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ELCAllowedSiaya MCELC No. E039 of 2023 (Appeal)· [2025] KEELC 7661 (KLR)

Wauna v Messo (Environment and Land Appeal E045 of 2024) [2025] KEELC 7661 (KLR)

High Court of Kenya
6 November 2025
1,839 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The High Court in Siaya paused eviction of a family home pending appeal, but imposed strict security after finding the applicant not fully honest.

What this practically means

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Executive summary

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This is a ruling on a Notice of Motion dated 10th April 2025 in which James Awuor Wauna, the Applicant, sought a stay of execution of the judgment and decree of the Magistrates' Court in Siaya MCELC No. E039 of 2023 (Eric Ajuoga Meso v James Awuor Wauna) delivered on 25th October 2024, pending his appeal filed on 29th October 2024. The application was brought under sections 1A, 1B and 3A of the Civil Procedure Act and Order 42 Rule 6 and Order 51 of the Civil Procedure Rules, 2010. The Applicant deponed that he had lived and built a home on the suit property, parcel Gem/Anyiko/558, with his family for 25 years and faced eviction, and offered security. The Respondent opposed, arguing that the magistrate's court lacked jurisdiction over adverse possession, that the appeal had no chance of success, and that the parties had reached a settlement involving an alternative parcel, accusing the Applicant of material non-disclosure and unclean hands. Relying on James Wangalwa v Cheseto, Amal Hauliers, Butt v Rent Tribunal and Abson Motors v Nyongesa, Dena J held that substantial loss is the cornerstone of a stay application; that threatened eviction from a long-occupied family home establishes a high likelihood of substantial loss; that six months' delay was not undue given settlement talks; and that an arguable appeal need not necessarily succeed. Because the Applicant had not been fully honest, the court set stringent terms: a bar on dealing with the parcel, and a deposit of Kshs. 100,000 or a bank guarantee within 30 days. Stay was granted and costs of the application were awarded to the Respondent.

Key legal issues

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01

Substantial loss

Holding

Threatened eviction from the suit property where the Applicant has lived and built a home for 25 years establishes a very high likelihood of substantial loss.

Reasoning

The court noted that a threat of execution is itself not sufficient cause since execution is a lawful process. However, the Applicant deponed that he has occupied the suit property, built a home and lived there with his family since 2000, corroborated by photos and by the Respondent's own reply. Should execution proceed, it would irreparably affect the family, establishing substantial loss.

p. 3
02

Undue delay

Holding

Filing the stay application six months after judgment did not amount to undue delay where the parties were engaged in settlement talks and the delay was unchallenged.

Reasoning

Judgment was delivered on 25 October 2024, the appeal filed on 29 October 2024 and the stay application made on 10 April 2025. The court noted the Respondent did not raise delay as an issue and that the parties were engaging with a view to compromising the appeal; hence no undue delay.

p. 4
03

Security for costs

Holding

Because the Applicant was not fully honest with the court, stringent security terms were imposed.

Reasoning

The Applicant expressed willingness to abide by conditions. However, the court observed non-disclosure regarding settlement negotiations and therefore set stringent terms: an injunction against dealing with the parcel and a deposit of Kshs. 100,000 or a bank guarantee within 30 days.

p. 4
04

Arguability of the appeal

Holding

The Respondent's assertion that the appeal has no chance of success does not defeat a stay; an arguable appeal need not necessarily succeed.

Reasoning

The Respondent deponed that the appeal stood no chance of success since it sought to revive a dismissed adverse-possession counterclaim. The court held it is trite that an arguable appeal need not be one that must necessarily succeed, so this objection could not bar the stay.

p. 4

Legal principles established

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  • Substantial loss is the cornerstone of an application for stay of execution pending appeal; execution being a lawful process does not by itself amount to substantial loss.
  • The purpose of a stay of execution pending appeal is to preserve the subject matter so the appeal is not rendered nugatory, while balancing the successful litigant's right to the fruits of judgment.

Court orders

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  1. 1.Stay of execution of the decree pending the hearing and determination of the appeal granted
  2. 2.The Applicant is debarred from selling, transferring or dealing with parcel East Gem/Anyiko/558 in a manner that will defeat justice, by himself or by proxy, pending the appeal
  3. 3.The Applicant shall deposit Kshs. 100,000 in a joint interest-earning account of the law firms on record, or provide a bank guarantee of equivalent amount, within 30 days of the ruling
  4. 4.Costs of the application awarded to the Respondent
On appeal from
Magistrates' Court (Siaya)
Siaya MCELC No. E039 of 2023
Jurisdiction invoked
Sections 1A, 1B and 3A of the Civil Procedure Act; Order 42 Rule 6 and Order 51 of the Civil Procedure Rules, 2010

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, "Wauna v Messo (Environment and Land Appeal E045 of 2024) [2025] KEELC 7661 (KLR)", Case Analysis (2025). Siaya MCELC No. E039 of 2023 (Appeal). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/7661/eng@2025-11-06

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