Omido v Wandera (Environment and Land Appeal E003 of 2025) [2025] KEELC 8148 (KLR)

2025, the trial magistrate awarded the land parcel NO Bukhgayo/Bugengi/5159 (the suit land) to the Respondent. That the said judgment is littered with irregularities and she has filed an appeal. That she has a crop of cassava on the suit land through which an access road passes to her home. The Respondent is likely to execute the decree anytime and close the access road. That her appeal has reasonable chances of success and will be rendered nugatory if the decree is executed. 3. Annexed to the Motion are the following documents: 1. Proceedings in Busia ELC CASE NO E031 of 2023. 2. Memorandum of Appeal dated 4th February 2025. 3. Photograph of a crop of cassava and trees. I should add at this point that the proceedings did not include a copy of the impugned judgement. 4. The Motion is opposed and in the replying afidavit dated 24th April 2025, the Respondent has deposed, inter alia, that the Motion is an abuse of this Court’s process and brought in bad faith. That the appeal has no chances of success and the applicant has never used the suit land and neither is there an access road thereon. That the Applicant will not sufier any irreparable harm and has not even made any undertaking for security. The Applicant obtained the suit land through transmission after secretly and unprocedurally removing the caution thereon and has not demonstrated what irreparable loss she will sufier. The Motion should be dismissed. 5. The Court directed that the motion be canvassed by way of written submissions. The same were filed both by Mr Ouma instructed by the firm of B. M. Ouma & Company Advocates for the Applicant and by Mr Otienoinstructed by the firm of Masiga, Otieno & Associates Advocatesfor the Respondent. 6. I have considered the Motion, the rival afidavits and the submissions by counsel. 7. Order 42 Rule 6(2) of Civil Procedure Rules provides for the circumstances when an order for stay of execution may be granted. It provides: (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.” The judgment being appealed was delivered on 13th February 2025 and this Motion was filed on 20th March 2025 just about a month later. I do not consider that delay to be unreasonable in the circumstances. 8. Substantial loss, as was held in the case of Kenya Shell-V- Kibiru & Another1986 KLR 410, as per PLATT Ag. JA (as he then was): “ ... is the cornerstone of both jurisdiction for granting a stay. Therefore, without this evidence, it is dificult to see why the Respondents should be kept out of their money.” In the same case, GachuhiAg JA (as he then was) added thus: “ It is not suficient by merely stating that the sum of Kshs.20,380.00 is a lot of money and the applicant would sufier loss if the money is paid. What sort of loss https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/8148/eng@2025-11-25 2

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would this be? In an application of this nature, the applicant should show the damages it would sufier if the order of stay is not granted. By granting a stay would mean that status quo should remain as it were before judgment. What assurance can there be of appeal succeeding? On the other hand, granting the stay would be denying a successful litigant of the fruits of his judgment. The applicant has not given to Court suficient materials to enable it to exercise its discretion in granting the order of stay.” In Machirat/a Machira & Company Advocates-V- East African Standard2002 KEHC 1167 KLR, KulobaJ addressed the issue of substantial loss as follows: “ If the applicant cites, as a ground, substantial loss, the kind of loss likely to be sustained mut be specified, details or particulars thereof must be given, and the conscience of the Court, looking at what will happen unless a suspension of stay is ordered, must be satisfied that such loss will really ensue and that if it comes to pass, the applicant is likely to sufier substantial injury by letting the other party proceed further with what may still be remaining to be done or in execution of an awarded decree or order, before disposal of the applicant’s business (e.g. appeal or intended appeal).” 9. What then has the Applicant put forward as the substantial loss she is likely to sufier or to render the appeal nugatory should the motion be declined? In paragraphs 5 and 6 of his supporting afidavit, he has deposed thus: 5: “That I have grown up cassava plantation on the suit land and is likely to be attacked by the Respondent. Attached hereto and marked RAO-2 is a copy of the photographs or cassava plantation.” 6: “That I also have a road of access to my home through L.R Bukhayo/Bugengi/5159 which is likely to be closed by the Respondent.” The acreage or value of the cassava which the Applicant fears is likely to be destroyed has not been provided. It has also not been suggested that the Respondent is so impecunious as to be unable to compensate him for the loss of the cassava should the appeal succeed. Further, I have looked at the photographs annexed to the Motion and while they depict a crop of cassava, I did not see any house or a road of access leading to the house and which the Applicant fears the Respondent will close. That can only confirm that infact there is no such road of access on the suit land. Indeed, in paragraph 7 of the replying afidavit, the Respondent has averred thus: 7: "That the Applicant has never used the land and there is no access road on the suit land and therefore there is no loss likely to be occasioned on the part of the applicant.” That averment was not rebutted by any supplementary afidavit and so this Court must accept it as true as even the photographs availed by the Applicant support the Respondent’s case rather than the Applicant’s case. 10. The up-shot of all the above is that having considered the Notice of Motion dated 20th March 2025, I find that it is devoid of merit. It is accordingly dismissed with costs. BOAZ N. OLAO JUDGE https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/8148/eng@2025-11-25 3

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25TH NOVEMBER 2025 RULING DATED, SIGNED AND DELIVERED BY WAY OF ELECTRONIC MAIL ON THIS 25TH DAY OF NOVEMBER 2025 WITH NOTICE TO THE PARTIES. BOAZ N. OLAO JUDGE 25TH NOVEMBER 2025 https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/8148/eng@2025-11-25 4

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