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ELCDismissedNot stated in the judgment copy provided· [2026] KEELC 3257 (KLR)

Amaitsa (Suing as Administrator of the Estate of David Ngómbe Masinde (Deceased) v Masika (Environment and Land Appeal 004 of 2026) [2026] KEELC 3257 (KLR)

High Court of Kenya at Kakamega
25 May 2026
ANA. Nyukuri
736 words in judgment
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The bottom line

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The High Court in Kakamega dismissed a request to pause a money judgment on appeal, confirming that simply being unable to pay is not enough.

What this practically means

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Executive summary

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This is a ruling on a notice of motion dated 28th January 2026 in which the appellant, in an appeal against a trial court decree dated 23rd December 2025, sought a stay of execution of order numbers 3 and 4 of that decree pending the hearing and determination of the appeal, together with costs. The application was supported by her own affidavit, in which she argued that execution would cause her irreparable damage, render the appeal nugatory, deprive her children of the only land they have, and that she could not raise the colossal sums ordered. The trial court had partially favoured her: it nullified a sale agreement and granted an injunction restraining the respondent from interfering with the suit property, while allowing the respondent's counterclaim for refund of the consideration paid. The respondent opposed the application through grounds of opposition, pointing out that the appellant had failed to deposit the security for costs of Kshs. 550,000 ordered on 20th February 2026. Applying Order 42 Rule 6 of the Civil Procedure Rules and the principle from Kenya Power & Lighting Co. Ltd v Kigata Ngare Unduthu and Kenya Shell Limited v Benjamin Karuga Kibiru that substantial loss is the cornerstone of the jurisdiction, the court held that the appellant had not demonstrated substantial loss since the trial court had not ordered her out of the suit property, and that inability to settle the decretal sum could not ground a stay. The application was dismissed with costs.

Key legal issues

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01

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

Holding

The application failed; the appellant did not demonstrate substantial loss, having not been ordered out of the suit property, and inability to pay the decretal sum is not a ground for stay

Reasoning

The court restated the tripartite test in Order 42 Rule 6(2): substantial loss, no unreasonable delay, and security. The trial decree had partially favoured the appellant (injunction preserved) and the orders she challenged merely required refund of consideration. Her children's attachment to the land and her financial inability did not satisfy the substantial-loss threshold, and she had failed to deposit the security earlier ordered.

p. 2

Legal principles established

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  • Substantial loss is the cornerstone of the jurisdiction to grant stay of execution pending appeal
  • An applicant for stay pending appeal must demonstrate substantial loss, that the application was made without unreasonable delay, and willingness to provide security for due performance of the decree
  • Mere inability to pay the decretal sum is not a basis for granting stay

Court orders

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  1. 1.Dismissal of the notice of motion dated 28th January 2026
  2. 2.Costs of the application to the respondent
On appeal from
Not stated (trial court)
null
Jurisdiction invoked
Order 42 Rule 6 of the Civil Procedure Rules (stay of execution pending appeal)

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, "Amaitsa (Suing as Administrator of the Estate of David Ngómbe Masinde (Deceased) v Masika (Environment and Land Appeal 004 of 2026) [2026] KEELC 3257 (KLR)", Case Analysis (2026). Not stated in the judgment copy provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3257/eng@2026-05-25

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