplated under Order 42 rule 6(2)(b) is not limited to appellate costs. It secures performance of the obligations that may ultimately remain binding upon the Applicants if the appeal is unsuccessful.
55. In the present case, the decree contains an ascertainable monetary component of Kshs. 500,000, together with costs and interest, as well as mandatory and prohibitory obligations concerning the suit property. It was therefore incumbent upon the Applicants to address the question of security.
56. The Court accepts that the rule does not invariably require an applicant to deposit security before the application is heard. The nature and quantum of security are ultimately for the Court to determine. Nevertheless, an applicant seeking the Court’s favorable discretion must demonstrate readiness to submit to reasonable terms securing performance of the decree.
57. The Applicants have neither furnished security nor offered to do so. Even after the omission was brought directly to their attention, they maintained that no security was necessary. Their position is therefore not one of inability to determine the proper form or quantum of security. It is a categorical rejection of the requirement itself.
58. The decision in RWW v EKW relied upon by the Applicant does not assist the Applicants in that regard. Although it explains the purpose of stay and the need to preserve an appeal, it does not abolish or dilute the express requirements of Order 42 rule 6(2).
59. The Court cannot treat an express repudiation of a statutory condition as compliance with it. The Applicants have therefore failed to satisfy the requirement relating to security for due performance of the decree.
Overall exercise of discretion
60. The Court appreciates that the right of appeal should not be rendered illusory. Equally, the filing of an appeal does not entitle an unsuccessful party to retain possession of the subject matter and postpone performance of a valid decree without satisfying the conditions laid down by law.
61. The present application was brought promptly. The Applicants have, however, failed on the two substantive requirements that lie at the heart of their application. They have not demonstrated the particular substantial loss likely to result from execution, and they have neither furnished nor offered security for due performance of the decree.
62. The three conditions prescribed by Order 42 rule 6(2) are cumulative and cannot be severed. In Trust Bank Limited v Ajay Shah & 3 Others [2012] KEHC 3092 (KLR ), the Court held that all three conditions must be satisfied before stay can be granted. Compliance with the requirement concerning delay alone cannot, therefore, sustain the application where the Applicants have failed to demonstrate substantial loss and have neither furnished nor offered security for due performance of the decree.
63. The Applicants’ invocation of sections 3 and 3A of the Civil Procedure Act does not alter that conclusion. The Court’s inherent power cannot be invoked to dispense with express requirements of the Civil Procedure Rules or to confer a remedy where the conditions governing that remedy have not been satisfied.
64. In the circumstances, there is no proper evidentiary or legal basis upon which the Court may exercise its discretion in favor of the Applicants.
H. Disposition
i) The Notice of Motion dated 4th May 2026 is devoid of merit and is hereby dismissed.
ii) For avoidance of doubt, the prayer seeking to have the draft memorandum of appeal deemed duly filed is spent, the memorandum having since been filed in this appeal.
iii) The Respondent shall have the costs of the application.
iv) The appeal shall be processed and placed before the Court for directions in accordance with Order 42 of the Civil Procedure Rules.
Orders accordingly.
DATED, SIGNED AND DELIVERED AT GARISSA THIS 29TH DAY OF JULY, 2026.
DR. OMONDI R. OWINO, FCIArb
JUDGE ENVIRONMENT AND LAND COURT
DELIVERED VIRTUALLY ON THE TEAMS PLATFORM
IN THE PRESENCE OF:
Mr Upendo for the Appellants
Mr. Ahmed for the Respondent
Mr Dabar Mohamed (Court Assistant)
1. An appeal opens the door to appellate review; it does not, without more, close the door to execution. A successful litigant remains entitled to the fruits of his judgment unless the party seeking to suspend the decree satisfies the conditions prescribed by law.
2. Before the Court is the Appellants’ Notice of Motion dated 4th May 2026. The application is expressed to be brought under, among other provisions, Order 42 rule 6 and Order 51 rule 1 of the Civil Procedure Rules, sections 3 and 3A of the Civil Procedure Act and section 13(1) of the Environment and Land Court Act.
3. The Applicants principally seek an order staying execution of the judgment delivered on 29th April 2026, together with all consequential orders, pending the hearing and determination of their appeal. They also prayed that their draft memorandum of appeal be deemed duly filed and that the costs of the application abide by the outcome of the appeal.
4. The application is supported by the affidavit of Mohamed Mohamud Farah sworn on 4th May 2026 and a further affidavit filed in response to the Respondent’s opposition. The Respondent opposed it through his replying affidavit sworn on 29th June 2026. The application was canvassed through written submissions.
B. Background
5. The dispute concerns the ownership, possession and use of Plot No. 2524, measuring approximately 1.4167 hectares and situated within Bulla Medina, Garissa Township.
6. In the judgment delivered on 29th April 2026, the trial court found that the Respondent had proved his claim on a balance of probabilities and entered judgment against the Applicants jointly and severally. The court:
a. declared the Respondent the lawful and beneficial owner of Plot No. 2524;
b. permanently restrained the Applicants from entering upon, remaining on or otherwise interfering with the property;
c. directed the Applicants to remove all structures erected on the property within ninety days, failing which eviction would issue;
d. awarded the Respondent Kshs. 500,000 as general damages for trespass;
e. awarded the Respondent costs and interest; and
f. directed the Officer Commanding Station, Garissa Police Station, to supervise compliance.
7. Aggrieved by the judgment, the Applicants lodged the present appeal. Their memorandum of appeal dated 4th May 2026 challenges, among other matters, the Respondent’s root of title, the trial court’s treatment of the evidence from the County Directorate of Lands, Survey and Physical Planning, its consideration of Embu Petition No. 2 of 2011, and its conclusion that the Applicants were trespassers.
C. The Applicants’ Case
8. The Applicants contend that the judgment has placed the parties in a precarious position regarding occupation of the suit property and the possibility of eviction. They maintain that their appeal is arguable and has high prospects of success.
9. The 1st Applicant deposes that the Respondent is in the process of commencing execution and that execution will occasion the Applicants irreparable loss and damage and render the appeal nugatory. He further states that the application was brought without unreasonable delay, the judgment having been delivered on 29th April 2026 and the application filed on 4th May 2026.
10. In their written submissions, the Applicants rely on Order 42 rule 6(2) of the Civil Procedure Rules and the decisions in Antoine Ndiaye v African Virtual University [2015] eKLR and James Wangalwa & Another v Agnes Naliaka Cheseto [2012] eKLR . They submit that substantial loss is the cornerstone of the jurisdiction to grant a stay and that the Court should preserve the subject matter of the appeal.
11. In the further affidavit, the 1st Applicant maintains that the application satisfies Order 42 rule 6. He nevertheless asserts that furnishing security is not mandatory in disputes concerning land.
12. The Applicants also rely on RWW v EKW [2019] eKLR for the proposition that the purpose of stay is to preserve the subject matter of an appeal and safeguard an appellant’s right of appeal.
13. They accordingly pray that execution of the judgment and decree be stayed pending the hearing and determination of the appeal.
D. The Respondent’s Case
14. The Respondent opposed the application through his Replying Affidavit, sworn on 29th June 2026, and written submissions dated 13th July 2026, on the ground that it does not satisfy the conditions prescribed by Order 42 rule 6(2) of the Civil Procedure Rules. He contends that the Applicants have made generalized allegations of irreparable harm without identifying the specific loss they are likely to suffer.
15. The Respondent submits that the Applicants have not particularized or produced evidence of the substantial loss they are likely to suffer if execution proceeds.
16. In support of his position on substantial loss, the Respondent relies on Kenya Shell Limited v Benjamin Karuga Kibiru & Another [1986] KLR 410 and James Wangalwa & Another v Agnes Naliaka Cheseto [2012] eKLR . He submits that substantial loss is the cornerstone of an application for stay and that execution, being a lawful process, does not by itself constitute substantial loss.
17. The Respondent further submits that the Applicants have neither furnished nor offered security for due performance of the decree. Relying on Vishram Ravji Halai v Thornton & Turpin (1963) Ltd [1990] KLR 365 , he argues that the Court’s discretion under Order 42 rule 6 is circumscribed by the requirements of substantial loss, absence of unreasonable delay and provision of security.
18. The Respondent also relies on Arun C Sharma v Ashana Raikundalia t/a Raikundalia & Co. Advocates & 2 Others [2014] eKLR for the proposition that security under Order 42 rule 6 is intended to guarantee due performance of the decree that may ultimately remain binding upon the Applicants. He submits that the assertion that security is unnecessary in land disputes is inconsistent with the express language of Order 42 rule 6(2)(b).
19. According to the Respondent, he has been kept out of the property since 2024, when the Applicants entered upon it and commenced fencing and construction. He argues that granting a stay would prolong his deprivation of the fruits of the judgment.
20. In the alternative, the Respondent submits that any stay granted should be conditional upon the Applicants furnishing security of not less than Kshs. 5,000,000 and preserving the property against further construction, development or alteration.
E. Issue for Determination
21. Having considered the application, the affidavits, the memorandum of appeal and the parties’ written submissions, the sole issue for determination is:
Whether the Applicants have satisfied the requirements for grant of stay of execution pending appeal under Order 42 rule 6 of the Civil Procedure Rules.
F. Applicable Legal Principles
22. The starting point is Order 42 rule 6(1) of the Civil Procedure Rules. It provides that an appeal does not operate as a stay of execution. The institution of an appeal therefore neither suspends the decree nor deprives the successful litigant of the right to enforce it. A party who seeks to interrupt execution must obtain an order of stay upon satisfying the conditions prescribed by law.
23. Those conditions are expressly set out in Order 42 rule 6(2), which provides:
“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.”
24. The language of the rule is prohibitory. The words “no order for stay of execution shall be made unless” limit the Court’s discretion. An applicant must demonstrate substantial loss, approach the Court without unreasonable delay and submit to the provision of security for due performance of the decree.
25. These requirements are cumulative and must be satisfied conjunctively rather than selectively. Compliance with one cannot compensate for failure to satisfy another. In Carter & Sons Ltd v Deposit Protection Fund Board & 2 Others, Civil Appeal No. 291 of 1997 , the Court of Appeal affirmed that the discretion to grant stay must be exercised within the conditions prescribed by the rule and that a decree-holder should not be deprived of the fruits of a decree merely because the judgment-debtor has preferred an appeal. Prompt filing, therefore, cannot cure the absence of evidence of substantial loss or a failure to address security for due performance of the decree.
26. In Butt v Rent Restriction Tribunal [1979] KECA 22 (KLR), [1982] KLR 417 , the Court of Appeal affirmed that the power to grant stay is discretionary and should be exercised in a manner that does not render an appeal ineffectual. That discretion, however, must be exercised within the statutory framework governing the particular application. The general desirability of preserving an appeal does not displace the conditions expressly imposed by Order 42 rule 6.
27. The principal inquiry under Order 42 rule 6(2)(a) is whether the applicant has demonstrated substantial loss. Substantial loss is not established merely by showing that execution is imminent, that possession may change, or that the applicant will experience the ordinary consequences of an adverse judgment. Execution is the lawful process by which a successful litigant obtains the benefit of a decree.
28. In Machira t/a Machira & Co. Advocates v East African Standard (No. 2) [2002] KEHC 1167 (KLR) , the Court emphasized that a litigant seeking stay must place before the Court cogent particulars of the loss apprehended. The Court cannot act merely upon the applicant’s fear of execution while disregarding the decree-holder’s lawful entitlement to the benefit of the judgment.
29. A bare assertion that execution will cause substantial loss or render an appeal nugatory is therefore insufficient. The threatened loss must be identified, explained and supported by material from which the Court can objectively assess its nature and probable effect.
30. The word “substantial” denotes loss that is real, significant and consequential, rather than loss that is merely nominal or an ordinary incident of execution. In Tropical Commodities Suppliers Ltd & Others v International Credit Bank Ltd (in liquidation) [2004] 2 EA 331 , substantial loss was described as loss of real worth or value, as opposed to merely nominal loss.
31. Similarly, in Mukuma v Abuoga [1988] KECA 107 (KLR) , the Court of Appeal identified substantial loss as the cornerstone of the jurisdiction to preserve the subject matter pending appeal. The applicant must consequently demonstrate that execution would materially impair the subject matter or produce consequences that could not adequately be reversed, restored or remedied if the appeal ultimately succeeded.
32. The inquiry must be connected to the particular terms of the decree. Where the decree concerns land, buildings or possession, an applicant should identify the nature of his interest, the use to which the property is put, the persons in occupation, the structures affected and the practical consequences of eviction, demolition or transfer. Where monetary obligations are involved, the applicant must explain why satisfaction of the decree would occasion substantial loss. The Court cannot supply these matters through conjecture where the applicant has placed no supporting material before it.
33. The arguability or perceived strength of the appeal is not one of the express conditions under Order 42 rule 6(2). A memorandum of appeal may demonstrate that an appeal has been instituted, but it does not prove substantial loss. The Court must, moreover, avoid undertaking a premature examination of the merits of the appeal in an application confined to stay of execution.
34. Order 42 rule 6(2)(b) separately requires security for due performance of such decree or order as may ultimately remain binding upon the applicant. This is distinct from security for costs. Its purpose is to protect the decree-holder against the risk that, after execution has been postponed throughout the appellate process, the decree may remain unperformed if the appeal fails.
35. The nature and amount of security are matters for the Court to determine according to the character of the decree and the circumstances of the case. An applicant need not invariably deposit a predetermined sum before the application is heard. The Court may direct the appropriate form, amount and time within which security is to be furnished.
36. That power does not render the requirement optional. Although the Court determines the nature and quantum of security, the applicant must engage with the requirement by offering security or expressing an unequivocal readiness to comply with reasonable terms imposed by the Court. In Focin Motorcycle Co. Limited v Ann Wambui Wangui & Another [2018] eKLR , the Court emphasized that an applicant’s offer to furnish security is a mark of good faith and demonstrates willingness to satisfy the decree should the appeal fail.
37. A party who categorically maintains that security is unnecessary does not merely omit to propose its form or amount; he repudiates a condition expressly imposed by Order 42 rule 6(2)(b).
38. The rule contains no exemption for decrees concerning land. The nature of the subject matter may affect the form and quantum of security, but it does not extinguish the requirement. Where a decree contains both monetary and non-monetary obligations, the Court may fashion suitable terms addressing the particular obligations that may ultimately remain binding upon the applicant.
39. The right of appeal and the decree-holder’s right to enjoy the fruits of judgment must both be respected. That balance is achieved through faithful application of Order 42 rule 6(2), not by relaxing its requirements. Stay is therefore not available merely because an appeal has been filed or because execution will make the appeal more consequential. It is available only where the applicant demonstrates substantial loss, acts without unreasonable delay and submits to appropriate security for due performance of the decree.
G. Analysis and Determination
Whether the application was made without unreasonable delay
40. The impugned judgment was delivered on 29th April 2026. The present application was filed on 4th May 2026, approximately five days later. The application was plainly brought without unreasonable delay. The Applicants have satisfied this limb of Order 42 rule 6(2).
41. Timeliness, however, is only one of the prescribed conditions. Since the requirements are cumulative, prompt filing cannot cure a failure to establish substantial loss or to address security for due performance of the decree.
Whether substantial loss has been demonstrated
42. The 1st Applicant states in the supporting affidavit that execution will “definitely occasion the Appellants irreparable loss and damage” and render their appeal nugatory. Apart from this assertion, however, the affidavit does not identify the nature, extent or probable consequences of the alleged loss.
43. The decree contains several obligations. It permanently restrains the Applicants from entering upon, remaining on or interfering with the property; directs them to remove the structures erected thereon within ninety days; permits eviction in default; and requires payment of Kshs. 500,000 as general damages for trespass, together with costs and interest.
44. Those are undoubtedly significant consequences. Their existence does not, however, automatically establish substantial loss. The Applicants were required to relate the intended execution to their particular circumstances and demonstrate, through evidence, the substantial loss likely to arise.
45. None of the Applicants has stated, for instance, that the suit property constitutes their only residence or place of business. They have not described the structures erected on the land, identified their owners or occupants, explained the purpose for which they are used, stated their approximate value or produced photographs, valuation reports or other evidence concerning them. Indeed, one of the grounds of appeal asserts that the 2nd Applicant does not reside on the property.
46. The Applicants have not demonstrated that the structures are permanent or that their removal would occasion loss incapable of compensation or effective remediation. Neither have they identified any personal, commercial or other use of the property whose interruption would cause substantial loss.
47. They have also not explained why possession could not be restored or appropriate consequential relief granted if the appeal ultimately succeeded. There is no evidence that the Respondent intends to sell, transfer, subdivide, charge or otherwise place the property beyond the reach of the appellate Court.
48. Regarding the monetary component of the decree, the Applicants have not alleged that the Respondent would be incapable of refunding the decretal sum if it were paid and the appeal succeeded. Nor have they explained why payment of Kshs. 500,000, costs and interest would occasion substantial loss to them.
49. The statement that execution will render the appeal nugatory is a conclusion rather than evidence. The Applicants were required to identify the threatened loss and show how execution would create a state of affairs incapable of adequate reversal, restoration or compensation. The Court cannot presume those matters merely because the decree authorizes removal of structures and eviction.
50. The Applicants’ reliance on the arguability and prospects of success of the appeal does not fill this evidentiary gap. Arguability is not a substitute for the express requirement of substantial loss. Moreover, an extensive assessment of the grounds of appeal at this stage would risk prejudging the appeal.
51. The Applicants have therefore failed to discharge the burden of demonstrating that substantial loss may result unless stay is granted.
Whether security for due performance has been furnished or offered
52. The Applicants did not offer any security in their supporting affidavit. After the Respondent expressly raised that omission in his replying affidavit, the Applicants filed a further affidavit. Rather than express willingness to provide security or abide by appropriate terms imposed by the Court, they maintained that security was not mandatory in land disputes.
53. That proposition finds no support in the language of Order 42 rule 6(2)(b). The rule contains no exemption based on the nature of the dispute. Although the form of security may differ according to the decree, the requirement to secure due performance remains applicable.
54. The Applicants appear to conflate security for costs with security for due performance of the decree. The security contemplated under Order 42 rule 6(2)(b) is not limited to appellate costs. It secures performance of the obligations that may ultimately remain binding upon the Applicants if the appeal is unsuccessful.
55. In the present case, the decree contains an ascertainable monetary component of Kshs. 500,000, together with costs and interest, as well as mandatory and prohibitory obligations concerning the suit property. It was therefore incumbent upon the Applicants to address the question of security.
56. The Court accepts that the rule does not invariably require an applicant to deposit security before the application is heard. The nature and quantum of security are ultimately for the Court to determine. Nevertheless, an applicant seeking the Court’s favorable discretion must demonstrate readiness to submit to reasonable terms securing performance of the decree.
57. The Applicants have neither furnished security nor offered to do so. Even after the omission was brought directly to their attention, they maintained that no security was necessary. Their position is therefore not one of inability to determine the proper form or quantum of security. It is a categorical rejection of the requirement itself.
58. The decision in RWW v EKW relied upon by the Applicant does not assist the Applicants in that regard. Although it explains the purpose of stay and the need to preserve an appeal, it does not abolish or dilute the express requirements of Order 42 rule 6(2).
59. The Court cannot treat an express repudiation of a statutory condition as compliance with it. The Applicants have therefore failed to satisfy the requirement relating to security for due performance of the decree.
Overall exercise of discretion
60. The Court appreciates that the right of appeal should not be rendered illusory. Equally, the filing of an appeal does not entitle an unsuccessful party to retain possession of the subject matter and postpone performance of a valid decree without satisfying the conditions laid down by law.
61. The present application was brought promptly. The Applicants have, however, failed on the two substantive requirements that lie at the heart of their application. They have not demonstrated the particular substantial loss likely to result from execution, and they have neither furnished nor offered security for due performance of the decree.
62. The three conditions prescribed by Order 42 rule 6(2) are cumulative and cannot be severed. In Trust Bank Limited v Ajay Shah & 3 Others [2012] KEHC 3092 (KLR ), the Court held that all three conditions must be satisfied before stay can be granted. Compliance with the requirement concerning delay alone cannot, therefore, sustain the application where the Applicants have failed to demonstrate substantial loss and have neither furnished nor offered security for due performance of the decree.
63. The Applicants’ invocation of sections 3 and 3A of the Civil Procedure Act does not alter that conclusion. The Court’s inherent power cannot be invoked to dispense with express requirements of the Civil Procedure Rules or to confer a remedy where the conditions governing that remedy have not been satisfied.
64. In the circumstances, there is no proper evidentiary or legal basis upon which the Court may exercise its discretion in favor of the Applicants.
H. Disposition
i) The Notice of Motion dated 4th May 2026 is devoid of merit and is hereby dismissed.
ii) For avoidance of doubt, the prayer seeking to have the draft memorandum of appeal deemed duly filed is spent, the memorandum having since been filed in this appeal.
iii) The Respondent shall have the costs of the application.
iv) The appeal shall be processed and placed before the Court for directions in accordance with Order 42 of the Civil Procedure Rules.
Orders accordingly.
DATED, SIGNED AND DELIVERED AT GARISSA THIS 29TH DAY OF JULY, 2026.
DR. OMONDI R. OWINO, FCIArb
JUDGE ENVIRONMENT AND LAND COURT
DELIVERED VIRTUALLY ON THE TEAMS PLATFORM
IN THE PRESENCE OF:
Mr Upendo for the Appellants
Mr. Ahmed for the Respondent
Mr Dabar Mohamed (Court Assistant)