La Marina Limited v Nathan Kahara & 2 others [2021] KEELC 3131 (KLR)

The court distinguished between positive orders capable of execution and dismissals of claims. Dismissing a petition simply leaves the applicant in the position it occupied before filing suit, so no substantial loss can arise and the appeal cannot be rendered nugatory by non-stay. The court adopted the Court of Appeal's reasoning in Yagnesh Devani v Joseph Ngindari that a dismissal order cannot be undone by a stay application.

Order 42 Rule 6(2) requires satisfaction that substantial loss may result, that the application was made without unreasonable delay, and that security for due performance has been given. Because the underlying order was a dismissal incapable of execution, the Applicant could demonstrate no substantial loss, and the stay threshold was accordingly not met.

The Applicant conceded the 1st Respondent took possession upon issuance of the 2018 title, so restraining him from entering his own possession was illogical. Further, consideration of the merits of the intended appeal is reserved for Court of Appeal applications under Rule 5(2)(b) of the Court of Appeal Rules, not for first-instance stay applications.