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MagistrateAllowedELC NO. E024 OF 2025· [2026] KEMC 974 (KLR)

Joseph Maroa Maswi v Magabe Mwita Wambura & 15 Others

Senior Principal Magistrate's Court at Kehancha
30 September 2026
JNJ.P. Nandi
2,284 words in judgment
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The bottom line

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A Kehancha court paused eviction of 15 defendants pending appeal, but only if each deposits Kshs. 50,000 within 30 days.

What this practically means

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Executive summary

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This ruling by the Senior Principal Magistrate's Court at Kehancha determined the defendants' notice of motion dated 14th August 2026 seeking stay of execution of the court's judgment of 31st July 2026, which had ordered them to vacate 17.93Ha out of parcel NYABASI/BOMERANI/448, hand over vacant possession, and restrained them by permanent injunction, pending their appeal to the High Court at Migori. The application was supported by the affidavit of Nyambari Mwita and opposed by the plaintiff, who argued the applicants were adjudged trespassers and that the deponent lacked authority to swear for all fifteen defendants. The court framed the three Order 42 Rule 6 conditions: substantial loss, absence of unreasonable delay, and security. On substantial loss, the court held that applicants must prove, not merely allege, loss; finding no evidence of the nature and extent of the alleged harm, and noting that execution is a lawful process that does not itself constitute substantial loss, it held the applicants had not demonstrated loss, particularly as they had been found trespassers. On delay, the application was filed within days of judgment and was timely. On security, relying on Focin Motorcycle, the court accepted the applicants' offer as a mark of good faith. Notwithstanding its finding on substantial loss, the court granted a conditional stay pending ELC Land Appeal No. E023 of 2026, on condition that each applicant deposits Kshs. 50,000/= in a joint interest-earning account within 30 days, failing which the stay lapses automatically. No express costs order was made.

Key legal issues

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01

Substantial loss

Holding

The applicants failed to demonstrate substantial loss by evidence; they merely left it to the court's speculation, and the superior court had already found them trespassers.

Reasoning

The court set out the Order 42 Rule 6 conditions and authorities requiring proof of real, qualitative loss. The applicants' affidavit and submissions asserted irreparable harm without disclosing its nature or extent. Since the applicants were adjudged trespassers, the court held they had nothing to lose as the suit land belongs to the plaintiff.

p. 8
02

Delay

Holding

The application was filed without undue delay.

Reasoning

The judgment was delivered on 31st July 2026 and the application filed shortly thereafter in August 2026, which the court found to be without undue delay.

p. 8
03

Security

Holding

An offer to abide by security orders satisfies the security condition; the court granted a conditional stay requiring each applicant to deposit Kshs. 50,000/=.

Reasoning

Relying on Focin Motorcycle Co. Limited v Ann Wambui Wangui, the court held that proposing security is a mark of good faith and it is the court's discretion to determine the security. The applicants' willingness to provide security satisfied the ground, justifying a conditional stay.

p. 9

Legal principles established

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  • Execution on its own does not amount to substantial loss because it is a lawful process.
  • An applicant for stay must prove, not merely allege, substantial loss.
  • Submissions should support pleadings and never replace them.

Court orders

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  1. 1.Stay of execution of the judgment delivered on 31st July, 2026 granted pending hearing and determination of ELC Land Appeal No. ELC E023 OF 2026
  2. 2.Conditional on each applicant depositing Kshs. 50,000/= in a joint interest earning account within 30 days from the date of the ruling
  3. 3.In default of the deposit, the stay order automatically lapses
Jurisdiction invoked
Order 42 Rule 6 of the Civil Procedure Rules

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, "Joseph Maroa Maswi v Magabe Mwita Wambura & 15 Others", Case Analysis (2026). ELC NO. E024 OF 2025. Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/974/eng@2026-09-30

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