Aroko & 2 others (Suing as personal representatives and administrators of the Estate of Gonda Elkana Syongoh - Deceased) v Macharia (Enviromental and Land Originating Summons 5 of 2021) [2026] KEELC 2422 (KLR)
The bottom line
#A Kenyan court paused an eviction pending appeal because the defendant kept paying monthly compensation, showing partial compliance doesn't kill stay applications.
What this practically means
#Executive summary
#Key legal issues
#Whether the application was made without unreasonable delay
The application was filed timeously, within approximately one month of the judgment, and the Respondent conceded no delay
The judgment was delivered on 29th May 2025, the notice of appeal filed on 3rd June 2025 and the motion on 30th June 2025. Relying on Jaber Mohsen Ali v Priscillah Boit on what constitutes unreasonable delay, the court found the filing within approximately one month satisfied the timeliness requirement, a position the Respondent also conceded.
Whether the Applicant demonstrated substantial loss
Yes. Eviction would occasion substantial hardship, loss and dislocation to the Applicant and her elderly mother, not compensable by damages, while the Respondent would suffer no irreparable prejudice
Applying Rhoda Mukuma, Century Oil/Kenya Shell and James Wangalwa, the court held that substantial loss goes beyond the ordinary consequences of execution. The suit property has been the Applicant's family home for over a decade and her mother's matrimonial home; eviction would irreversibly alter the status quo, whereas any loss of income to the Respondent is ascertainable and compensable.
Whether partial compliance with the decree (payment of mesne profits) bars the application for stay
No. Payment of mesne profits is a distinct, restitution-capable pecuniary obligation and not execution of the substantive relief of vacant possession
The court distinguished the two obligations: vacant possession irreversibly alters the status quo, while mesne profits are refundable if the appeal succeeds. Following Jaribu Holdings, the decree had not been fully or substantially executed so as to render a stay futile, and the Applicant had not waived her right to seek a stay.
Whether the requirement as to security was met
Yes. The Applicant's continued deposit of Kshs 60,000 monthly into a joint interest-earning account suffices as security
Relying on Arun C Sharma on the purpose of security under Order 42 - to guarantee due performance of the decree, not to punish the judgment debtor - the court accepted the Applicant's good faith in paying mesne profits and her willingness to continue, finding the security requirement satisfied.
Legal principles established
#- Arguability of the intended appeal is not a condition precedent for stay of execution under Order 42 Rule 6; a trial court should not assess the arguability of an appeal arising from its own decision
- Substantial loss is the cornerstone of the jurisdiction to grant a stay; the ordinary consequences of losing a case do not amount to substantial loss
- Payment of mesne profits is compliance with an ancillary monetary component of a decree and does not amount to execution of the substantive relief of vacant possession, nor a waiver of the right to seek a stay
Court orders
#- 1.There be a conditional stay of execution of this court's judgement dated 29th May, 2025 pending the hearing and determination of the appeal before the Court of Appeal
- 2.The stay of execution is granted on condition that the Applicant continues to deposit the monthly sum of Kshs 60,000 on the 5th day of every month in a joint interest-earning account in the names of Counsel for the Applicant and the Respondent; in default, the stay will lapse
- 3.Parties to bear their own costs
- Jurisdiction invoked
- Order 42 Rule 6 of the Civil Procedure Rules; Articles 50 and 159(2)(d) of the Constitution
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Aroko & 2 others (Suing as personal representatives and administrators of the Estate of Gonda Elkana Syongoh - Deceased) v Macharia (Enviromental and Land Originating Summons 5 of 2021) [2026] KEELC 2422 (KLR)", Case Analysis (2026). ELC OS NO. 5 OF 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2422/eng@2026-04-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.