The Applicant who is also the Defendant in this suit has moved this court vide a Notice of Motion dated 18th July 2025 seeking the following orders;
1. (SPENT)
2. THAT this Honourable Court be pleased to grant a stay of execution of the judgment and Decree of this Honourable Court delivered on 19th May 2025 pending the hearing and determination of the appeal.
3. THAT costs of this application be provided for.
The application is based on seven grounds shown on the face of the application supported by the affidavit of the Applicant sworn on even date.
In a brief summary, the Applicant in her supporting affidavit stated that she was aggrieved by the Judgment/Decree of this Honourable Court delivered on 19th May 2025 and filed a Notice of Appeal and prepared a draft Memorandum of appeal which raises weighty and arguable grounds which include whether the occupation by the Respondent was continuous non-permissive and uninterrupted and whether her acknowledgment of her title defeated the claim for adverse possession.
The Applicant further stated that unless this Honourable Court grants an order for stay of execution, there is imminent danger that the respondent will execute the decree and effect the transfer of the suit land thereby rendering the intended appeal nugatory and defeat its purpose.
The Applicant also deposed that the orders of this court including the blanket award of costs are not only harsh but will occasion undue financial hardship and irreparable loss unless the stay orders are granted. He stated that he is ready and willing to comply with any reasonable conditions that this Honourable court may give including but not limited to status quo or provision for security.
By way of a response, the Respondent through the Firm of M/S Athung’a & Co. Advocates filed Grounds of opposition dated 29th September 2025 raising the following five (5) Grounds;
1. The application is unmeritorious and an abuse of the due process of law.
2. The Applicant has not met the requirements for granting of stay of execution.
3. The application is inordinately made.
4. The application is meant to delay the Respondent from enjoying the fruits of the Judgment in his favour.
5. The Applicant has not demonstrated that the intended appeal has high chances of success.
DEFENDANT/APPLICANTS WRITTEN/SUPPLIMENTARY SUBMISSIONS
Through the Firm of BS ADVOCATES LLP, the Defendant/Applicant submitted on the following issues
a) Whether the Applicant has satisfied the conditions for the grant of stay of execution pending appeal under Order 42 Rule 6 of the Civil Procedure Rules?
b) Whether the intended appeal raises arguable issues with high chances of success?
c) Whether substantial loss may result to the Applicant if stay of execution is not granted and
d) Whether the application has been brought without unreasonable delay?
On the first issue, the Applicant referred to orders 42 Rule 6(2) of the Civil Procedure Rules and Section 3A CPA and submitted that he has satisfied the requirements for the grant of stay pending appeal. As to whether the intended appeal raises arguable grounds, the applicant answered in the affirmative and argued that the key ground is that the learned trial Judge erred in law and fact in holding that the plaintiff/Respondent had proved adverse possession despite clear and uncontroverted evidence that the Respondent executed a written acknowledgment of the Applicant’s title dated 26th April 2018. He cited the provisions of Section 23(1) and 24 of the Limitation of Actions Act CAP. 22 Laws of Kenya. He argued that the agreement dated 26/04/2018 is a clear acknowledgment of the Applicant’s title which interrupted the running of time for adverse possession. He cited the case of; PETER MBIRI MICHUKI V SAMUEL MUGO MICHUKI (2014) eKLR and PUBLIC TRUSTEE V WANDURU (1984) KLR 314.
On the issue of substantial loss, the Applicant argued that unless an order for stay of execution is granted, the Respondent may proceed to transfer or otherwise deal with L.R NO. NDIVISI/MUCHI/3250. He relied in the case of KENYS SHELL LTD V KIBIRU (1986) KLR 410.
The Applicant also argued that there is no inordinate delay considering that the present application was filed on 18th July 2025, less than two months from the date of judgment after filing the Notice of appeal dated 3rd June 2025.
On the issue of security, the Applicant stated that he is ready and willing to comply with any reasonable conditions that this Honourable Court may impose.
RESPONDENT’S WRITTEN SUBMISSIONS
The Plaintiff/Respondent on his part filed submissions dated 29th September 2025 and submitted that the application lacks merit and should not be allowed. He argued that when judgment was delivered on 19/05/2025, the court gave a stay for 30 days and the current application for stay was filed well over two months on 18/07/2025. He submitted that the Notice of appeal was filed at the expiry of the statutory period and no leave for extension of time was sought and obtained and that the applicant did not write a letter requesting for certified copies of proceedings and judgment for purposes of appeal. He submitted that the intended appeal is a sham and has no chances of success.
In conclusion, the Respondent submitted that the current application is meant to delay the Respondent from enjoying the fruits of the judgment issued in his favour.
LEGAL ANALYSIS AND DECISION.
I have considered the Notice of Motion application, the supporting affidavit, the Replying affidavit, rival submissions by counsel and the relevant law. Order 42 Rule 6(2) of the Civil Procedure Rules sets out three conditions for the grant of stay pending appeal as follows;
a) The Applicant must demonstrate that he will suffer substantial loss unless the order is made.
b) The application must be brought without unreasonable delay and
c) The Applicantmust give security as the court orders for the due performance of such decree or order as may ultimately be binding on him has been given.
On the first condition, the Applicant argued that unless an order for stay of execution is made, the Respondent may proceed to transfer or otherwise deal with L.R NO. NDIVISI/MUCHI/3250 which is the subject matter of the dispute thereby dispossessing him permanently of her property rights and render the appeal nugatory. She relied in the case of Kenya Shell Ltd-v-Kibiru (1986) KLR 410.
It is trite that substantial loss is the main factor that any party seeking an order for stay pending appeal must establish to the court as was stated in the case of Mukuna-v-Abuoga (1988) KLR 645 where the court held;
‘’…the issue of substantial loss is the cornerstone of both jurisdictions. Substantial loss is what has to be prevented by the status quo because such loss would render the appeal nugatory.’’
Again in James Wangalw & Another v Agnes Naliaka Cheseto (2012) KLR, Gikonyo J also weighed into the issue and stated as follows;
‘’ 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..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.’’
I agree with the decisions of the superior courts. The assertion by the Applicant that execution would be issued unless the order of stay cannot amount to substantial loss as execution in itself is a lawful process. In the same way an applicant in execution of a monetary decree, the Applicant in a similar application before the Environment and Land Court must demonstrate with tangible and empirical evidence that unless the order for stay of execution is given, the Respondent would transfer the subject matter to third parties beyond the reach of the court thereby rendering the appeal nugatory. The allegations by the applicant that the Respondent may transfer or deal with the suit land thereby dispossessing him permanently are unsubstantiated and amount to nothing.
On the issue whether the application was brought timeously, it is not in dispute that the impugned judgment of this Court was delivered on 19th May 2025 and took the applicant until 28th July, 2025 to file the current application. A period of more than two months without explanation is inordinate and inexcusable. The period for filing appeal has even lapsed. I find a period of more than two months without explanation inordinate and unacceptable.
On the issue of security, the Applicant at paragraph 10 of her supporting affidavit gave an undertaking to comply with any reasonable conditions this court may impose for the grant of stay orders. In my view, the Applicant has satisfied one out of the three conditions. In order to succeed in an application for stay pending appeal, an applicant must satisfy all the three conditions sequentially.
The upshot of my finding is that the application dated 18th July 2025 and filed in court on 28/07/2025 is devoid of merit and the same is hereby dismissed with costs to the Respondents.
Orders accordingly.
READ, DELIVERED and SIGNED at Bungoma this 11th Day of December, 2025
……………………………………..
HON. E.C CHERONO
ELC JUDGE.
In the presence of;
1. M/S Nekesa H/B for Kapten for the Applicant.
2. Mr. Wamacho H/B for Athung’a for the Respondent
3. Bett C/A.