This ruling concerns the Notice of Motion dated 11th November 2025 by which the Appellant/Applicant seeks, inter alia, an order of stay of execution of the Judgment and Decree delivered on 18th September 2025 pending the hearing and determination of the appeal.
The application is premised on the grounds set out on its face and supported by the affidavit sworn by the Applicant on 11th November 2025. The Applicant avers that she is aggrieved by the Judgment which declared the Respondent the lawful proprietor of land parcel No. E. BUKUSU/N. SANG’ALO/2960 and ordered her to vacate land parcel No. E. BUKUSU/N. SANG’ALO/4956.
The Applicant deposes that she has lodged a Notice of Appeal and filed a Memorandum of Appeal raising serious and arguable issues of law and fact, including the validity of the Respondent’s title, the existence of an official survey map, and the propriety of the trial court’s treatment of the evidence of the County Land Surveyor.
She further avers that the subject property is her only home, that she has lived thereon for over 18 years, and that it hosts her sole source of livelihood being a cake baking business. She contends that eviction would render her homeless, occasion irreparable loss, and render the appeal nugatory.
The Respondent opposed the application through a Replying Affidavit sworn on 19th November 2025. She deposes that the application is frivolous and an abuse of the court process, that this Court is functus officio, and that the Applicant was already granted a stay of execution which had not yet lapsed, thereby rendering the present application res judicata.
The Respondent also challenges the existence of a valid appeal, contending that the annexed Memorandum of Appeal bears no case number or directions from the Court of Appeal. She further asserts that the Applicant has not satisfied the threshold for grant of stay pending appeal and that the application is intended to delay her enjoyment of the fruits of judgment.
The Applicant filed written submissions dated 20th November 2025, relying on Order 42 Rule 6(2) of the Civil Procedure Rules and authorities including Butt v Rent Restriction Tribunal [1982] KLR 417 and James Wangalwa & Another v Agnes Naliaka Cheseto [2012] eKLR. The Respondent did not file submissions.
Legal Analysis and Determination
I have considered the application, the affidavits on record, the Applicant’s submissions, and the applicable law. The issue for determination is whether the Applicant has satisfied the statutory threshold for grant of stay of execution pending appeal.
The applicable provision is Order 42 Rule 6(2) of the Civil Procedure Rules, which sets out three cumulative conditions that must be met before a stay can issue, namely: that the application has been made without unreasonable delay; that the applicant will suffer substantial loss unless the order is made; and that such security as the Court orders for the due performance of the decree has been given.
It is now settled that substantial loss is the cornerstone of the jurisdiction to grant stay pending appeal. In James Wangalwa & Another v Agnes Naliaka Cheseto [2012] eKLR, the Court held that an applicant must establish a state of affairs that will irreparably affect or negate the very essence of the appeal if stay is not granted.
The Applicant has anchored her claim of substantial loss on the assertion that the subject property is her only home and sole source of livelihood and that eviction would render her homeless and destroy her income. While these averments evoke sympathy, they are not, without more, sufficient to meet the legal threshold for substantial loss.
Substantial loss must be demonstrated by concrete evidence and not by generalized statements or apprehensions. In Kenya Shell Ltd v Benjamin Karuga Kibiru & Another [1986] KLR 410, the Court of Appeal emphasized that it is not enough for an applicant to merely state that he will suffer loss; he must prove the specific loss that is likely to occur.
In the present case, the Applicant has not placed before the Court any documentary or other cogent evidence to demonstrate the nature, extent, or irreversibility of the alleged loss. No valuation report, photographs, business records, or other material has been tendered to substantiate the claim that the developments on the land are of such a character that they cannot be restored or compensated by an award of damages.
Further, the Judgment sought to be stayed declared the Respondent the lawful proprietor of the suit property. The Respondent is therefore prima facie entitled to enjoy the fruits of her judgment. As was stated in Machira t/a Machira & Co. Advocates v East African Standard (No. 2) [2002] KLR 63, the Court should not lightly deprive a successful litigant of the fruits of his judgment without just cause.
The Applicant has also not demonstrated that the Respondent is a person of straw or otherwise incapable of making restitution should the appeal succeed. In the absence of such evidence, the Court cannot conclude that the appeal would be rendered nugatory by the execution of the decree.
While the Applicant has annexed a Notice of Appeal and a Memorandum of Appeal raising arguable points, the mere existence of an arguable appeal, without proof of substantial loss, is not sufficient to warrant a stay. The three conditions under Order 42 Rule 6(2) are conjunctive and not disjunctive.
On the issue of delay, I am satisfied that the application was filed timeously. However, compliance with one limb of Order 42 Rule 6(2) cannot cure non-compliance with another. The failure to establish substantial loss is fatal to the application.
As regards security, the Applicant has merely expressed a general willingness to abide by any terms the Court may impose but has not proposed any concrete form of security. This further tilts the balance against the exercise of discretion in her favour.
Quite apart from the foregoing, the Respondent raised the objection that this Court is functus officio and that the present application is res judicata. The record shows that upon delivery of Judgment on 18th September 2025, this Court, suo motu, granted the Applicant a stay of execution for a period of ninety (90) days, which lapsed on 17th November 2025.
While this Court retains limited residual jurisdiction to entertain an application for stay pending appeal under Order 42 Rule 6 of the Civil Procedure Rules, a party seeking a fresh or extended stay must demonstrate new or supervening circumstances not previously considered. In the present application, no such new facts or changed circumstances have been placed before the Court.
To that extent, the application substantially re-litigates an issue upon which the Court had already pronounced itself, thereby offending the doctrine of res judicata as codified under section 7 of the Civil Procedure Act. In the alternative, and in so far as the Court is invited to revisit and effectively suspend the operative effect of its final Judgment without satisfaction of the statutory threshold, the principle of functus officio militates against the grant of the orders sought. On this ground as well, the application is for dismissal.
The discretionary power to grant stay must be exercised judiciously and in a manner that balances the competing rights of the parties. In the circumstances of this case, I am not persuaded that the Applicant has discharged the burden placed upon her to justify the grant of stay of execution.
Disposition
In the premises, the Notice of Motion dated 11th November 2025 is hereby dismissed for failure to establish substantial loss within the meaning of Order 42 Rule 6(2) of the Civil Procedure Rules.
The interim stay orders, if any, are hereby vacated.
The Respondent shall be at liberty to execute the Decree.
Costs of the application shall be borne by the Applicant.
Orders accordingly.
DATED, SIGNED AND DELIVERED VIRTUALLY AT EMBU THIS 29TH DAY OF JANUARY, 2026
………………………………
HON. JUSTICE E. CHERONO
JUDGE
ENVIRONMENT AND LAND COURT
In the presence/absence of;
1. Applicant/Advocate-absent.
2. Respondent/Advocate-absent.
3. Diana C/A