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ELCDismissedNot stated in judgment (ELC application arising from judgment delivered 27th March 2025)

Onyango v Makanyanga & another (Environment and Land Case 178 of 2016) [2025] KEELC 7755 (KLR)

Environment and Land Court
3 November 2025
1,147 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~5 min to read original · ~4 min brief

The bottom line

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The Kakamega Environment and Land Court refused to pause eviction proceedings because the defendant waited too long and never showed real loss.

What this practically means

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Executive summary

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This was a Notice of motion dated 21st August 2025 by the 1st defendant seeking stay of execution of a judgment delivered on 27th March 2025, pending the hearing and determination of Kisumu Court of Appeal Civil Appeal No. E172 of 2025. The applicant argued that his appeal had high chances of success, that he faced eviction from the suit property and would suffer substantial loss, that proceedings and judgment were only ready on 23rd June 2025, and that he was willing to comply with any conditions imposed. The plaintiff, Boniface Onyango, opposed the application, contending that the applicant was in unlawful occupation, that the application was brought late as the applicant had enjoyed a 120-day stay which lapsed on 25th July 2025, and that no substantial loss had been shown; a further affidavit alleged the applicant had sold part of the suit property to a third party. The court identified a sole issue: whether the applicant met the Order 42 Rule 6 threshold for stay pending appeal. Relying on James Wangalwa v Agnes Naliaka Cheseto and Tropical Commodities Suppliers Ltd v International Credit Bank Ltd, the court held that execution is a lawful process and imminent execution alone cannot justify stay. The applicant's asserted loss was not expounded or demonstrated, and the delay was inordinate: judgment had been posted on the CTS on 28th March 2025, yet no stay was sought within the 120-day period. The excuse that judgment was unavailable until June 2025 was rejected as implausible. The application was dismissed with costs to the respondents.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the applicant has met the threshold for grant of orders of stay of execution pending appeal

Key legal issues

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01

Whether the applicant met the Order 42 Rule 6 threshold for stay of execution pending appeal

Holding

The application failed: no substantial loss was demonstrated and the delay in filing was inordinate without plausible explanation.

Reasoning

The court applied the three cumulative conditions in Order 42 Rule 6(2): substantial loss, absence of unreasonable delay, and security. The applicant merely asserted that eviction would cause substantial loss without expounding it. Judgment was delivered on 27th March 2025 with 120 days to vacate, was posted on the CTS on 28th March 2025, yet the application came only on 21st August 2025, after the stay period lapsed. The claim that judgment was unavailable until June 2025 was rejected.

p. 3

Legal principles established

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  • Imminent execution alone cannot form the basis for grant of stay of execution pending appeal; an applicant must show substantial loss, that the application was made without unreasonable delay, and willingness to provide security

Court orders

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  1. 1.The Notice of motion dated 21st August 2025 is dismissed
  2. 2.Costs of the application awarded to the respondents

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

On appeal from
null (this is a first-instance interlocutory application; appeal lies to the Court of Appeal, Kisumu, Civil Appeal No. E172 of 2025)
Jurisdiction invoked
Order 42 Rule 6 of the Civil Procedure Rules

Relief refused

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Stay of execution of the judgment delivered on 27th March 2025 pending hearing and determination of Kisumu Court of Appeal Civil Appeal No. E172 of 2025

Substantial loss was not demonstrated; the application was made with inordinate and unexplained delay after the 120-day stay period lapsed on 25th July 2025; judgment had been posted on the CTS on 28th March 2025

p. 3

Costs

Dismissed with costs to the respondents

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

In the premises, I find no merit in the application dated 21st August 2025, which I hereby dismiss with costs to the respondents.
p. 3Disposition - dismissal of stay application
Therefore, the delay in seeking stay is inordinate with no plausible explanation.
p. 3Unreasonable delay under Order 42 Rule 6(2)(a)
That loss has neither been expounded nor demonstrated.
p. 3Failure to demonstrate substantial loss
Substantial loss does not represent any particular mathematical formula. Rather, it is a qualitative concept.
p. 3Meaning of substantial loss

Issues in the judgment

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minor

Judgment does not state the ELC case number of the suit or the application file number

minor

The judgment is described as granting both 60 days and 120 days stay at different points without reconciling the discrepancy

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, "Onyango v Makanyanga & another (Environment and Land Case 178 of 2016) [2025] KEELC 7755 (KLR)", Case Analysis (2025). Not stated in judgment (ELC application arising from judgment delivered 27th March 2025). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/7755/eng@2025-11-03

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