Muna & 5 others v Boscardin & 3 others (Environment and Land Case 27 of 2020) [2026] KEELC 3522 (KLR)
The bottom line
#The Kitale Environment and Land Court dismissed a bid to pause execution of a land judgment because the applicants offered no solid proof of loss, security, or urgency.
What this practically means
#Executive summary
#Key legal issues
#Whether substantial loss was demonstrated for a stay of execution
The applicants failed: no particulars, valuation, crop damage or forester's report, and the photographs did not comply with Section 106B of the Evidence Act.
The court held that an applicant must lay tangible, cogent, empirical and scientific evidence of developments threatened with destruction. The supporting affidavit was bare; the photographs attached did not comply with the Evidence Act; no valuation report or crop damage assessment was offered; and the claim that defendants only entered the land after judgment was contradicted by the Deputy Registrar's site visit report confirming occupation before judgment.
Whether the application was filed without unreasonable delay
The application was lodged only near the expiry of the 45-day window and no reasons for the delay were given.
Although temporary stay orders had been granted for 45 days pending filing of a formal application, the plaintiffs waited until almost the expiry of that period. Delay must be explained but was not, and the respondents demonstrated the prejudice of further delay in the realisation of the fruits of their judgment.
Whether the requirement of security was satisfied
The condition was unsatisfied; the applicants, whose invalidated titles were held in one plaintiff's name, disingenuously argued that security did not arise because no monetary decree was awarded.
Security for due performance of the decree is broad and not confined to monetary decrees; it may include security for costs under Order 26. The applicants should in good faith have offered to deposit the impugned titles as a condition precedent. The court found the condition unsatisfied.
Whether a temporary injunction pending appeal was warranted
The applicants failed to establish a prima facie case, irreparable loss or the balance of convenience.
Applying the Giella, Mrao and Nguruman principles, the court noted that any loss was compensable: if the appeal succeeded there was the option of eviction, register entries were reversible, and loss of use could be quantified as mesne profits. The balance of convenience was not substantiated; hence the injunction pending appeal failed.
Legal principles established
#- Substantial loss is the cornerstone of an application for stay and must be substantiated with tangible and cogent evidence; mere allegation of imminent execution or occupation of land is insufficient.
- Execution per se is a lawful process and does not amount to substantial loss.
- The three conditions for stay under Order 42 Rule 6(2) are cumulative and must all be satisfied, including the offer of security, which is not confined to monetary decrees.
- Written submissions cannot amount to evidence or replace pleadings.
Court orders
#- 1.The application dated 7/3/2026 is dismissed with no order as to costs
- Jurisdiction invoked
- Discretionary powers of the trial court over its own judgment pending an intended appeal - Order 42 Rule 6(2) and Order 40 Rule 1 of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Muna & 5 others v Boscardin & 3 others (Environment and Land Case 27 of 2020) [2026] KEELC 3522 (KLR)", Case Analysis (2026). Not stated in the judgment (ELC suit at Kitale; application dated 7/3/2026). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3522/eng@2026-06-10
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.