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ELCAllowedNot stated in the judgment (application filed in the appeal against judgment of 24th April 2025)

Wabuyabo v Ali & 2 others (Environment and Land Appeal E031 of 2025) [2026] KEELC 300 (KLR)

Environment and Land Court
28 January 2026
1,172 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~5 min to read original · ~4 min brief

The bottom line

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A Kakamega court paused eviction from family land pending appeal, confirming Kenyan courts protect long-term occupants who act fast.

What this practically means

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Executive summary

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The applicant, appellant in an appeal against a judgment of the lower court delivered on 24th April 2025 in Mumias ELC Case No. E131 of 2022, moved the court by notice of motion dated 30th April 2025 seeking stay of execution of that judgment pending the appeal. He argued that he was condemned unheard, lacked capacity to be sued since the suit property was registered in the name of his late father, Nicholas Wabuyabo, that the parcel did not exist on the ground per a survey report, that he was not served with a fresh hearing notice after the plaint was amended, and that he had occupied and developed the land for decades in trust for his family and would be evicted and suffer substantial loss if execution proceeded. Ali Abdalla Ali, the 1st respondent, opposed, asserting the applicant's occupation rested on an illegally subdivided and impeached title, that no substantial loss or development was shown, and that the Order 42 Rule 6 threshold was unmet. The court framed a single issue: whether the applicant met the threshold for stay of execution pending appeal. Applying Order 42 Rule 6 and the qualitative test of substantial loss in Tropical Commodities Suppliers Ltd v International Credit Bank Ltd, the court found the applicant occupied the suit property, that capacity issues raised triable matters, that the application was filed six days after judgment and thus without delay, and allowed the application. Stay of execution was granted pending the appeal, with costs of the application in the cause.

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 demonstrated substantial loss

Holding

The court found substantial loss demonstrated because the applicant had been in occupation of the suit property and faced eviction if execution proceeded.

Reasoning

The court reviewed the judgment and amended plaint, noting the appellant occupied the suit property which the trial court ordered him to vacate, and that the registered proprietor was the applicant's deceased father. Issues of capacity to be sued raised triable issues. Continued occupation for some time grounded a finding of real, qualitative loss if eviction proceeded before the appeal was heard.

p. 3
02

Whether the application was made without unreasonable delay

Holding

The application, filed six days after delivery of judgment, was made timeously and without delay.

Reasoning

The court measured the delay between the judgment of 24th April 2025 and the notice of motion dated 30th April 2025, finding only six days had elapsed, which satisfied the timeliness requirement under Order 42 Rule 6(2)(a).

p. 3

Legal principles established

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  • To succeed in seeking stay of execution pending appeal, an applicant must demonstrate imminent substantial loss, that the application was made without unreasonable delay, and willingness to provide security for the due performance of the decree.
  • Substantial loss is a qualitative, not mathematical, concept.

Court orders

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  1. 1.Stay of execution of judgment of the lower court delivered on 24th April 2025 in Mumias ELC Case No. E131 of 2022, pending hearing and determination of the appeal
  2. 2.Costs of the application to be in the cause

The bench

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

majority

Wrote the judgment

On appeal from
Lower court (Mumias)
Mumias ELC Case No. E131 of 2022
Jurisdiction invoked
Order 42 Rule 6 of the Civil Procedure Rules

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.

I therefore grant orders of stay of execution of judgment of the lower court delivered on 24th April 2025 in Mumias ELC Case No. E131 of 2022, pending hearing and determination of this appeal.
p. 3Final orders - stay of execution granted
Substantial loss does not represent any particular mathematical formula. Rather, it is a qualitative concept.
p. 2Meaning of substantial loss
the applicant filed the application herein six days after delivery of judgment and therefore approached court timeously and without delay.
p. 3No unreasonable delay

Issues in the judgment

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minor

The judgment refers to the applicant as both male ('he') and female ('she') without explanation.

minor

The case number of the appeal in which this application is brought is not stated in the judgment.

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, "Wabuyabo v Ali & 2 others (Environment and Land Appeal E031 of 2025) [2026] KEELC 300 (KLR)", Case Analysis (2026). Not stated in the judgment (application filed in the appeal against judgment of 24th April 2025). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/300/eng@2026-01-28

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