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ELCDismissedNot stated in the ruling (ruling on Notice of Motion dated 30th October 2024)· [2025] KEELC 6561 (KLR)

Oita v Emaero & 2 others (Environment and Land Case 40 of 2001) [2025] KEELC 6561 (KLR)

Environment and Land Court
2 October 2025
1,662 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 refused to pause enforcement of a land judgment because the losing party showed no real harm to themselves and offered no security.

What this practically means

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Executive summary

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This is a ruling of the Environment and Land Court (Busia) by Boaz N. Olao J on the 1st Defendant's Notice of Motion dated 30th October 2024 seeking an interim stay of execution of the judgment delivered on 15th October 2024, in which the court had found that the Plaintiff acquired land parcel No South Teso/Amukura/1901 by adverse possession and ordered the Defendants to surrender the title to the Land Registrar for cancellation and registration of the land in the Plaintiff's name. The Defendants had filed a Notice of Appeal. The Motion cited Order 22 Rule 7(2) and Order 51 Rule 1 of the Civil Procedure Rules, Sections 1A, 1B and 3A of the Civil Procedure Act and Article 159(2) of the Constitution, but the court held these did not strictly provide for the orders sought, though the lapse was not fatal, and determined the application under Order 42 Rule 6. Applying Vishram Ravji Halai v Thornton & Turpin, the court identified four conditions: sufficient cause, substantial loss, no unreasonable delay, and security. The court found no unreasonable delay, but held the Defendants failed to demonstrate any substantial loss, wrongly arguing the Plaintiff would suffer no prejudice, and made no offer of security - not even an offer to deposit the title deed in court. The Motion was dismissed with costs to the Plaintiff.

Key legal issues

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01

Whether the Defendants demonstrated substantial loss to warrant stay of execution

Holding

The Defendants failed to demonstrate any substantial loss; their averment that the Plaintiff would suffer no prejudice was not the applicable test.

Reasoning

Relying on Kenya Shell Ltd v Kibiru and Machira & Company Advocates v East African Standard, the court held substantial loss is the cornerstone of a stay application and must be proved with specific details. The supporting affidavit did not mention any substantial loss, only asserting no prejudice to the Plaintiff, which reversed the proper test. The Plaintiff already holds a judgment whose fruits would be prejudiced by continued stay.

p. 3
02

Whether the Defendants offered security for the due performance of the decree

Holding

No offer of security was made; even a good-faith offer to deposit the title deed in court would have sufficed, but none was forthcoming.

Reasoning

The court expected, as a sign of good faith, that the Defendants would at least offer to deposit the original title deed in court given the decree required surrender of the title for cancellation. The absence of any offer demonstrated the application was not advanced in the cause of justice but intended to delay the Plaintiff's enjoyment of the judgment.

p. 4
03

Whether the Motion was filed without unreasonable delay

Holding

Yes, the Motion was filed two weeks after judgment, so there was no unreasonable delay.

Reasoning

The judgment was delivered on 15th October 2024 and the Motion filed on 30th October 2024. This satisfied one of the four conditions for stay, but satisfaction of this condition alone could not sustain the application given failure on the substantial loss and security requirements.

p. 3
04

Whether the Motion failed because it cited inapplicable provisions

Holding

Although the cited provisions (Order 22 Rule 7(2), Order 51 Rule 1, Sections 1A, 1B, 3A of the Civil Procedure Act, Article 159(2)) do not strictly provide for the orders sought, that lapse did not defeat the Motion; the applicable provision is Order 42 Rule 6.

Reasoning

The court found the provisions invoked by the Defendants were not the correct basis for a stay pending appeal, but treated the defect as procedural and determined the application on the correct provision, Order 42 Rule 6(1) and (2), guided by the Court of Appeal's articulation of the conditions in Vishram Ravji Halai v Thornton & Turpin.

p. 2

Legal principles established

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  • An applicant for stay of execution must establish sufficient cause, substantial loss, absence of unreasonable delay, and offer security; the offer of security must come from the applicant himself.
  • The test on stay is what substantial loss the applicant will suffer if the order is not granted, not what prejudice the respondent will suffer.

Court orders

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  1. 1.The Notice of Motion dated 30th October 2024 is dismissed with costs to the Plaintiff

Authorities

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Legislation

  • Civil Procedure RulesOrder 22 Rule 7(2)
  • Civil Procedure RulesOrder 51 Rule 1
  • Civil Procedure RulesOrder 42 Rule 6(1) and (2)
  • Civil Procedure ActSection 1A
  • Civil Procedure ActSection 1B
  • Civil Procedure ActSection 3A
  • Constitution of KenyaArticle 159(2)

Cases cited (4)

  • Vishram Ravji Halai & Another -v- Thornton & Turpin (1963) LTD
    1990 KLR 365
  • Kenya Shell Ltd -v- Kibiru & Another
    1986 KLR 410
  • Machira & Company Advocates -v- East African Standard (No 2)
    2002 2 KLR 63
  • Machira -v- Mohamed
    2022 KEELC 2376 KLR
Jurisdiction invoked
Order 42 Rule 6(1) and (2) of the Civil Procedure Rules, invoking the court's discretion as the court appealed from to order stay of execution of its own 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, "Oita v Emaero & 2 others (Environment and Land Case 40 of 2001) [2025] KEELC 6561 (KLR)", Case Analysis (2025). Not stated in the ruling (ruling on Notice of Motion dated 30th October 2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/6561/eng@2025-10-02

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