Magige & 3 others v Chacha (Enviromental and Land Originating Summons 96 of 2018) [2026] KEELC 862 (KLR)
The bottom line
#Filing an appeal does not stop an eviction in Kenya — you must obtain and prove an actual stay of execution order, or the judgment holder can evict you.
What this practically means
#Executive summary
#Key legal issues
#Whether eviction of the respondents could issue absent a stay of execution of the decree
Yes. No stay of execution had been granted by this court or the Court of Appeal, and an appeal does not operate as an automatic stay, so the applicant was entitled to enjoy the fruits of her judgment.
The decree dated 27th August 2025 directed the respondents to vacate within 30 days and they had not done so. Although they claimed to have filed a stay application in the Court of Appeal, they did not annex it, and the annexed directions could relate to any application. Under Section 107(1) of the Evidence Act they had to prove the existence of the application and the grant of a stay; they did not. The court therefore allowed the eviction application.
Entitlement of a successful party to the fruits of judgment
A successful party is ordinarily entitled to the fruits of the judgment, and the court should not be obsessed with protecting an intending appellant at the expense of the successful party.
The court adopted the decision in Macharia t/a Macharia & Co Advocates v East African Standard, which holds that the ordinary principle is that a successful party is entitled to the fruits of the judgment, and that courts handling stay applications must fix their sight on the overriding objective of doing justice and preventing abuse of court process.
Legal principles established
#- An appeal does not operate as an automatic stay of execution; a decree stands executable unless a stay is ordered
- A party asserting that a stay application exists and a stay has been granted bears the burden of proving those facts
Court orders
#- 1.An order of eviction issued against the Plaintiffs/Respondents, their servants, agents or anyone acting under them, from LR No. Bugumbe/Mabera/211, to be carried out by M/S Ekemwanya Auctioneers with assistance of the OCS Isibania Police Station providing security and assistance in execution
- 2.The eviction to be carried out under strict adherence and compliance with Section 152 C, D, E & G of the Land Act, Cap 280 and the Land Act Regulations (2017)
- 3.The Plaintiffs/Respondents to pay the Auctioneer's charges and all subsequent or incidental costs incurred during the eviction exercise, together with costs incidental to the application
- 4.The costs of the application to be borne by the Respondents
- On appeal from
- null (originating suit decided by this court; respondents have filed an appeal in the Court of Appeal, Kisumu, but this application is not an appeal)
- Jurisdiction invoked
- Sections 1A, 1B & 3A of the Civil Procedure Act, Cap 21; Rule 9 of the Auctioneers Rules 2009; Sections 152C, D & G of the Land Act, Cap 280 and the Land Act Regulations (2017); Articles 10, 21, 22, 28, 40, 43, 47 & 50 of the Constitution of Kenya, 2010
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Magige & 3 others v Chacha (Enviromental and Land Originating Summons 96 of 2018) [2026] KEELC 862 (KLR)", Case Analysis (2026). Not stated in judgment (notice of motion dated 8th November 2025). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/862/eng@2026-02-16
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.