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ELCDismissedNot stated in the judgment· [2025] KEELC 7157 (KLR)

Sakwa & 2 others v Attorney General & another (Environment and Land Case 18 of 2021) [2025] KEELC 7157 (KLR)

Environment and Land Court
22 October 2025
1,661 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 Kitale refused to pause execution of a land judgment because the applicants showed no substantial loss and offered no security.

What this practically means

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Executive summary

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The plaintiffs/applicants, through an application dated 8.8.2025, sought stay of execution of a judgment delivered on 4.7.2025 pending a intended appeal. The judgment under challenge had declared the applicants' title to the suit land defeasible, ordered cancellation of entries in the register in their favour, and awarded damages, the land having been found to be public land. The applicants argued they had filed an appeal and notice of appeal without delay, that execution would render the appeal nugatory, that the deponent, a widow, had lived on the land as a matrimonial home for over 23 years and would be left destitute, and that they were ready to furnish security. The 5th respondent opposed, submitting that the Order 42 Rule 6 conditions are conjunctive, that no substantial loss or nugatory-ness was demonstrated, that the orders are reversible, that no security was proposed, and that recovery of public property is a matter of great public interest. The court applied established principles: stay is a discretionary remedy requiring sufficient cause; execution per se is not substantial loss; cogent and tangible evidence is required; and it is for the applicant, as a sign of good faith, to offer security. The court found the applicants had not offered to surrender the title deed, part of the damages, a bond or any undertaking, and had not substantiated the value of their developments by a valuation report. Holding that the register entries are reversible and that public interest in recovery of public land outweighed the applicants' narrow personal interests, the court declined the orders sought. Ruling delivered at Kitale on 22 October 2025 by Hon. C. K. Nzili, Judge, ELC Kitale.

Key legal issues

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01

Whether substantial loss was demonstrated to warrant stay of execution

Holding

The court held that substantial loss was not demonstrated; the entries to the register are reversible and damages would compensate the applicants if the appeal succeeds.

Reasoning

The court reasoned that execution per se is not substantial loss and mere assertions are insufficient; documentary or empirical material must be placed before the court. The 5th respondent showed the orders in the judgment are reversible in nature. The applicants did not offer to surrender the title deed, provide a bond, or substantiate the value of developments by a valuation report. Public interest in recovery of public land outweighed the applicants' narrow personal interests.

p. 4
02

Whether the applicants offered adequate security for the due performance of the decree

Holding

The applicants failed to offer security; they did not surrender the original title deed, offer part of the awarded damages, a bond, or any undertaking.

Reasoning

The court found that it is not for the court to suggest security but for the applicant to offer it as a sign of good faith. The applicants merely alleged willingness to furnish security without proposing its nature or providing evidence of ability to do so, contrary to Order 42 Rule 6(2)(c) of the Civil Procedure Rules.

p. 3

Legal principles established

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  • Substantial loss is the cornerstone of an application for stay of execution; without its demonstration the court will not exercise its discretion in favour of a judgment debtor.
  • Mere execution does not amount to substantial loss; the applicant must show by cogent and tangible evidence how the substratum of the appeal will be affected.
  • It is for the applicant, as a sign of good faith, to offer adequate security; the court will not suggest it.

Court orders

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  1. 1.The application dated 8.8.2025 seeking stay of execution pending appeal is declined and dismissed
Jurisdiction invoked
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, "Sakwa & 2 others v Attorney General & another (Environment and Land Case 18 of 2021) [2025] KEELC 7157 (KLR)", Case Analysis (2025). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/7157/eng@2025-10-22

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