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ELCDismissedNot stated in judgment· [2026] KEELC 1711 (KLR)

Onyango v Makanyanga & another (Environment and Land Case 178 of 2016) [2026] KEELC 1711 (KLR)

Environment and Land Court
4 March 2026
ANA. Nyukuri
897 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Environment and Land Court in Kakamega refused to pause eviction because the applicant waited three months too long and showed no real harm.

What this practically means

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Executive summary

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The 2nd defendant moved the court by Notice of motion dated 16th October 2025 seeking stay of execution of the judgment delivered on 27th March 2025 pending hearing and determination of Kisumu Court of Appeal Civil Appeal No. E136 of 2025. He swore that he was dissatisfied with the judgment, had filed an appeal with high chances of success, had established a home on the suit property since 1964, and feared imminent eviction after seeing officers of Highland Auctioneers surveying the property. The plaintiff, Boniface Onyango, opposed through a replying affidavit sworn on 28th October 2025, asserting that the applicant was in unlawful occupation, that the application was late since the 120 days' stay granted in the judgment lapsed on 25th July 2025, that no substantial loss was shown, and that the applicant was selling the suit property to strangers. The court framed a sole issue: whether the applicant met the threshold for stay of execution pending appeal under Order 42 Rule 6 of the Civil Procedure Rules. The court held that an applicant must demonstrate imminent substantial loss, absence of unreasonable delay, and willingness to provide security, and that imminent execution alone is insufficient because execution is a lawful process. The application, filed about three months after expiry of the 120-day period to vacate, was found to be brought after inordinate delay and while the applicant was in unlawful occupation. The court declined to revisit its prior determination of the 1964 occupation or to assess the appeal's arguability. The application was dismissed with costs to the respondent on 4th March 2026.

Key legal issues

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

Holding

The applicant failed: the application was brought after inordinate delay (about 3 months after the 120-day vacate period expired) and the applicant was already in unlawful occupation; substantial loss was not demonstrated to the court's satisfaction.

Reasoning

Order 42 Rule 6 requires satisfaction that substantial loss may result, that the application was made without unreasonable delay, and that security has been given. The judgment of 27th March 2025 granted 120 days to vacate, expiring 27th July 2025; the application was filed 16th October 2025. Long occupation since 1964 was a matter already determined in the judgment and could not be revisited. Arguability of the appeal is beyond the trial court's jurisdiction at this stage.

p. 3

Legal principles established

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  • To succeed in an application for stay of execution pending appeal, an applicant must demonstrate imminent substantial loss, absence of unreasonable delay, and willingness to provide security; imminent execution alone is insufficient.
  • Substantial loss is the cornerstone for grant of stay of execution pending appeal.

Court orders

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  1. 1.The Notice of motion dated 16th October 2025 seeking stay of execution pending appeal is dismissed
  2. 2.Costs of the application to the respondent/plaintiff
Jurisdiction invoked
Order 42 Rule 6 of the Civil Procedure Rules

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) [2026] KEELC 1711 (KLR)", Case Analysis (2026). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1711/eng@2026-03-04

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