Onyango v Makanyanga & another (Environment and Land Case 178 of 2016) [2025] KEELC 7755 (KLR)

4. The respondent also filed a further afidavit in which he stated that the applicant had sold part of the suit property to a 3rd party and was only keen to continue enjoying profits from the suit property. 5. Parties filed submissions in support of their positions. On record are submissions filed by the applicant and respondent both dated 31st October 2025; both of which the court has duly considered. Analysis and determination. 6. The court has carefully considered the application, response thereto and parties’ rival submissions. The sole issue for the court’s determination is whether the applicant has met the threshold for grant of orders of stay of execution pending appeal. 7. Order 42 Rule 6 of the Civil Procedure Rules provides for the jurisdiction of the court to grant orders of stay of execution pending appeal as follows; Stay in case of appeal [Order 42, rule 6] (1) No appeal or second appeal shall operate as a stay of execution or proceedings under a decree or order appealed from except in so far as the court appealed from may order but, the court appealed from may for suficient cause order stay of execution of such decree or order, and whether the application for such stay shall have been granted or refused by the court appealed from, the court to which such appeal is preferred shall be at liberty, on application being made, to consider such application and to make such order thereon as may to it seem just, and any person aggrieved by an order of stay made by the court from whose decision the appeal is preferred may apply to the appellate court to have such order set aside. (2) No order for stay of execution shall be made under subrule (1) unless— (a) the court is satisfied that substantial loss may result to the applicant unless the order is made and that the application has been made without unreasonable delay; and (b) such security as the court orders for the due performance of such decree or order as may ultimately be binding on him has been given by the applicant. 8. Essentially, imminent execution cannot alone cannot form the basis for grant of stay of execution pending appeal, as execution is a lawful process pursuant to grant of an order, judgment or decree by a court. Hence, to succeed in seeking stay pending appeal, an applicant must show imminent substantial loss; that they have sought stay without unreasonable delay and that they are willing to provide security for the due performance of the decree that may issue against them. 9. In the case of James Wangalwa & Another vs. Agnes Naliaka Cheseto [2012] eKLR, the court stated as follows: “ No doubt, in law, the fact that the process of execution has been put in motion, or is likely to be put in motion, by itself, does not amount to substantial loss. Even when execution has been levied and completed, that is to say, the attached properties have been sold, as is the case here, does not in itself amount to substantial loss under Order 42 Rule 6 of the CPR. This is so because execution is a lawful process. The applicant must establish other factors which show that the execution will create a state of afiairs that will irreparably afiect or negate the very essential core of the applicant as the successful party in the appeal … the issue of substantial loss is the cornerstone of both jurisdictions. Substantial loss is what has https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/7755/eng@2025-11-03 2

page 2 of 3

to be prevented by preserving the status quo Because such loss would render the appeal nugatory.” 10. Regarding substantial loss, the court discussed the element of substantial loss in the case of Tropical Commodities Suppliers Ltd & Others vs. International Credit Bank Ltd (in liquidation) [2004] 2 EA 331 as follows; “ Substantial loss does not represent any particular mathematical formula. Rather, it is a qualitative concept. It refers to any loss, great or small, that is of real worth or value as distinguished from a loss without value or a loss that is merely nominal.” 11. In the instant matter, the applicant stated that if stay is not granted, he will sufier substantial loss as he will be evicted from the suit property. This court in its judgment stated that the applicant herein should be evicted. All that he is saying is that execution will cause him substantial loss. That loss has neither been expounded nor demonstrated. In addition, the judgment was delivered on 27th March 2025 granting the applicant 120 days to vacate. He failed to comply or seek stay within the said period. The excuse that the judgment was unavailable till June 2025 is not plausible as Judgment herein was posted on the CTS on 28th March 2025 at 1550 Hours. Therefore, the delay in seeking stay is inordinate with no plausible explanation. 12. In the premises, I find no merit in the application dated 21st August 2025, which I hereby dismiss with costs to the respondents. 13. It is so ordered DATED, SIGNED AND DELIVERED AT KAKAMEGA IN OPEN COURT/VIRTUALLY THROUGH MICROSOFT TEAMS VIDEO CONFERENCING PLATFORM THIS 3RD DAY OF NOVEMBER, 2025 A. NYUKURI JUDGE In the presence of; Ms Adeya holding brief for Mr. Amasakha for the 2nd defendant 1st defendant present Mr. Mutai holding brief for Mr. Oduor for the plaintifi Court Assistant: Delphine https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/7755/eng@2025-11-03 3

page 3 of 3