Guchu & 3 others v Kamau (Suing as the Personal Administrator of Antony Kamau Njuguna) (Environment and Land Appeal E010 of 2023) [2026] KEELC 629 (KLR)

3. In his replying afidavit, the Respondent has not said anything about the Applicants’ occupation of the suit land. 4. I have carefully considered the motion dated 11-3-2025 in its entirety including the afidavits by both sides as well as the record. I find that the motion has no merit for the following reasons. Firstly, the Appellant has not proved that he stands to sufier substantial loss. I am not convinced that the Applicant has a matrimonial house on the suit land. In his pleadings in the lower Court, there was no mention of such a house. During the trial in the lower Court, there was no mention of such a house. Secondly in the current application, there is no photograph of the so called matrimonial house on the suit land or even a single structure. The issue of a matrimonial house is something that has abruptly been raised in the current motion. It was not part of the Applicant’s case from the beginning. Before issuing an order for stay of execution, the Court must be satisfied that the Applicant stands to sufier substantial loss unless the order for stay is allowed and the pending appeal will therefore be rendered nugatory. This is as per Order 42 rule 6(2) of the Civil Procedure Rules which provides as follows. “No order for stay of execution shall be made under subrule(1) unlessa. The Court is satisfied that substantial loss may result to the Applicant unless the order is made and the application has been made without unreasonable delay; and b. Such security as the Court orders for due performance of such decree or order as may ultimately be binding on him has been given by the Applicant. The above three conditions must all exist before an application such as the one sought by the Applicant can be allowed. In this case, the Applicant has not only failed to prove substantial loss but he has also failed to ofier any security for the due performance of the decree. The only condition that he has satisfied is the one of filing the application on time. Since the other two conditions remain unsatisfied his motion cannot be allowed at all. Consequently, I dismiss it with costs to the Respondent. It is so ordered. DATED, SIGNED AND DELIVERED VIRTUALLY AT MURANG’A THIS 11TH DAY OF FEBRUARY, 2026. M.N. GICHERU JUDGE. Delivered online in the presence of; Court Assistant – Mwangi Njonjo Appellant’s Counsel – Absent 1st Respondents Counsel – Mr Wachira https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/629/eng@2026-02-11 2

page 2 of 2