Tanui (Suing as the administrator of the Estate of Kaptingei Chemwor (Deceased) & 40 others ((Suing as the administrator of the Estate of Kaptingei Chemwor (Deceased)) v Chelugui & another & 4 others ((Sued as administrators of the Estate of Norah Kimngeny Chelugui (Deceased)) (Environment & Land Case 404 of 2013) [2023] KEELC 897 (KLR)

The court applied Order 42 Rule 6. On substantial loss, some plaintiffs had occupied the suit property for over 30 years with permanent structures, so eviction before appeal would occasion substantial loss. On delay, the file had been in Kisumu after the judge's transfer, and in any event the applications were filed within the 60-day grace period. The applicants were willing to furnish security, and the court fixed it at Kshs 10,000,000/= within 30 days, balancing the parties' rights and the nugatory-appeal risk.

The 3rd Defendant argued, citing John Osoro Ombese v John Kumenda, that a dismissed suit produces a negative order incapable of stay. The court held that because dismissal of the plaintiffs' suit automatically meant eviction of long-standing occupants, the loss was concrete and the negative-order objection could not hold.

The court accepted the explanation that the court file was in Kisumu after the judge's transfer, and noted the plaintiffs had been given 60 days to vacate and had filed within that period, so the applications were made without unreasonable delay for purposes of Order 42 Rule 6(2)(a).

The 3rd Defendant argued the status quo application was incompetent post-judgment since the court becomes functus officio. The court did not decide that question, holding that once stay was granted it was unnecessary to consider status quo.