Andrew & 2 others v Kiprop & 3 others (Environment and Land Appeal E003 of 2023) [2026] KEELC 1097 (KLR)
The bottom line
#The Environment and Land Court in Busia dismissed a family land dispute application for stay of execution because the applicants delayed, showed no loss, and offered no security.
What this practically means
#Executive summary
#Key legal issues
#Substantial loss as the cornerstone of a stay application
The Applicants failed to demonstrate what substantial loss they would suffer; the assertion of a risk of transfer to third parties was unconvincing
Applying Kenya Shell Ltd v Kibiru, the court held that substantial loss is the cornerstone of jurisdiction to grant a stay. The 1st Applicant's deposition did not show how the suit land could be transferred when only two parcels were registered in a party's name, and he did not identify which parcels he had occupied for over 50 years. The test was therefore not satisfied.
Unreasonable delay in filing the stay application
The delay of over two months between judgment delivered on 13th March 2025 and the Motion filed on 28th May 2025 was unreasonable and unexplained
The court reasoned that each case must be considered on its particular circumstances, that every delay must be satisfactorily explained, and that a stay curtails the decree holder's enjoyment of the fruits of judgment. The Applicants knew of the judgment when they filed their Notice of Appeal on 26th March 2025, and offered no explanation for the delay. On this basis alone the Motion had to be dismissed.
Whether there is any decree capable of being stayed
The judgment of 13th March 2025 only allowed the appeal with costs; save for costs, no order capable of execution was made, so there was nothing to stay
The court observed that its earlier judgment allowed the appeal but made no positive orders capable of execution. The 1st Respondent had argued the decree was a negative order and the Motion an abuse of process. The court agreed there was no order justifying the remedy of stay, providing an independent ground for dismissal.
Security for the due performance of the decree
The Applicants neither offered security nor expressed willingness to abide by any conditions the court might impose
Relying on Machiri v Mohamed and Vishram Ravji Halai v Thornton & Turpin (1963) Ltd, the court held that furnishing security is a mandatory condition under Order 42 Rule 6(2)(b). The Applicants made no offer of security, and the 1st Respondent's affidavit expressly noted the absence of any offer, so this condition also failed.
Legal principles established
#- An applicant for stay of execution pending appeal must establish sufficient cause, substantial loss, filing without unreasonable delay and the offer of security
- Where a court is considering a stay of its own judgment pending appeal, the arguability of the intended appeal is not a consideration
- The offer of security must come from the applicant himself as a demonstration that the application advances the cause of justice
Court orders
#- 1.The Notice of Motion dated 28th May 2025 is dismissed
- 2.Each party to meet their own costs, as the parties are family
- On appeal from
- Chief Magistrate's Court at Busia (ELC)
- Busia CMC ELC Case No E27 of 2021
- Jurisdiction invoked
- Order 42 Rule 6 of the Civil Procedure Rules; Sections 1A, 1B, 3A and 6 of the Civil Procedure Act; Articles 22, 48, 50 and 159 of the Constitution
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Andrew & 2 others v Kiprop & 3 others (Environment and Land Appeal E003 of 2023) [2026] KEELC 1097 (KLR)", Case Analysis (2026). Busia CMC ELC Case No E27 of 2021 (Appeal); Notice of Motion dated 28th May 2025. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1097/eng@2026-02-26
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.