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ELCDismissedLand Case Appeal E021 of 2025· [2025] KEELC 7283 (KLR)

Shiganga v Muhanji (Land Case Appeal E021 of 2025) [2025] KEELC 7283 (KLR)

Environment and Land Court
23 October 2025
ECE.C Cherono
1,588 words in judgment
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The bottom line

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A Kenyan landowner lost his bid to pause a judgment pending appeal because he never explained what harm he would suffer if execution went ahead.

What this practically means

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Executive summary

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The Applicant, who was the plaintiff before the Principal Magistrate's Court at Webuye, moved the Environment and Land Court at Bungoma by Notice of Motion dated 26th May 2025 seeking stay of execution of the judgment and decree in Webuye PM-ELC No. E001 of 2022 pending appeal, together with injunctions restraining the Respondent from accessing, utilising, developing or interfering with suit land Ndivisi/Muchi/1839. The trial court, in a judgment delivered on 23rd May 2025 by Hon. Viola Yator, Principal Magistrate, had dismissed the Applicant's eviction claim and allowed the Respondent's counterclaim. The Respondent did not respond to the application despite proper service. The court set out the settled principles for temporary injunctions (prima facie case, irreparable loss, balance of convenience) and the Order 42 Rule 6 conditions for stay pending appeal (substantial loss, no unreasonable delay, security, and an arguable appeal rendered nugatory). It found that the Applicant had offered security and had filed within four days of the judgment, which was not unreasonable delay. However, the Applicant failed at the threshold condition: he nowhere alleged or demonstrated substantial loss, which the authorities describe as the cornerstone of the jurisdiction to grant stay. He equally failed to establish irreparable injury, a prima facie case with high chances of success, or that the balance of convenience favoured him. The application was accordingly dismissed with costs to be in the cause. Judgment read, delivered and signed at Bungoma on 23rd October 2025 by Hon. E.C Cherono, ELC Judge.

Key legal issues

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01

Substantial loss as the cornerstone of stay of execution jurisdiction

Holding

The Applicant failed to allege or demonstrate any substantial loss he would suffer absent stay

Reasoning

The court perused the grounds and supporting affidavit and found nowhere the Applicant alleged substantial loss. Citing Kenya Shell Ltd v Benjamin Karuga Kibiru and James Wangalwa v Agnes Naliaka Cheseto, execution is a lawful process and mere motion or completion of execution does not amount to substantial loss.

p. 2
02

Delay in filing the stay application

Holding

Four days between delivery of judgment (23rd May 2025) and filing (27th May 2025) was not unreasonable delay

Reasoning

The court found this limb satisfied, but since the conditions must be established sequentially and substantial loss failed, the application could not succeed on delay alone.

p. 3
03

Offer of security

Holding

The Applicant's undertaking to deposit a bond or bank guarantee demonstrated willingness to give security for due performance of the decree

Reasoning

The Applicant deponed at paragraph 9 of his affidavit that he was ready and willing to furnish security, which the court accepted as demonstrating commitment, but this did not cure failure on substantial loss.

p. 3
04

Principles for temporary injunction

Holding

The Applicant failed all three Giella principles: no prima facie case, no irreparable injury, and no balance of convenience in his favour

Reasoning

The court applied the settled tripartite test for injunctions and found none of the limbs satisfied; damages could compensate the Applicant and no overwhelming chances of success were shown.

p. 4

Legal principles established

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  • A party seeking an order of stay pending appeal must establish the three conditions under Order 42 Rule 6 CPR sequentially, starting with substantial loss
  • An applicant for an injunction must establish a prima facie case with high chances of success, irreparable loss not compensable by damages, and, if in doubt, the balance of convenience

Court orders

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  1. 1.The Notice of Motion dated 26th May 2025 is dismissed
  2. 2.Costs to be in the cause

Authorities

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Legislation

  • Civil Procedure RulesOrder 40 Rule 1(b)
  • Civil Procedure RulesOrder 42 Rule 6
  • Court of Appeal RulesRule 5(2)(b)

Cases cited (4)

  • Kenya Shell Limited v Benjamin Karuga Kibiru & Another
    (1982-1988) KAR
  • James Wangalwa & Another v Agnes Naliaka Cheseto
    (2012) eKLR
  • Silvertein vs Chesoni
    (2002) 1 KLR 867
  • Mukuma v Abuoga
On appeal from
Principal Magistrate's Court, Webuye (ELC)
Webuye PM-ELC No. E001 of 2022
Jurisdiction invoked
Appellate/interlocutory jurisdiction of the Environment and Land Court over an appeal from the Principal Magistrate's Court; application under Order 40 Rule 1(b) and Order 42 Rule 6 CPR

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, "Shiganga v Muhanji (Land Case Appeal E021 of 2025) [2025] KEELC 7283 (KLR)", Case Analysis (2025). Land Case Appeal E021 of 2025. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/7283/eng@2025-10-23

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