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ELCDismissedNot stated in the judgment· [2025] KEELC 4368 (KLR)

Lumunyasi & another v Soita (Environment and Land Appeal E081 of 2024) [2025] KEELC 4368 (KLR)

Court not expressly named in the judgment; an appellate court sitting at Kakamega hearing an appeal from Butali Law Courts (magistrates' court)
28 May 2025
ANA. Nyukuri
1,213 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~5 min to read original · ~4 min brief

The bottom line

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A Kakamega court refused to stop execution of a land judgment, ruling that fear of execution alone is not enough to justify a stay pending appeal.

What this practically means

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Executive summary

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The appellants, appearing in person, filed a Notice of Motion dated 25th November 2024 seeking an injunction restraining the trial magistrate at Butali Law Courts from issuing orders to the respondent, and stay of execution of the judgment and orders of 19th November 2024 pending the hearing of their appeal. The application was supported by the appellants' affidavit, in which they claimed ownership of parcel N. Kabras/Malava/3XX9 and asserted they would suffer irreparable loss and their appeal be rendered nugatory if stay was not granted. The respondent, Mary Beatrice Soita, opposed the application, contending it was defective, that the court could not instruct the subordinate court, and that she, not the appellants, was in possession of the suit property, having acquired title by adverse possession. The court observed that the pleadings were drafted by John Barasa Kausi, a non-lawyer, and that the orders sought were unclear. It declined to issue any injunction against the trial magistrate, who was not a party, no law having been shown permitting such orders. The sole remaining issue was whether the conditions for stay of execution pending appeal under Order 42 Rule 6 of the Civil Procedure Rules were met. Applying the principles in James Wangalwa & Another v. Agnes Naliaka Cheseto, the court held that imminent execution alone is not substantial loss; the appellants gave no basis for their claim of irreparable loss and, being out of possession of the suit property, would not suffer substantial loss if execution proceeded. The application was dismissed with costs to the respondent.

Key legal issues

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01

Injunction against a trial magistrate

Holding

Refused; an appellate court cannot issue an injunction against a trial magistrate who is not a party and where no law permitting such orders is cited

Reasoning

The court noted the pleadings were drafted by a non-lawyer and the orders sought were unclear. The trial magistrate was not a party to the appeal, and the appellants cited no law empowering the appellate court to injunct the magistrate. The court therefore declined to issue orders against the magistrate and confined itself to the stay application.

p. 2
02

Conditions for stay of execution pending appeal under Order 42 Rule 6

Holding

The appellants failed to establish substantial loss; mere imminence of execution does not qualify, and non-possession of the suit property undermined their claim

Reasoning

The court set out the Order 42 Rule 6 conditions: substantial loss, application without unreasonable delay, and security for due performance of the decree. The appellants merely asserted irreparable loss without explaining its nature, and being out of possession, execution against them would not cause substantial loss. The application was therefore dismissed.

p. 5

Legal principles established

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  • Execution is a lawful process and imminent execution alone cannot be the basis for granting a stay of execution pending appeal
  • To obtain stay of execution pending appeal an applicant must demonstrate substantial loss, absence of unreasonable delay, and willingness to provide security

Court orders

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  1. 1.The application dated 25th November 2024 is dismissed
  2. 2.Costs of the application awarded to the respondent
On appeal from
Butali Law Courts (magistrates' court)
Jurisdiction invoked
Appellate jurisdiction under Order 42 Rule 6 of the Civil Procedure Rules (stay of execution pending appeal)

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, "Lumunyasi & another v Soita (Environment and Land Appeal E081 of 2024) [2025] KEELC 4368 (KLR)", Case Analysis (2025). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/4368/eng@2025-05-28

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