Wauna v Messo (Environment and Land Appeal E045 of 2024) [2025] KEELC 7661 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Substantial loss
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.
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.
Undue delay
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.
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.
Security for costs
Because the Applicant was not fully honest with the court, stringent security terms were imposed.
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.
Arguability of the appeal
The Respondent's assertion that the appeal has no chance of success does not defeat a stay; an arguable appeal need not necessarily succeed.
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.
Legal principles established
#- 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
#- 1.Stay of execution of the decree pending the hearing and determination of the appeal granted
- 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.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.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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.