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ELCDismissedNot stated in judgment (appeal from Kakamega CMCELC No. E111 of 2024)· [2025] KEELC 241 (KLR)

Elijah v Mangóli (Environment and Land Appeal E078 of 2024) [2025] KEELC 241 (KLR)

Environment and Land Court
29 January 2025
ANA. Nyukuri
1,163 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court refused to pause enforcement of a land judgment because the appellant provided no evidence he would suffer real loss.

What this practically means

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Executive summary

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The appellant, Rashid Siambiri Elijah, moved the Environment and Land Court at Kakamega by a Notice of Motion dated November 18, 2024 seeking stay of execution of the judgment of the lower court in Kakamega CMCELC No. E111 of 2024 delivered on November 7, 2024, pending the hearing of his appeal. He argued that he had extensively developed the suit property, cultivated and harvested sugarcane with proceeds deposited in court, that execution would cause him irreparable loss, that his appeal had high chances of success and might be rendered nugatory, and that he had moved without delay and the respondent would suffer no prejudice. The respondent, Naomi Munyisi Mang'oli, opposed the application in a replying affidavit, stating she was the registered proprietor of parcel No. Bunyala/Sirigoi/699, having purchased it from one Augustin Osundwa, that she was in occupation and use of the property, and that the appellant was a stranger to the proceedings without locus standi. The court framed a single issue: whether the applicant had met the conditions for stay of execution pending appeal under Order 42 Rule 6 of the Civil Procedure Rules, which require demonstration of substantial loss, application without unreasonable delay, and provision of security. Applying James Wangalwa & Another v. Agnes Naliaka Cheseto, the court held that imminent execution alone does not amount to substantial loss. Since both parties claimed possession, the burden lay on the appellant under Section 109 of the Evidence Act, but his affidavit attached no evidence of possession or development, and he did not identify the loss he would suffer if the permanent injunction issued against him was not stayed. The application was dismissed with costs to the respondent.

Key legal issues

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Whether the appellant satisfied the conditions for stay of execution pending appeal under Order 42 Rule 6

Holding

The application was dismissed because the appellant failed to demonstrate substantial loss, no evidence of possession or development was attached to his affidavit, and he did not state the loss he would suffer if the permanent injunction was not stayed

Reasoning

Order 42 Rule 6 requires an applicant to show substantial loss, that the application was made without unreasonable delay, and willingness to provide security. Both parties asserted possession of the suit property, so under Section 109 of the Evidence Act the burden lay on the applicant to prove his possession and development. His affidavit lacked any supporting evidence, and he did not specify the loss arising from the permanent injunction issued against him, so the appeal's prospects alone were insufficient.

p. 3

Legal principles established

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  • Imminent execution alone cannot justify stay; the applicant must demonstrate substantial loss if execution proceeds
  • The burden of proving possession rests on the party asserting it, under Section 109 of the Evidence Act

Court orders

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  1. 1.The appellant's Notice of Motion dated November 18, 2024 seeking stay of execution pending appeal is dismissed
  2. 2.Costs of the application to the respondent
On appeal from
Chief Magistrate's Court (Environment and Land), Kakamega
Kakamega CMCELC No. E111 of 2024
Jurisdiction invoked
Order 42 Rule 6 of the Civil Procedure Rules (appellate jurisdiction over the lower court's decree)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Elijah v Mangóli (Environment and Land Appeal E078 of 2024) [2025] KEELC 241 (KLR)", Case Analysis (2025). Not stated in judgment (appeal from Kakamega CMCELC No. E111 of 2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/241/eng@2025-01-29

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.