Shibwabo v Robert (Sued as the Administrator and Legal Representative Of The Estate Of Rehema Musitoke Ali - Deceased) (Environment and Land Appeal 068 of 2025) [2025] KEELC 7777 (KLR)

the respondent’s counterclaim which sought eviction, which was irregular, unprocedural and unlawful as a counterclaim ought to have been made in the usual manner. That she has a right to be heard and has no other home apart from the suit property and if stay is not granted, she will be rendered homeless. That if eviction proceeds, the appeal will be rendered nugatory. She attached the order dated 30th July 2025. 4. The application was opposed. The respondent filed a replying afidavit dated 12th August 2025. He stated that the respondent filed a counterclaim to the appellant’s suit in the lower court seeking eviction against the appellant who is a trespasser where she has been illegally collecting rent from tenants in the sum of over Kshs. 3, 000, 000/=. 5. That a preliminary objection can be raised any time before judgment is pronounced. That the respondent filed a preliminary objection dated 25th June 2025, contesting the court’s jurisdiction to entertain a claim for adverse possession and that on 29th July 2025 the court dismissed the applicant’s case for want of jurisdiction. That the appellant filed application to transfer the lower court suit on 23rd July 2025 which he failed to serve the respondent and hence failed to demonstrate to the trial court that he had filed such application. 6. That as the trial court had no jurisdiction, it ought to have allowed the counterclaim as prayed in the preliminary objection and the replying afidavit. That the court made an error on the face of the record by not pronouncing itself on the counterclaim hence the application of 30/07/2025 was to correct that error. That it is illegal and unscrupulous for this court to exercise its powers under section 18 of the Civil Procedure Act by transferring a suit filed in a court lacking jurisdiction as that will amount to sanctifying an incompetent suit. Analysis and Determination 7. The court has carefully considered the application together with the response. Parties herein deviated from the only issue for determination at this stage that of whether the threshold for grant of stay of execution had been met. They went into the merits of the appeal and the respondent went further, arguing that if this court allows Kakamega ELC Miscellaneous Application No. 52 of 2018 seeking to transfer the dispute from the lower court to this court, that order would be illegal, unscrupulous, and amount to “muddling waters, and creating the reign of confusion”. That notwithstanding, this court will not address the merits of the appeal and other matters that have nothing to do with the instant application at this stage, so as not to embarrass the hearing of the appeal. What is before court today and which the court will address is the issue of whether the appellant has met the threshold for grant of orders of stay of execution pending appeal. 8. Order 42 Rule 6 of the Civil Procedure Rules provides for the jurisdiction and discretion 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. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/7777/eng@2025-11-05 2

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(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. 9. It is trite that for an applicant to succeed in seeking stay pending appeal, they must demonstrate that they stand to sufier substantial loss if stay is not granted; that stay was sought without unreasonable delay and show willingness to provide security for the due performance of the decree that may issue against them. 10. In the cases of Kenya Power & Lighting Co. Ltd v Kigata Ngare Unduthu & 36 Others [2020] eKLR and Kenya Shell Limited v Benjamin Karuga Kibiru & Anothr [1986] KLR the court held that substantial loss is the corner stone of the jurisdiction to grant stay pending appeal. 11. In the instant matter, it is not contested that the application dated 30/07/2025 was heard on the same day it was presented in court and the trial court did not order service of that application on the appellant before granting the orders appealed against. The orders issued were eviction orders. The appellant has deponed that she is being evicted from the only home she has with her family. From the history of this matter, it is clear that the appellant has an arguable appeal, because she has raised the issue of being ordered evicted without being accorded an opportunity of being heard. As the appellant stated that she will be rendered homeless with her children, if evicted without due process, I am therefore convinced that the appellant stands to sufier substantial loss if stay is not granted in these circumstances. 12. In the premises, I find and hold that the application dated 4th August 2025 is merited and the same is hereby allowed. An order of stay of execution is hereby issued staying execution of the orders issued on 30th July 2025 in Kakamega CM L&E No. 494 of 2018 (OS) pending the hearing and determination of this appeal. The costs of this application shall be borne by the respondent. 13. It is so ordered. DATED, SIGNED AND DELIVERED AT KAKAMEGA IN OPEN COURT/VIRTUALLY THROUGH MICROSOFT TEAMS VIDEO CONFERENCING PLATFORM THIS 5TH DAY OF NOVEMBER, 2025. ...................................... A. NYUKURI JUDGE In the presence of; Mr. Akwala for the Appellant Mr. Shaka holding brief for Mr. Mukavale for the Respondent Court Assistant: Delphine https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/7777/eng@2025-11-05 3

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