Before Court is the Notice of Motion dated 11th September 2025 in which the Applicant seeks, inter alia, an order of stay of execution of the decree issued in Kimilili Senior Principal Magistrate’s Court ELC Case No. E049 of 2022, leave to lodge an appeal out of time against the judgment delivered on 16th April 2025, and costs of the application to abide the outcome of the intended appeal.
The application is premised on the grounds set out on its face and supported by the affidavit of the Applicant sworn on 11th September 2025. The Applicant depones that judgment in the subordinate court was delivered dismissing his suit; that at the time of delivery of judgment he was unwell and unable to attend court or promptly take steps towards an appeal; that he annexed a medical examination certificate from Bungoma County Referral Hospital dated 15th May 2025; and that he subsequently applied for certified copies of proceedings on 22nd July 2025, which have not been supplied to date.
The Applicant further avers that the Respondents have commenced execution of the decree and have approached the Land Registrar for purposes of demarcation and registration of title deeds in respect of Land Parcel No. BUNGOMA/KIBISI/305, which he states is the only land owned and occupied by his family.
The Respondents did not file any response to the application despite service. The Court therefore directed that the application proceeds as unopposed.
The Applicant filed written submissions dated 18th September 2025, reiterating the depositions in his supporting affidavit and urging the Court to grant stay in order to preserve the substratum of the intended appeal.
Issues for Determination
Having considered the application, the affidavit evidence, and the submissions on record, the issues falling for determination are:
a) Whether the Applicant has satisfied the conditions for grant of stay of execution pending appeal under Order 42 Rule 6(2) of the Civil Procedure Rules, 2010; and
b) Whether sufficient cause has been shown to warrant grant of leave to appeal out of time.
The Law
The grant of stay of execution pending appeal is governed by Order 42 Rule 6(2) of the Civil Procedure Rules which provides that no order of stay shall issue unless the Court is satisfied that:
a) Substantial loss may result to the applicant unless the order is made;
b) The application has been made without unreasonable delay; and
c) Such security as the Court orders for the due performance of the decree has been given.
These conditions are conjunctive and must all be satisfied. The principles guiding the exercise of this discretion have been articulated in decisions such as Butt v Rent Restriction Tribunal [1982] KLR 417, Kenya Shell Ltd v Benjamin Karuga Kibiru & Another [1986] KLR 410, and James Wangalwa & Another v Agnes Naliaka Cheseto [2012] eKLR.
The request for leave to appeal out of time is anchored on Section 79G of the Civil Procedure Act, which empowers the Court to admit an appeal out of time upon sufficient cause being shown. The guiding considerations were restated by the Supreme Court in Nicholas Kiptoo Arap Korir Salat v IEBC & 7 Others [2014] eKLR.
Analysis
a. Substantial Loss
The first and most critical condition under Order 42 Rule 6(2)(a) is whether the Applicant has demonstrated that substantial loss may result unless stay is granted. This requirement goes to the very jurisdiction of the Court to grant stay.
In James Wangalwa & Another v Agnes Naliaka Cheseto [2012] eKLR, the Court clarified that the mere fact that execution has been commenced, or is threatened, does not by itself amount to substantial loss. An applicant must demonstrate that execution will create a state of affairs that will irreparably affect or negate the very essence of the appeal.
The inquiry before Court is therefore not whether the decree is capable of execution, but whether the consequences of that execution would so alter the prevailing circumstances that the appellate process would be rendered ineffectual.
In the present case, the decree sought to be stayed concerns proprietary interests over Land Parcel No. BUNGOMA/KIBISI/305. The Applicant has deponed, without rebuttal, that the Respondents have taken steps towards execution by engaging the Land Registrar for purposes of demarcation and registration of title.
He further avers that the suit land constitutes the only land upon which he and his family reside and derive their livelihood. Land, particularly family land, is not an ordinary commodity, and its loss cannot always be adequately compensated by damages.
Once registration is effected or third-party interests intervene, reversal may be legally possible but practically hollow. In such circumstances, the appeal, even if successful, would have been stripped of its practical utility.
Applying the principle articulated in James Wangalwa & Another v Agnes Naliaka Cheseto (supra), the Court is satisfied that the Applicant has demonstrated a real risk of substantial loss of a nature that would irreversibly alter the substratum of the dispute and render the intended appeal nugatory.
The first limb of Order 42 Rule 6(2) is therefore satisfied.
b. Unreasonable Delay
Judgment in the subordinate court was delivered on 16th April 2025. The present application was filed on 11th September 2025.
The Applicant explains the delay on account of illness and has annexed a medical examination certificate dated 15th May 2025. He further explains that he applied for certified copies of proceedings on 22nd July 2025 but the same have not been supplied.
What constitutes unreasonable delay depends on the circumstances of each case. The explanation offered by the Applicant has not been controverted and, in the circumstances of this case, the Court is not persuaded that the delay was inordinate or inexcusable.
The second limb of Order 42 Rule 6(2) is therefore satisfied.
c. Security for Due Performance
The requirement for security under Order 42 Rule 6(2)(b) is intended to safeguard the rights of the decree-holder pending appeal.
The decree in issue concerns land and not a monetary award. In such cases, courts have recognised that preservation of the suit property itself may constitute adequate security, provided neither party is permitted to alter its character or proprietary status.
The Court is satisfied that a conditional stay, coupled with appropriate preservatory orders, sufficiently secures the due performance of the decree should the appeal fail.
d. Leave to Appeal Out of Time
The Applicant has sought leave to appeal out of time. The delay has been explained on grounds of illness and delay in obtaining proceedings.
Guided by the principles set out in Nicholas Kiptoo Arap Korir Salat v IEBC & 7 Others (supra), the Court is satisfied that sufficient cause has been shown and that the intended appeal is arguable, without delving into its merits.
Disposition
In the result, the Court finds that the Applicant has satisfied the threshold for grant of stay of execution pending appeal under Order 42 Rule 6(2) of the Civil Procedure Rules.
Accordingly, the Court makes the following orders:
a) There shall be a stay of execution of the decree issued in Kimilili Senior Principal Magistrate’s Court ELC Case No. E049 of 2022 pending the hearing and determination of the intended appeal.
b) The stay granted herein is conditional upon the Applicant not selling, transferring, charging, leasing, subdividing, wasting, or in any other manner dealing with Land Parcel No. BUNGOMA/KIBISI/305 in a way that is prejudicial to the Respondents pending the hearing and determination of the appeal.
c) The Applicant shall file and serve the Memorandum of Appeal within fourteen (14) days from the date hereof, failing which the stay orders herein shall automatically lapse.
d) Pending the hearing and determination of the appeal, the status quo obtaining on the ground as at the date of this ruling shall be maintained.
e) Costs of this application shall abide the outcome of the appeal.
It is so ordered.
DATED, SIGNED AND DELIVERED VIRTUALLY THIS 5th DAY OF FEBRUARY, 2026.
………………………………
HON JUSTICE E. CHERONO
JUDGE – ELC
In the presence of;
1. Applicant / Advocate – Absent
2. Respondent/ Advocate – Absent
3. Court Assistant – Diana Kemboi
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