Introduction
1. Before this Honourable Court is the Applicants’ Application dated 14.07.2026 (“the Application”) brought Pursuant to Sections 1A, 1B, 3A, 79G and 95 of the Civil Procedure Act, Cap. 21 Laws of Kenya Order 42 Rule 6, Order 50 Rule 6 of the Civil Procedure Rules 2010) , seeking orders That:-
“1. Spent.
2. This Honourable Court be pleased to grant the Applicant leave to file an Appeal against the Judgment/Decree delivered on the 14th day of May, 2026 out of time.
3.That this Honourable Court be pleased to stay the Judgement and its consequential orders delivered by Hon. E.M Kadima in Taveta ELC Case No. E022 of 2024 pending hearing and determination of this Application.
4. That this Honourable Court be pleased to stay the Judgement and its consequential orders delivered by Hon. E.M Kadima in Taveta ELC Case No. E022 of 2024 pending hearing and determination of this intended Appeal.
5. That this Appeal be allowed and Judgement of the Trial Court be set aside.
6. That the Memorandum of Appeal annexed to this application be deemed as duly filed upon payment of the requisite court fees.
7. The costs of this application be in the intended appeal.”
2.The Application is supported by the affidavit of the applicant dated 14.7.2026 sworn on the 14.7.2026 and grounds on the face of the application of even date, a draft memorandum of appeal, certificate of delay and correspondences requesting for typed proceedings from Taveta Magistrates court.
3.The Applicant averred that judgement was entered against him on the 14.5. 2026.The applicant timeously applied for the certified copy of proceedings and judgement 16.5.2026 which were later supplied to him. Consequently on 25.6.2026 following expiry of the statutory period to file an appeal the applicant was issued with a certificate of delay. He annexed letters of correspondence to the court administrator Taveta law Courts .he contended that the delay in getting the typed proceedings ,judgement was occasioned by the administrative operational challenges at Taveta magistrate court .He urged that the documents applied for were crucial in facilitating the filing of the intended appeal which he obtained after expiry of the statutory period prescribed for filing the appeal. The applicant argued that he has demonstrated an arguable appeal with reasonable chance of success as per the annexed draft memorandum of appeal and urged that no prejudice shall be suffered by the respondent if time for filing the appeal is extended. The Applicant averred that if execution of decree proceeds, he will suffer irreversible substantial loss thereby rendering the intended appeal nugatory.
4.The Respondent opposed the motion vide Grounds of Opposition dated July 21, 2026 contending that there is inordinate and unexplained delay in filing the appeal or notice of appeal the application lacks sufficient or good cause as per section 16A of the environment and land court act ,the draft annexed memorandum of appeal Lacks merit and has no probability of success ,the respondent would suffer prejudice by allowing the application ,application is an abuse of the due process of the court ,procedurally defective, irregularly filed or relies on wrong provisions of the law and no irreparable or substantial loss likely to be suffered by Applicant has not been demonstrated by the applicant. The respondent averred that the applicant has failed to commit to provide security for due performance of the decree pending filing, hearing and determination of the intended appeal. The respondent urged the court to dismiss the application with costs.
Directions of the Court:
5.By consent of the parties , the court directed the application to be canvassed by way of written submissions. The Parties complied via their respective written submissions dated 3rd August, 2026.
6.The Court having considered the application, affidavit, grounds of opposition and written submissions on record identifies issues for determination as follows:
1. Whether the Applicant has satisfied the grounds for enlargement of time to lodge an appeal out of time.
2. Whether the Applicant has satisfied the criteria for grant of stay of execution pending hearing and determination of an intended appeal
3. Who should bear the costs of the Application?
7.T he principles for considering an extension of time to appeal out of time are settled in the case of Nicholas korir salat Salla vs independent electoral boundaries commission & 7 others (2014) ksc as follows:
a) Extension of time is not a right, it is an equitable remedy available at the discretion of the court.
b) The party seeking extension must lay a basis to the satisfaction of the court
c) The delay is must be reasonably explained to the satisfaction of the court
d) Whether the intended appeal is arguable and not frivolous
e) Whether the respondent will suffer prejudice if the extension is granted.
8.In the case of Board of Trustees of African Independent Pentecostal Church of Africa Church v Peter Mungai Kimani & 12 others [2016] KEHC 5920 (KLR) the court stated:-
I. “ 58. From the above provisions of the law, it is trite that the power to enlarge or extend time for doing any act which time is fixed by the court can be exercised by the court in its discretion, even if that time has lapsed. The provisions of the law as cited above recognize that first, there must have been original time fixed and which time has either expired or is about to expire. Being a matter of discretion for the court, in granting such enlargement of time, the court will consider the circumstances of each case, which vary from case to case. Some factors to be considered include: . Whether there has been indolence or unexplained delay on the part of the applicant.
II. Whether the applicant is guilty of abuse of the court process.
III. Whether the enlargement will prejudice the defendant.
IV. Whether the denial of enlargement period will occasion prejudice to the applicant given the circumstances of the case.
V. Whether the enlargement is necessary for the effectual complete adjudication of the issues in controversy.
Whether it is just and fair to enlarge time in the circumstances of the case.
59. It therefore follows that once the court is persuaded that it is in the interest of justice to enlarge time, it will exercise its unfettered discretion in favour of the applicant and impose terms and conditions if any on which it will allow the enlargement, besides an award of costs to the respondent as espoused in the proviso to Order 50 Rule 6 of the Civil Procedure Rules, to ensure that the respondent is not unfairly prejudiced by such enlargement.”
9. As to explanation of the delay by applicant to the satisfaction of the court, section 79G of the civil procedure Act ,2010 provides for the period to lodge an appeal as from the subordinate court as follows :
Every appeal from a subordinate court to the High Court shall be filed within a period of thirty days from the date of the decree or order appealed against, excluding from such period any time which the lower court may certify as having been requisite for the preparation and delivery to the appellant of a copy of the decree or order:
Provided that an appeal may be admitted out of time if the appellant satisfies the court that he had good and sufficient cause for not filing the appeal in time.”
10 .Section 95 of the Civil Procedure Act ,2010 provides for enlargement of time as follows:
Where any period is fixed or granted by the court for the doing of any act prescribed or allowed by this Act, the court may, in its discretion, from time to time, enlarge such period, even though the period originally fixed or granted may have expired.”
11. Order 50 Rule 6 of the Civil Procedure Rules provides for the power to enlarge time as follows:-
Where a limited time has been fixed for doing any act or taking any proceedings under these Rules, or by summary notice or by order of the court, the court shall have power to enlarge such time upon such terms (if any) as the justice of the case may require, and such enlargement may be ordered although the application for the same is not made until after the expiration of the time appointed or allowed:
Provided that the costs of any application to extend such time and of any order made thereon shall be borne by the parties making such application, unless the court orders otherwise.”
12.The cited provisions of law emphasize that enlargement of time to perform an act is a discretionary power of the court which must be exercised judiciously. To succeed the Applicant must demonstrate that the time prescribed for compliance has expired, delay for compliance was reasonably explained, plausible and no prejudice shall be occasioned to the Respondent should the application be allowed.
13.The impugned Judgement was delivered on 14.05.2026. The Applicant annexed a letter addressed to the court administrator, Taveta law courts requesting for certified copies of typed proceedings as annexure dated 30.5.2026. The certified copy of the proceedings, judgement was supplied to the applicant so to certificate of delay marked kk5 .The applicant tried his best to obtain proceedings and copy of judgment on time for purposes of filing the appeal save for challenges of typing of proceedings faced by the registry at Taveta law courts.in the circumstances I find the explanation by applicant reasonable having been guided by the case of Githere vs Kimani 1984 1klr where it was stated that where a party has done everything required of them to obtain proceedings any delay on the part of the court machinery constitutes a sufficient cause
14.whether the Applicant has satisfied the criteria for granting of stay of execution pending hearing and determination of an intended appeal, the principles guiding a stay of execution pending the determination of an appeal are anchored in Order 42 Rule 6 of the Civil Procedure Rules, 2010 which provides as follows-
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—
1. 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
2. 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.
3. Notwithstanding anything contained in subrule (2), the court shall have power, without formal application made, to order upon such terms as it may deem fit a stay of execution pending the hearing of a formal application.
4. For the purposes of this rule an appeal to the Court of Appeal shall be deemed to have been filed when under the Rules of that Court notice of appeal has been given.
5. An application for stay of execution may be made informally immediately following the delivery of judgment or ruling.
6.. Notwithstanding anything contained in subrule (1) of this rule the High Court shall have power in the exercise of its appellate jurisdiction to grant a temporary injunction on such terms as it thinks just provided the procedure for instituting an appeal from a subordinate court or tribunal has been complied with.”
15.The court in RWW v EKW [2019] KEHC 6523 (KLR) stipulated that:-
“8. The purpose of an application for stay of execution pending an appeal is to preserve the subject matter in dispute so that the rights of the appellant who is exercising the undoubted right of appeal are safeguarded and the appeal, if successful, is not rendered nugatory. However, in doing so, the court should weigh this right against the success of a litigant who should not be deprived of the fruits of his/her judgment. The court is also called upon to ensure that no party suffers prejudice that cannot be compensated by an award of costs.
9. Indeed, to grant or refuse an application for stay of execution pending appeal is discretionary. The Court when granting the stay however, must balance the interests of the Appellant with those of the Respondent.”
16.The guiding principles for granting stay of execution pending hearing of appeal or intended appeal are filing the application without inordinate delay , provision of security for due performance of the decree and substantive loss likely to be suffered by the applicant should stay of execution order not be granted.
17.The court in Machira t/a Machira & Co Advocates v East African Standard [2002] KEHC 1167 (KLR) in which it was held as follows: -
“In attempting to convince a court that substantial loss is likely to be suffered so that whatever he intends to achieve by his intended recourse to some other authority will be nugatory if ultimately, he prevails, the applicant is under a duty to do more than merely repeating to the court words of the relevant statutory rule or general words used in some judgment or ruling of a court in a decided case cited as a judicial precedent to guide. It is not enough merely to state that substantial loss will result, or that the appeal if successful will be rendered nugatory. That will not do.
If the applicant cites, as a ground, substantial loss, the kind of loss likely to be sustained must be specified, details or particulars thereof must be given, and the conscience of the court, looking at what will happen unless a suspension or stay is ordered, must be satisfied that such loss will really ensue and that if it comes to pass, the applicant is likely to suffer substantial injury by letting the other party proceed further with what may still be remaining to be done or in execution of an awarded decree or order, before disposal of the applicant’s business (eg appeal or intended appeal).
Sometimes litigants seek to go to a higher court or to ask for review, and simultaneously ask for further steps or execution to be stopped while they go forth, for reasons of expressing their unhappiness with what has been decided. Where no pecuniary or tangible loss is shown to the satisfaction of the court, the court will not grant a stay merely on the ground of annoyance to feelings. Indeed, remote contingencies would not warrant the court’s interference with the ordinary course of justice and the process of law.
Moreover, a court will not order a stay upon a mere vague speculation; there must be the clearest ground of necessity disclosed on evidence. Commonly, the applicant may obtain a stay of further proceedings or execution, if he shows facts which point to a conclusion that to allow execution or further proceedings to go ahead before appeal concluded would let an impecunious party to pocket and squander or pilfer what may be needed in restitution if the appeal succeeds and is allowed. Another common factor in favour of the applicant is whether to proceed further or to execute may destroy the subject matter of the action and deprive the appellant or intended appellant of the means of prosecuting the appeal or intended appeal. So, really, stay is normally not to be granted, save in exceptional circumstances.”
18.In James Wangalwa & Another v. Agnes Naliaka Cheseto [2012] KEHC 1094 (KLR) where the court held:-
“11. 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. Even when execution has been levied and completed, that is to say, the attached properties have been sold, as is the case here, does not in itself amount to substantial loss under Order 42 Rule 6 of the CPR. This is so because execution is a lawful process.
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 the successful party in the appeal. This is what substantial loss would entail, a question that was aptly discussed in the case of Silverstein N. Chesoni [2002] 1KLR 867, and also in the case of Mukuma V Abuoga quoted above. The last case, referring to the exercise of discretion by the High Court and the Court of Appeal in the granting stay of execution, under Order 42 of the CPR and Rule 5(2) (b) of the Court of Appeal Rules, respectively, emphasized the centrality of substantial loss thus: “…the issue of substantial loss is the cornerstone of both jurisdictions. Substantial loss is what has to be prevented by preserving the status quo because such loss would render the appeal nugatory.”
With this observation, of course, a frivolous appeal cannot in practical terms be rendered nugatory. The only admonition, however, is that the High Court should not base the exercise of its discretion under order 42 Rule 6of the CPR only on the chances of the success of the appeal. Much more is needed in accordance with the test I have set out above.”
19.The Applicant submits that the intended Appeal raises arguable grounds of law and fact. The Applicant contends that the trial court erred in law and fact by failing to properly evaluate and weigh the evidence on record, disregarding material evidence adduced by the Applicant, and consequently arriving at the erroneous conclusion that the Respondent was the lawful proprietor of parcel known as TAITA TAVETA/KITOBO “B”/45. He urged that the learned Trial Court failed to consider the Appellant’s contention that the suit property was never sold, transferred or otherwise conveyed to the Respondent thereby raising the substantive question for determination on appeal hence demonstrates arguebility of the Appeal .Should execution of the decree proceed pending the haring and determination of the intended appeal ,the applicant shall suffer loss that cannot be compensated with damages hence the irreparable loss likely to be suffered by applicant .the applicant has established the substantial loss to be suffered.
20/The applicant contended that the intended appeal shall be rendered nugatory should the application not be allowed. Court of Appeal in Stanley Kangethe Kinyanjui v. Tony Ketter & 5 others [2013] KECA 378 (KLR) stipulated as follows: -
“iv) In considering whether an appeal will be rendered nugatory the court must bear in mind that each case must depend on its own facts and peculiar circumstances. David Morton Silverstein v Atsango Chesoni, Civil Application No. Nai 189 of 2001.
v) An applicant must satisfy the court on both of the twin principles.
vi) On whether the appeal is arguable, it is sufficient if a single Bonafide arguable ground of appeal is raised. Damji Pragji Mandavia v Sara Lee Household & Body Care (K) Ltd, Civil Application No. Nai 345 of 2004.
vii) An arguable appeal is not one which must necessarily succeed, but one which ought to be argued fully before the court; one which is not frivolous. Joseph Gitahi Gachau & Another v. Pioneer Holdings (A) Ltd. & 2 others, Civil Application No. 124 of 2008.
viii) In considering an application brought under Rule 5 (2) (b) the court must not make definitive or final findings of either fact or law at that stage as doing so may embarrass the ultimate hearing of the main appeal. Damji Pragji (supra).
ix) The term “nugatory” has to be given its full meaning. It does not only mean worthless, futile or invalid. It also means trifling. Reliance Bank Ltd v Norlake Investments Ltd [2002] 1 EA 227 at page 232.
x) Whether or not an appeal will be rendered nugatory depends on whether or not what is sought to be stayed if allowed to happen is reversible; or if it is not reversible whether damages will reasonably compensate the party aggrieved.
xi) Where it is alleged by the applicant that an appeal will be rendered nugatory on account of the respondent's alleged impecunity, the onus shifts to the latter to rebut by evidence the claim. International Laboratory for Research on Animal Diseases v Kinyua, [1990] KLR 403.”
21.The Applicant bears the burden of demonstrating that the appeal shall be rendered nugatory should the orders sought not be granted. The issue in dispute is change of ownership of land parcel TAITA/ TAVETA/KITOBO “B”/45from the Applicant to the respondent which if not stayed will prejudice the interest of Applicant in the suit property hence the prejudice likely to be suffered. The applicant has shown good faith to furnish security for due performance of the decree to safeguard the competing interest of the parties to the suit property pending hearing and determination of the intended appeal on such terms to be provided by the court.
22.The intended appeal is pending filing, hearing and determination. The court therefore orders that the costs of the application shall abide by the outcome of the appeal.
23.The Final disposition of the court on the application is that the Court allows the application as follows:-
1. Leave is granted to the applicant to file and serve the memorandum of appeal out of time upon the respondent within 14 days from the date of the ruling.
2. Stay of execution pending the filing, hearing and determination of appeal is granted subject to applicant depositing Kshs 100,000.00 as security to be deposited in court within 21 days from the date of the ruling.
3. In default leave granted shall automatically lapse and deemed vacated without further orders from the court.
4. Costs of the application to abide by the outcome of the intended appeal.
It is ordered accordingly.
DATED, SIGNED AND DELIVERED ON THIS 21 st DAY OF SEPTEMBER 2026, AT VOI IN PRESENCE OF:
APPLICANT IN PERSON(ONLINE)
MR ANGIMA FOR THE RESPONDENT.
LETISIA -COURT ASSISTANT
BY J.A. ORWA(JUDGE)
21.9.2026.
1. Before this Honourable Court is the Applicants’ Application dated 14.07.2026 (“the Application”) brought Pursuant to Sections 1A, 1B, 3A, 79G and 95 of the Civil Procedure Act, Cap. 21 Laws of Kenya Order 42 Rule 6, Order 50 Rule 6 of the Civil Procedure Rules 2010) , seeking orders That:-
“1. Spent.
2. This Honourable Court be pleased to grant the Applicant leave to file an Appeal against the Judgment/Decree delivered on the 14th day of May, 2026 out of time.
3.That this Honourable Court be pleased to stay the Judgement and its consequential orders delivered by Hon. E.M Kadima in Taveta ELC Case No. E022 of 2024 pending hearing and determination of this Application.
4. That this Honourable Court be pleased to stay the Judgement and its consequential orders delivered by Hon. E.M Kadima in Taveta ELC Case No. E022 of 2024 pending hearing and determination of this intended Appeal.
5. That this Appeal be allowed and Judgement of the Trial Court be set aside.
6. That the Memorandum of Appeal annexed to this application be deemed as duly filed upon payment of the requisite court fees.
7. The costs of this application be in the intended appeal.”
2.The Application is supported by the affidavit of the applicant dated 14.7.2026 sworn on the 14.7.2026 and grounds on the face of the application of even date, a draft memorandum of appeal, certificate of delay and correspondences requesting for typed proceedings from Taveta Magistrates court.
3.The Applicant averred that judgement was entered against him on the 14.5. 2026.The applicant timeously applied for the certified copy of proceedings and judgement 16.5.2026 which were later supplied to him. Consequently on 25.6.2026 following expiry of the statutory period to file an appeal the applicant was issued with a certificate of delay. He annexed letters of correspondence to the court administrator Taveta law Courts .he contended that the delay in getting the typed proceedings ,judgement was occasioned by the administrative operational challenges at Taveta magistrate court .He urged that the documents applied for were crucial in facilitating the filing of the intended appeal which he obtained after expiry of the statutory period prescribed for filing the appeal. The applicant argued that he has demonstrated an arguable appeal with reasonable chance of success as per the annexed draft memorandum of appeal and urged that no prejudice shall be suffered by the respondent if time for filing the appeal is extended. The Applicant averred that if execution of decree proceeds, he will suffer irreversible substantial loss thereby rendering the intended appeal nugatory.
4.The Respondent opposed the motion vide Grounds of Opposition dated July 21, 2026 contending that there is inordinate and unexplained delay in filing the appeal or notice of appeal the application lacks sufficient or good cause as per section 16A of the environment and land court act ,the draft annexed memorandum of appeal Lacks merit and has no probability of success ,the respondent would suffer prejudice by allowing the application ,application is an abuse of the due process of the court ,procedurally defective, irregularly filed or relies on wrong provisions of the law and no irreparable or substantial loss likely to be suffered by Applicant has not been demonstrated by the applicant. The respondent averred that the applicant has failed to commit to provide security for due performance of the decree pending filing, hearing and determination of the intended appeal. The respondent urged the court to dismiss the application with costs.
Directions of the Court:
5.By consent of the parties , the court directed the application to be canvassed by way of written submissions. The Parties complied via their respective written submissions dated 3rd August, 2026.
6.The Court having considered the application, affidavit, grounds of opposition and written submissions on record identifies issues for determination as follows:
1. Whether the Applicant has satisfied the grounds for enlargement of time to lodge an appeal out of time.
2. Whether the Applicant has satisfied the criteria for grant of stay of execution pending hearing and determination of an intended appeal
3. Who should bear the costs of the Application?
7.T he principles for considering an extension of time to appeal out of time are settled in the case of Nicholas korir salat Salla vs independent electoral boundaries commission & 7 others (2014) ksc as follows:
a) Extension of time is not a right, it is an equitable remedy available at the discretion of the court.
b) The party seeking extension must lay a basis to the satisfaction of the court
c) The delay is must be reasonably explained to the satisfaction of the court
d) Whether the intended appeal is arguable and not frivolous
e) Whether the respondent will suffer prejudice if the extension is granted.
8.In the case of Board of Trustees of African Independent Pentecostal Church of Africa Church v Peter Mungai Kimani & 12 others [2016] KEHC 5920 (KLR) the court stated:-
I. “ 58. From the above provisions of the law, it is trite that the power to enlarge or extend time for doing any act which time is fixed by the court can be exercised by the court in its discretion, even if that time has lapsed. The provisions of the law as cited above recognize that first, there must have been original time fixed and which time has either expired or is about to expire. Being a matter of discretion for the court, in granting such enlargement of time, the court will consider the circumstances of each case, which vary from case to case. Some factors to be considered include: . Whether there has been indolence or unexplained delay on the part of the applicant.
II. Whether the applicant is guilty of abuse of the court process.
III. Whether the enlargement will prejudice the defendant.
IV. Whether the denial of enlargement period will occasion prejudice to the applicant given the circumstances of the case.
V. Whether the enlargement is necessary for the effectual complete adjudication of the issues in controversy.
Whether it is just and fair to enlarge time in the circumstances of the case.
59. It therefore follows that once the court is persuaded that it is in the interest of justice to enlarge time, it will exercise its unfettered discretion in favour of the applicant and impose terms and conditions if any on which it will allow the enlargement, besides an award of costs to the respondent as espoused in the proviso to Order 50 Rule 6 of the Civil Procedure Rules, to ensure that the respondent is not unfairly prejudiced by such enlargement.”
9. As to explanation of the delay by applicant to the satisfaction of the court, section 79G of the civil procedure Act ,2010 provides for the period to lodge an appeal as from the subordinate court as follows :
Every appeal from a subordinate court to the High Court shall be filed within a period of thirty days from the date of the decree or order appealed against, excluding from such period any time which the lower court may certify as having been requisite for the preparation and delivery to the appellant of a copy of the decree or order:
Provided that an appeal may be admitted out of time if the appellant satisfies the court that he had good and sufficient cause for not filing the appeal in time.”
10 .Section 95 of the Civil Procedure Act ,2010 provides for enlargement of time as follows:
Where any period is fixed or granted by the court for the doing of any act prescribed or allowed by this Act, the court may, in its discretion, from time to time, enlarge such period, even though the period originally fixed or granted may have expired.”
11. Order 50 Rule 6 of the Civil Procedure Rules provides for the power to enlarge time as follows:-
Where a limited time has been fixed for doing any act or taking any proceedings under these Rules, or by summary notice or by order of the court, the court shall have power to enlarge such time upon such terms (if any) as the justice of the case may require, and such enlargement may be ordered although the application for the same is not made until after the expiration of the time appointed or allowed:
Provided that the costs of any application to extend such time and of any order made thereon shall be borne by the parties making such application, unless the court orders otherwise.”
12.The cited provisions of law emphasize that enlargement of time to perform an act is a discretionary power of the court which must be exercised judiciously. To succeed the Applicant must demonstrate that the time prescribed for compliance has expired, delay for compliance was reasonably explained, plausible and no prejudice shall be occasioned to the Respondent should the application be allowed.
13.The impugned Judgement was delivered on 14.05.2026. The Applicant annexed a letter addressed to the court administrator, Taveta law courts requesting for certified copies of typed proceedings as annexure dated 30.5.2026. The certified copy of the proceedings, judgement was supplied to the applicant so to certificate of delay marked kk5 .The applicant tried his best to obtain proceedings and copy of judgment on time for purposes of filing the appeal save for challenges of typing of proceedings faced by the registry at Taveta law courts.in the circumstances I find the explanation by applicant reasonable having been guided by the case of Githere vs Kimani 1984 1klr where it was stated that where a party has done everything required of them to obtain proceedings any delay on the part of the court machinery constitutes a sufficient cause
14.whether the Applicant has satisfied the criteria for granting of stay of execution pending hearing and determination of an intended appeal, the principles guiding a stay of execution pending the determination of an appeal are anchored in Order 42 Rule 6 of the Civil Procedure Rules, 2010 which provides as follows-
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—
1. 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
2. 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.
3. Notwithstanding anything contained in subrule (2), the court shall have power, without formal application made, to order upon such terms as it may deem fit a stay of execution pending the hearing of a formal application.
4. For the purposes of this rule an appeal to the Court of Appeal shall be deemed to have been filed when under the Rules of that Court notice of appeal has been given.
5. An application for stay of execution may be made informally immediately following the delivery of judgment or ruling.
6.. Notwithstanding anything contained in subrule (1) of this rule the High Court shall have power in the exercise of its appellate jurisdiction to grant a temporary injunction on such terms as it thinks just provided the procedure for instituting an appeal from a subordinate court or tribunal has been complied with.”
15.The court in RWW v EKW [2019] KEHC 6523 (KLR) stipulated that:-
“8. The purpose of an application for stay of execution pending an appeal is to preserve the subject matter in dispute so that the rights of the appellant who is exercising the undoubted right of appeal are safeguarded and the appeal, if successful, is not rendered nugatory. However, in doing so, the court should weigh this right against the success of a litigant who should not be deprived of the fruits of his/her judgment. The court is also called upon to ensure that no party suffers prejudice that cannot be compensated by an award of costs.
9. Indeed, to grant or refuse an application for stay of execution pending appeal is discretionary. The Court when granting the stay however, must balance the interests of the Appellant with those of the Respondent.”
16.The guiding principles for granting stay of execution pending hearing of appeal or intended appeal are filing the application without inordinate delay , provision of security for due performance of the decree and substantive loss likely to be suffered by the applicant should stay of execution order not be granted.
17.The court in Machira t/a Machira & Co Advocates v East African Standard [2002] KEHC 1167 (KLR) in which it was held as follows: -
“In attempting to convince a court that substantial loss is likely to be suffered so that whatever he intends to achieve by his intended recourse to some other authority will be nugatory if ultimately, he prevails, the applicant is under a duty to do more than merely repeating to the court words of the relevant statutory rule or general words used in some judgment or ruling of a court in a decided case cited as a judicial precedent to guide. It is not enough merely to state that substantial loss will result, or that the appeal if successful will be rendered nugatory. That will not do.
If the applicant cites, as a ground, substantial loss, the kind of loss likely to be sustained must be specified, details or particulars thereof must be given, and the conscience of the court, looking at what will happen unless a suspension or stay is ordered, must be satisfied that such loss will really ensue and that if it comes to pass, the applicant is likely to suffer substantial injury by letting the other party proceed further with what may still be remaining to be done or in execution of an awarded decree or order, before disposal of the applicant’s business (eg appeal or intended appeal).
Sometimes litigants seek to go to a higher court or to ask for review, and simultaneously ask for further steps or execution to be stopped while they go forth, for reasons of expressing their unhappiness with what has been decided. Where no pecuniary or tangible loss is shown to the satisfaction of the court, the court will not grant a stay merely on the ground of annoyance to feelings. Indeed, remote contingencies would not warrant the court’s interference with the ordinary course of justice and the process of law.
Moreover, a court will not order a stay upon a mere vague speculation; there must be the clearest ground of necessity disclosed on evidence. Commonly, the applicant may obtain a stay of further proceedings or execution, if he shows facts which point to a conclusion that to allow execution or further proceedings to go ahead before appeal concluded would let an impecunious party to pocket and squander or pilfer what may be needed in restitution if the appeal succeeds and is allowed. Another common factor in favour of the applicant is whether to proceed further or to execute may destroy the subject matter of the action and deprive the appellant or intended appellant of the means of prosecuting the appeal or intended appeal. So, really, stay is normally not to be granted, save in exceptional circumstances.”
18.In James Wangalwa & Another v. Agnes Naliaka Cheseto [2012] KEHC 1094 (KLR) where the court held:-
“11. 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. Even when execution has been levied and completed, that is to say, the attached properties have been sold, as is the case here, does not in itself amount to substantial loss under Order 42 Rule 6 of the CPR. This is so because execution is a lawful process.
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 the successful party in the appeal. This is what substantial loss would entail, a question that was aptly discussed in the case of Silverstein N. Chesoni [2002] 1KLR 867, and also in the case of Mukuma V Abuoga quoted above. The last case, referring to the exercise of discretion by the High Court and the Court of Appeal in the granting stay of execution, under Order 42 of the CPR and Rule 5(2) (b) of the Court of Appeal Rules, respectively, emphasized the centrality of substantial loss thus: “…the issue of substantial loss is the cornerstone of both jurisdictions. Substantial loss is what has to be prevented by preserving the status quo because such loss would render the appeal nugatory.”
With this observation, of course, a frivolous appeal cannot in practical terms be rendered nugatory. The only admonition, however, is that the High Court should not base the exercise of its discretion under order 42 Rule 6of the CPR only on the chances of the success of the appeal. Much more is needed in accordance with the test I have set out above.”
19.The Applicant submits that the intended Appeal raises arguable grounds of law and fact. The Applicant contends that the trial court erred in law and fact by failing to properly evaluate and weigh the evidence on record, disregarding material evidence adduced by the Applicant, and consequently arriving at the erroneous conclusion that the Respondent was the lawful proprietor of parcel known as TAITA TAVETA/KITOBO “B”/45. He urged that the learned Trial Court failed to consider the Appellant’s contention that the suit property was never sold, transferred or otherwise conveyed to the Respondent thereby raising the substantive question for determination on appeal hence demonstrates arguebility of the Appeal .Should execution of the decree proceed pending the haring and determination of the intended appeal ,the applicant shall suffer loss that cannot be compensated with damages hence the irreparable loss likely to be suffered by applicant .the applicant has established the substantial loss to be suffered.
20/The applicant contended that the intended appeal shall be rendered nugatory should the application not be allowed. Court of Appeal in Stanley Kangethe Kinyanjui v. Tony Ketter & 5 others [2013] KECA 378 (KLR) stipulated as follows: -
“iv) In considering whether an appeal will be rendered nugatory the court must bear in mind that each case must depend on its own facts and peculiar circumstances. David Morton Silverstein v Atsango Chesoni, Civil Application No. Nai 189 of 2001.
v) An applicant must satisfy the court on both of the twin principles.
vi) On whether the appeal is arguable, it is sufficient if a single Bonafide arguable ground of appeal is raised. Damji Pragji Mandavia v Sara Lee Household & Body Care (K) Ltd, Civil Application No. Nai 345 of 2004.
vii) An arguable appeal is not one which must necessarily succeed, but one which ought to be argued fully before the court; one which is not frivolous. Joseph Gitahi Gachau & Another v. Pioneer Holdings (A) Ltd. & 2 others, Civil Application No. 124 of 2008.
viii) In considering an application brought under Rule 5 (2) (b) the court must not make definitive or final findings of either fact or law at that stage as doing so may embarrass the ultimate hearing of the main appeal. Damji Pragji (supra).
ix) The term “nugatory” has to be given its full meaning. It does not only mean worthless, futile or invalid. It also means trifling. Reliance Bank Ltd v Norlake Investments Ltd [2002] 1 EA 227 at page 232.
x) Whether or not an appeal will be rendered nugatory depends on whether or not what is sought to be stayed if allowed to happen is reversible; or if it is not reversible whether damages will reasonably compensate the party aggrieved.
xi) Where it is alleged by the applicant that an appeal will be rendered nugatory on account of the respondent's alleged impecunity, the onus shifts to the latter to rebut by evidence the claim. International Laboratory for Research on Animal Diseases v Kinyua, [1990] KLR 403.”
21.The Applicant bears the burden of demonstrating that the appeal shall be rendered nugatory should the orders sought not be granted. The issue in dispute is change of ownership of land parcel TAITA/ TAVETA/KITOBO “B”/45from the Applicant to the respondent which if not stayed will prejudice the interest of Applicant in the suit property hence the prejudice likely to be suffered. The applicant has shown good faith to furnish security for due performance of the decree to safeguard the competing interest of the parties to the suit property pending hearing and determination of the intended appeal on such terms to be provided by the court.
22.The intended appeal is pending filing, hearing and determination. The court therefore orders that the costs of the application shall abide by the outcome of the appeal.
23.The Final disposition of the court on the application is that the Court allows the application as follows:-
1. Leave is granted to the applicant to file and serve the memorandum of appeal out of time upon the respondent within 14 days from the date of the ruling.
2. Stay of execution pending the filing, hearing and determination of appeal is granted subject to applicant depositing Kshs 100,000.00 as security to be deposited in court within 21 days from the date of the ruling.
3. In default leave granted shall automatically lapse and deemed vacated without further orders from the court.
4. Costs of the application to abide by the outcome of the intended appeal.
It is ordered accordingly.
DATED, SIGNED AND DELIVERED ON THIS 21 st DAY OF SEPTEMBER 2026, AT VOI IN PRESENCE OF:
APPLICANT IN PERSON(ONLINE)
MR ANGIMA FOR THE RESPONDENT.
LETISIA -COURT ASSISTANT
BY J.A. ORWA(JUDGE)
21.9.2026.