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ELCDismissedKisumu CMC ELC No. E38B of 2021 (Appeal therein)· [2025] KEELC 3039 (KLR)

Wanyama & another v Aboge (Environment and Land Appeal E037 of 2024) [2025] KEELC 3039 (KLR)

Environment and Land Court
1 April 2025
SOS. Okong'o
1,401 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Environment and Land Court in Kisumu refused to pause a land judgment on appeal because the appellants waited six months and could not show real harm if the judgment took effect.

What this practically means

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Executive summary

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The Appellants, by Notice of Motion dated 16th December 2024 under Order 42 Rule 6 of the Civil Procedure Rules, sought a stay of execution of the judgment of Hon. E.N. Mwenda, PM delivered on 23rd May 2024 in Kisumu CMC ELC No. E38B of 2021, which had restrained them from trespassing on the Respondent's property (Kisumu/Konya/2886), ordered them to remove their structures on Plot No. 6542 within 90 days, and awarded the Respondent general damages of Kshs. 100,000/- with interest and costs. The 2nd Appellant, a spouse of the 1st Appellant and registered owner of Plot No. 6542, alleged that the Respondent threatened demolition of their structures and offered to deposit the decretal sum as security. The Respondent opposed, averring that he had already evicted the Appellants by demolishing their structures after they failed to vacate within the 90 days, that an executed decree cannot be stayed, and that he was a person of means able to refund any sum paid. S. Okong'o, J heard the application orally on 17th February 2025 and dismissed it. The court found a 6-month unexplained delay in bringing the application unreasonable, held that the eviction limb had already been executed and could not be stayed, and held that the Appellants failed to demonstrate substantial loss on the damages and costs limbs, the Respondent's ability to refund the decretal sum having gone unrebutted. The application was dismissed with costs to the Respondent.

Key legal issues

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01

Delay in bringing the stay application

Holding

A 6-month unexplained delay in filing the stay application is unreasonable

Reasoning

The Appellants filed the appeal within 30 days of the judgment but took 6 months to bring the stay application without offering any explanation. Order 42 Rule 6(2) requires that the application be made without unreasonable delay. The unexplained gap of 6 months failed this threshold.

p. 3
02

Substantial loss

Holding

The Appellants failed to demonstrate substantial loss on any limb of the decree

Reasoning

The court analysed the three limbs of the lower court order: the eviction limb had already been executed and could not be stayed; the decretal sum of Kshs. 100,000/- could be refunded by the Respondent, who averred he was a person of means and this was unrebutted; and costs remained unassessed, with no evidence of loss. Hence no substantial loss was shown.

p. 3

Legal principles established

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  • A court cannot stay a decree or limb of a decree that has already been executed
  • Substantial loss is the cornerstone for granting a stay of execution

Court orders

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  1. 1.The Appellants' Notice of Motion application dated 16th December 2024 is dismissed
  2. 2.Costs of the application to the Respondent

Authorities

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Legislation

  • Civil Procedure RulesOrder 42 Rule 6(1) and (2)

Cases cited (1)

  • Kenya Shell Limited v. Karuga
    (1982 – 1988) I KAR 1018
On appeal from
Chief Magistrate's Court, Kisumu
Kisumu CMC ELC No. E38B of 2021
Jurisdiction invoked
Order 42 Rule 6 of the Civil Procedure Rules

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, "Wanyama & another v Aboge (Environment and Land Appeal E037 of 2024) [2025] KEELC 3039 (KLR)", Case Analysis (2025). Kisumu CMC ELC No. E38B of 2021 (Appeal therein). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/3039/eng@2025-04-01

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