Introduction
1. Before court is a notice of motion dated 31st March 2026 filed by the defendants seeking the following orders;
a) Spent.
b) Spent.
c) Spent.
d) That this Honourable court be pleased to grant stay of execution of the court’s decree and judgement in Kakamega Environment and Land Case No. 1B of 2022 pending the hearing and determination of the appeal in the Court of Appeal at Kisumu being Civil Appeal No. E057 of 2026.
e) That the costs of this application be provided for
2. The application is premised on the affidavit sworn by the 1st defendant dated 31st March 2026. The defendants/applicants’ case is that judgment in this matter was delivered on 18th September 2025, wherein the court issued a permanent injunction restraining the defendants from entering or in any manner interfering with land parcel numbers Malakisi/Township/375, Malakisi/Township/413 and Malakisi/Township/419. That the court further awarded the plaintiff general damages for trespass in the sum of Kshs. 500,000/= together with the costs of the suit and interest on both the costs and damages awarded.
3. The 1st defendant further deponed that the costs of the suit were taxed on 18th February 2026 in the sum of Kshs. 248,444/=. That being dissatisfied with the judgment and decree, the defendants filed a Notice of Appeal and applied for certified copies of the proceedings and judgment on 19th September 2025. The defendants contend that they have an arguable appeal with high chances of success as demonstrated in the Memorandum of Appeal filed in Civil Appeal No. E057 of 2026. They further averred that the plaintiff will not suffer any prejudice that cannot be compensated by an award of costs should the orders sought be granted.
4. The application is opposed. The plaintiff/respondent filed a replying affidavit dated 8th April 2026 opposing the application. It is his case that the application is frivolous, vexatious, and an abuse of the court process. He contends that the application does not satisfy the conditions set out under Order provisions of 42 Rule 6 of the Civil Procedure Rules, 2010, and therefore ought to be dismissed with costs.
5. The respondent further argues that the applicants have failed to explain why they took over six months to file the present application. He also contends that they have not demonstrated the substantial loss they stand to suffer should the order for stay be declined. It is his position that he holds a lawful decree and is entitled to enjoy the fruits of his judgment, and that he stands to suffer prejudice if the orders sought are granted. He further avers that the appeal lodged before the Court of Appeal has no chances of success.
6. Parties filed written submissions in support of their respective positions. On record are the applicants’ submissions dated 18th May 2026 and the respondent’s submissions dated 8th April 2026, both of which the court has duly considered.
Analysis and determination
7. The court has carefully considered the application, the response thereto, the rival submissions and the authorities cited. In my considered view, the main issue that falls for determination is whether the applicant has met the threshold for the grant of an order of stay of execution pending appeal to the Court of appeal.
8. Order 42 Rule 6 provide for stay of execution 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 orders set aside.
2. No order for stay of execution shall be made under sub rule 1 unless:-
a. The Court is satisfied that substantial loss may result to the 1st 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.”
9. Therefore, to obtain stay of execution pending appeal, an applicant ought to demonstrate imminent substantial loss, willingness to provide security and move the court without unreasonable delay.
10. The power of the Court to grant or refuse an application for stay of execution is discretionary. In Butt v Rent Restriction Tribunal [1979] KECA 22 (KLR), the Court of Appeal stated as follows;
“It is in the discretion of the court to grant or refuse a stay but what has to be judged in every case is whether there are or not particular circumstances in the case to make an order staying execution. It has been said that the court as a general rule ought to exercise its best discretion in a way so as not to prevent the appeal, if successful from being nugatory...”
11. Further, in the case of Vishram Ravji Halai vs. Thornton & Turpin Civil Application No. Nai. 15 of 1990 [1990] KLR 365, the Court of Appeal in discussing the conditions for stay stated as follows;
“whereas the Court of Appeal’s power to grant a stay pending appeal is unfettered, the High Court’s jurisdiction to do so under Order 42 rule 6 of the Civil Procedure Rules is fettered by three conditions namely, establishment of a sufficient cause, satisfaction of substantial loss and the furnishing of security. Further the application must be made without unreasonable delay.”
12. Imminent execution alone cannot form the basis for grant of stay pending appeal. A Party must clearly state what loss, if any, they stand to suffer if the order of stay is to be granted. In the case of James Wangalwa & Another v Agnes Naliaka Cheseto [2012] eKLR, the court held 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. 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.”
13. In the instant case, the appellant has stated that he was dissatisfied with the decree and filed an appeal in the court of appeal and sought certified proceedings. That the judgment ordered a permanent injunction against him, payment of general damages for Kshs. 500, 000/= together with costs assessed at Kshs. 248, 444/=. That he has an arguable appeal with chances of success. That no prejudice will be suffered by the plaintiff that cannot be compensated by an award of costs. That the application is brought in good faith and that the applicant has shown willingness to provide security.
14. It is clear from the applicant’s supporting affidavit that there is no mention, allegation or evidence of substantial loss that may be suffered by the applicant if execution proceeds. It is trite that the cornerstone for the exercise of the court’s discretion to grant stay pending appeal, is the demonstration of substantial loss. In the instant case, substantial loss has neither been alleged nor proved.
15. Whether or not the applicant has an arguable appeal is a matter not within the jurisdiction of this court. This court having already determined the suit on merit and pronounced itself within the judgment herein on the rights of the parties, has no power to interrogate whether its decision stands a chance to be overturned by the Court of Appeal. Therefore, the test of whether there is an arguable appeal in reference to the judgment of this court, is a matter for the Court of Appeal and cannot form the basis for grant of stay pending appeal.
16. In the premises, I find and hold that the application dated 31st March 2026 lacks merit and the same is hereby dismissed with costs.
DATED, SIGNED AND DELIVERED AT KAKAMEGA IN OPEN COURT/VIRTUALLY THROUGH MICROSOFT TEAMS VIDEO CONFERENCING PLATFORM THIS 20TH DAY OF JULY 2026.
In the presence of;
No appearance for the defendants/applicants
Mr. Bwónchiri for the plaintiff/respondent
Court Assistant: Delphine