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ELCDismissedNot stated on the face of the judgment (appeal from Mumias Senior Principal Magistrate's Court ELC No. E070 of 2024)· [2026] KEELC 5116 (KLR)

Shikanda v Were (Environment and Land Appeal E033 of 2026) [2026] KEELC 5116 (KLR)

High Court of Kenya
30 July 2026
ANA. Nyukuri
1,601 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The High Court in Kakamega dismissed a landowner's bid to pause his eviction, holding that facing eviction is not itself a good reason for a stay.

What this practically means

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Executive summary

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This is a ruling on a Notice of Motion dated 8th May 2026 in which the appellant, in an appeal from Mumias Senior Principal Magistrate's Court ELC No. E070 of 2024, sought stay of execution of the judgment and decree of 10th April 2026 pending appeal. The trial court had allowed the respondent's cross-originating summons, granting a permanent injunction over LR No. North/Wanga/Mayoni/1611, eviction of the appellant, mesne profits of Kshs. 300,000 and costs. The appellant argued that he had lived on the land for some sixty years, farmed it for his livelihood, and that eviction would render the appeal nugatory. The respondent countered that the appellant's adverse possession claim had been struck out for want of jurisdiction on 27th February 2025 and never appealed, and that no substantial loss or arguable appeal was shown. The court framed a sole issue: whether the appellant satisfied the Order 42 Rule 6 conditions for stay. Applying Butt v Rent Restriction Tribunal, Kenya Shell v Kibiru, Vishram Ravji Halai, James Wangalwa v Cheseto and Tropical Commodities Suppliers, the court held that imminent execution or eviction is not substantial loss, that inability to pay the decretal sum is no basis for stay, and that the appellant had not shown an arguable appeal. The application was dismissed with costs to the respondent on 30th July 2026 at Kakamega.

Key legal issues

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01

Whether the appellant satisfied the Order 42 Rule 6 conditions for stay of execution pending appeal

Holding

The application failed: the appellant did not demonstrate substantial loss, promptness, security, or an arguable appeal; his adverse possession claim had been struck out for want of jurisdiction and never appealed, and he did not contest the respondent's cross-originating summons.

Reasoning

The court applied the settled tripartite test under Order 42 Rule 6: substantial loss, no unreasonable delay, and security. The applicant relied only on 60 years' residence and imminent eviction, which the court held are not proof of substantial loss since eviction was what the trial court ordered. The striking out of his adverse possession claim, left unappealed, undermined any arguable appeal.

p. 9

Legal principles established

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  • Imminent execution or eviction alone does not constitute substantial loss justifying stay of execution pending appeal.
  • Inability to pay the decretal sum is not a basis for granting stay.
  • Substantial loss is a qualitative, not mathematical, concept.

Court orders

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  1. 1.The application dated 8th May 2026 is dismissed
  2. 2.Costs of the application awarded to the respondent
On appeal from
Mumias Senior Principal Magistrate's Court
ELC No. E070 of 2024
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, "Shikanda v Were (Environment and Land Appeal E033 of 2026) [2026] KEELC 5116 (KLR)", Case Analysis (2026). Not stated on the face of the judgment (appeal from Mumias Senior Principal Magistrate's Court ELC No. E070 of 2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5116/eng@2026-07-30

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