Omido v Wandera (Environment and Land Appeal E003 of 2025) [2025] KEELC 8148 (KLR)
The bottom line
#A Busia court refused to pause execution of a land judgment because the applicant could not show, with specifics, what loss she would actually suffer.
What this practically means
#Executive summary
#Key legal issues
#Whether the Applicant established substantial loss to warrant a stay of execution
No substantial loss was demonstrated. No acreage or value of the cassava crop was given, no impecuniosity of the Respondent was suggested, and the photographs did not show any house or access road as alleged; the unrebutted deposition that there is no access road on the suit land had to be accepted.
The court applied Order 42 Rule 6(2) and the Kenya Shell v Kibiru and Machira cases requiring the applicant to prove substantial loss. The Applicant alleged a cassava crop and an access road likely to be closed by the Respondent, but gave no details of value or acreage, and her own photographs showed cassava only, with no house or road, thus supporting the Respondent's averment that she never used the land.
Whether the application was filed without unreasonable delay
The delay was not unreasonable. Judgment was delivered on 13th February 2025 and the Motion filed on 20th March 2025, about a month later.
Order 42 Rule 6(2) requires the application to be made without unreasonable delay. The court compared the delivery date of the judgment being appealed (13th February 2025) with the filing date of the Motion (20th March 2025) and held the roughly one-month interval was not unreasonable in the circumstances.
Legal principles established
#- Substantial loss is the cornerstone of the jurisdiction to grant a stay of execution under Order 42 Rule 6
- An applicant for stay must specify and particularise the substantial loss likely to be sustained
- Uncontroverted averments in a replying affidavit must be accepted as true
Court orders
#- 1.The Notice of Motion dated 20th March 2025 is dismissed with costs
- On appeal from
- Principal Magistrate's Court, Busia
- Busia ELC CASE NO E031 of 2023
- Jurisdiction invoked
- Sections 1A, 1B and 3A of the Civil Procedure Act and Order 42 Rule 6 of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Omido v Wandera (Environment and Land Appeal E003 of 2025) [2025] KEELC 8148 (KLR)", Case Analysis (2025). Busia MISC E31 of 2023 (Notice of Motion dated 20th March 2025). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/8148/eng@2025-11-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.