New Oshwal Distributors Ltd v Moseti & 2 others (Environment and Land Case E001 of 2022) [2026] KEELC 4575 (KLR)
The bottom line
#The Kisii Environment and Land Court paused eviction against a land buyer, but only if the losing party deposits Kshs 13 million within 90 days.
What this practically means
#Executive summary
#Key legal issues
#Delay under Order 42 Rule 6(2)
The filing of the application in the same month as the judgment, though after expiry of the 14 days to vacate, does not amount to inordinate delay.
The court distinguished procedural delay in filing the stay application from breach of the self-executing decree. The application was filed in March, the same month the judgment was delivered, and the delay complained of arose from non-compliance with the 14-day vacation period, which is a matter for contempt proceedings, none of which had been brought.
Substantial loss
Eviction and change of the character of the suit property upon execution constitute substantial loss capable of rendering the appeal nugatory.
Relying on James Wangalwa and Tropical Commodity Suppliers, the court held that change of status quo in relation to the suit property amounts to substantial loss. The applicant faced eviction and possible disposal or change of the suit property, satisfying the cornerstone requirement of substantial loss under Order 42 Rule 6.
Security for due performance
Stay was granted on condition that the Applicant deposits 50% of the purchase price paid by the Respondent, i.e. Kshs 13,000,000, as security.
The court adopted the approach in Samuel Mokaya Momanyi, where the judge ordered a deposit to compensate the plaintiff for opportunity costs during the pendency of the appeal. Since the Respondent paid Kshs 26,000,000 and would be kept from the fruits of his judgment, half of that sum was fixed as security, held in a joint interest account.
Legal principles established
#- Filing a stay application after expiry of a period granted to vacate does not, by itself, constitute the delay envisaged under Order 42 Rule 6(2).
- A party cannot be treated as in contempt absent a contempt application before the court.
Court orders
#- 1.Stay of execution of the judgment and decree of 4th March 2026 granted, conditional on the 1st Defendant/Applicant depositing Kshs 13,000,000 (50% of the purchase price) within 90 days into a joint interest account in the names of both parties' advocates
- 2.If no account is opened within 90 days, the money is to be deposited in court on the 91st day; in default the stay lapses automatically
- 3.Costs of the application to abide the winner in the appeal
- Jurisdiction invoked
- Order 42 Rule 6 and Order 51 Rule 1 of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "New Oshwal Distributors Ltd v Moseti & 2 others (Environment and Land Case E001 of 2022) [2026] KEELC 4575 (KLR)", Case Analysis (2026). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4575/eng@2026-07-09
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.