Ogada v Ngesa & another; National Bank of Kenya Limited & another (Interested Parties) (Environment and Land Appeal E097 of 2025) [2025] KEELC 8457 (KLR)

4. Although Counsel for the Respondents informed the court that the Respondents had filed a Replying Afidavit dated 27th November, 2025 in opposition to the application, no such Afidavit is in the physical court file or on the CTS platform as at the date of this ruling. There is no evidence of filing of the same. The application is therefore unopposed. 5. The grounds for grant of orders of stay of execution of decree/judgement are provided for in Order 42 Rule 6(2) of the Civil Procedure Rules 2010 it provides as follows: “ No order for stay of execution may be made under sub rule (1) unlessThe 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 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.” 6. Firstly, the court must be satisfied that the Applicant will sufier substantial loss if the order of stay of execution is not granted. Substantial loss has been described in Dr. Daniel Chebutuk Rotich –vsMorgan Kimaset Chebutuk Nakuru H.C.C.C No.368 of 2001 thus: “ Substantial loss is a relative term and more often than not can be assessed by the totality of the consequences which an Applicant is likely to sufier if stay of execution is not granted and the Applicant is therefore forced to pay the decretal sum.” 7. It was the Applicant’s case herein that the judgement appealed against ordered for his eviction from the suit land among other orders. If the eviction takes place, the Applicant who deposed that he has his home on the suit land will no doubt sufier substantial loss. 8. The Applicant has undertaken to abide by conditions that the court may direct on security. 9. I find that the application has merit and hereby allow it in the following terms: a. An order of stay of execution of the judgement dated 28th October 2025 in KISUMU CMC EL CASE NO. 13 OF 2020 is hereby granted pending determination of the appeal herein on condition that the applicant deposits in court the sum of Kshs 150,000 (Kenya shillings one hundred fifty thousand only) being security for the due performance of such decree or order as may ultimately be binding on applicant within 45 days hereof failing which the order of stay of execution granted herein shall lapse. b. Cost in the appeal. Orders accordingly. RULING READ AND SIGNED AT KISUMU AND DELIVERED VIRTUALLY THIS 4TH DAY OF DECEMBER, 2025. E. ASATI JUDGE. In the presence of: Maureen: Court Assistant. Odhiambo Gwada for the Applicant. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/8457/eng@2025-12-04 2

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Nabifo for the Respondent. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/8457/eng@2025-12-04 3

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