Kahungu v Wanyonyi & 2 others (Environment and Land Case E004 of 2023) [2025] KEELC 6909 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Whether the applicant established the conditions for a stay of execution pending appeal
The application failed: no substantiated evidence of investment at risk and no evidence of a filed notice of appeal, so the ingredients for stay were not met
The court reiterated the settled three-fold ingredients for stay, noting execution is lawful and substantial loss must be shown by tangible and cogent evidence beyond mere allegation. The applicant relied only on uncertified photographs and deposed to threats by armed persons without proof of investments. Further, there was no evidence of a filed notice of appeal, so the nugatory-appeal test could not be satisfied.
Whether the court retained discretion to grant or refuse a stay and the evidentiary threshold for exercising it
Grant or refusal of stay is discretionary, but the discretion is exercised only on demonstrable, cogent evidence; the successful party's right to enjoy the fruits of judgment prevails absent such proof
Relying on RWW v EKW and Samvir Trustee Limited v Guardian Bank Limited, the court held that the rights of the successful party in enjoying the fruits of judgment should not be impeded without basis. Allegations of armed invasion and destruction of maize were unsupported by substantiated evidence and thus could not justify fettering execution.
Legal principles established
#- Execution is a lawful process and does not per se amount to substantial loss; an applicant must establish other factors showing execution will irreparably negate the essential core of the applicant as a successful party in the appeal
- A party seeking stay must demonstrate through tangible and cogent evidence how the substratum of the appeal will dissipate without stay; mere allegation of irreparable damage is insufficient, and the rights of the successful party to enjoy the fruits of judgment should not be impeded without basis
Court orders
#- 1.The application dated 17/6/2025 seeking stay of execution is dismissed
- 2.Costs of the application awarded to the respondents
- Jurisdiction invoked
- Order 42 of the Civil Procedure Rules (stay of execution pending appeal)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kahungu v Wanyonyi & 2 others (Environment and Land Case E004 of 2023) [2025] KEELC 6909 (KLR)", Case Analysis (2025). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/6909/eng@2025-10-13
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.