Gilbert Kathenya Mukungi v Evangeline Kanyua Mwiandi ( As legal representative of the estate of Mwiandi Kaibiru) [2019] KEELC 3165 (KLR)

The court held that the mandatory requirement is that the court must be satisfied that substantial loss may result if stay is not granted. The respondent's long-standing possession of the land meant that refusal of stay would not deprive the applicant of anything of substance. The court declined to decide whether the intended appeal was arguable, holding that this was not the purview of the court appealed from.

The court had granted an interim stay on 21st December 2018 conditional on the applicant depositing security within 21 days, failing which the stay would lapse. The applicant neither deposited the security nor explained the failure, nor evinced any intention to give security. Since the provision is mandatory, non-compliance was fatal to the application.

The respondent argued that the High Court/ELC cannot apply the Court of Appeal twin tests of arguability and nugatory-ness. The court declined to address this and other issues, holding that assessing whether the appeal is arguable is outside its purview, and disposed of the application solely on the Order 42 Rule 6(2) conditions.