Nyantika v Nyantika & 2 others; Ogega & another (Plaintiffs to the Counterclaim); Nyantika & 3 others (Defendant to the Counterclaim) (Environment and Land Case 26 of 2018) [2025] KEELC 6810 (KLR)
The bottom line
#The court refused to pause an eviction order because the applicant only claimed he would suffer loss without explaining what that loss actually was.
What this practically means
#Executive summary
#Key legal issues
#Whether the applicant demonstrated substantial loss warranting stay of execution
The applicant failed to demonstrate substantial loss; merely alleging he would suffer substantial loss without detailing how he uses the land or what loss eviction would cause does not meet the Order 42 Rule 6(2)(a) threshold.
The court noted that every execution causes some loss, but the rules require 'substantial' loss. The applicant, who claimed occupation of over 40 years, gave no elaboration of his occupation or use of the land, making it impossible for the court to assess whether the alleged loss was substantial. Having failed on this limb, the court did not need to consider security, and the application was bound to fail.
Whether the application was brought without unreasonable delay
The application was filed timeously; judgment was delivered 17 June 2025 and the application filed 25 June 2025, so this condition was satisfied.
The court found this limb easily satisfied by comparing the date of the judgment with the date of filing the application. However, satisfaction of this condition alone was insufficient, as the decisive condition of substantial loss was not met.
Legal principles established
#- To obtain a stay of execution under Order 42 Rule 6(2), the applicant must demonstrate (i) the application was made without unreasonable delay, (ii) substantial loss, and (iii) due security for performance of the decree.
- Mere loss is insufficient; the loss must be 'substantial' and must be specifically demonstrated, not merely asserted.
Court orders
#- 1.The application for stay of execution pending appeal dated 26 June 2025 is dismissed
- 2.Costs of the application awarded to the respondents
- Jurisdiction invoked
- Order 42 Rule 6(2) of the Civil Procedure Rules - stay of execution pending appeal
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Nyantika v Nyantika & 2 others; Ogega & another (Plaintiffs to the Counterclaim); Nyantika & 3 others (Defendant to the Counterclaim) (Environment and Land Case 26 of 2018) [2025] KEELC 6810 (KLR)", Case Analysis (2025). ELC Case No. 128 of 2013 (OS). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/6810/eng@2025-10-09
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.