Naliaka & another v Otula & 4 others (Environment and Land Appeal E085 of 2025) [2026] KEELC 305 (KLR)

2010 and enforcement was made in Misc 48 of 2010 on 25th January 2021. That the applicants were ordered to vacate the suit property and settle on their land parcel No. South Wanga/Bungasi/412. That the applicants have sought to delay the matter by filing many cases including petitions, applications and appeals, which were all dismissed. That they encroached on the suit property in 1988. That in 1969 during demarcation one Stephen Opondo Mulitani, the village Chair, without the consent of the owner one Apollo Ofula, made a joint registration of the suit property to include his late son Augustine Oduor. He confirmed that the parties were relatives. That the applicants will not sufier substantial loss as they have an alternative place to live. 5. In a rejoinder, the applicant filed further afidavit dated 8th January 2026. She stated that the other matters filed were dismissed on technicalities and that it is them who are in occupation of the suit property and so they stand to sufier prejudice if orders sought are not granted. 6. The application was disposed by way of submissions. Parties also made oral submissions in court on 26/01/2026; which the court has duly considered. Analysis and determination. 7. The court has carefully considered the application, response thereto and parties’ rival submissions. The sole issue for the court’s determination is whether the applicants have met the threshold for grant of orders of stay of execution pending appeal. 8. This court has jurisdiction to grant stay of execution pending appeal. 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 thus; Stay in case of appeal [Order 42, rule 6] 9. (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. Therefore, to obtain stay of execution pending appeal, an applicant must demonstrate that they stand to sufier substantial loss; that they have sought stay without unreasonable delay and show willingness to provide security for the due performance of the decree that may issue against them. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/305/eng@2026-01-26 2

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10. In Tropical Commodities Suppliers Ltd & Others vs. International Credit Bank Ltd (in liquidation) [2004] 2 EA 331 the court discussed the element of substantial loss 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 they are in occupation of the suit property since 1969. The respondents denied that allegation and stated that they encroached on the land in 1988. Therefore, the fact that the appellants are in possession of the suit property where they have their homes is not denied. They have maintained that if their homes are demolished, they may not be fully compensated by damages should they succeed on appeal. While the respondents provided search for parcel No. 418, they did not provide a search for parcel No. 412. Besides, the applicants have stated that the demolition of their home will not be adequately compensated. It is not denied that they have homes on the suit property. The possibility of an alternative land will not of itself provide an alternative home and negate the fact that demolition may not be adequately compensated. I therefore find and hold that the appellants have demonstrated substantial loss and an arguable appeal. It is also clear that they moved the court without delay. 12. Ultimately, I find and hold that the application dated 22nd October 2025 is merited and the same is allowed. I hereby grant orders of stay of execution of the ruling and consequential orders issued by Honourable L. Simiyu (SPM) dated 11th September 2025 in Mumias Chief Magistrates Court Misc. Application No. 48 of 2010, pending the hearing and determination of this appeal. Costs shall abide the outcome of the appeal. 13. It is so ordered. DATED, SIGNED AND DELIVERED AT KAKAMEGA IN OPEN COURT/VIRTUALLY THROUGH MICROSOFT TEAMS VIDEO CONFERENCING PLATFORM THIS 26TH DAY OF JANUARY 2026 A. NYUKURI JUDGE In the presence of; Mr. Ndolo for the appellant/applicant Ms Obware for the respondent Court Assistant: Delphine https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/305/eng@2026-01-26 3

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