Gakobo & 5 others v Kihara (Environment and Land Appeal E046 of 2025) [2026] KEELC 2084 (KLR)

3. That the costs of this application be provided for. 2. The motion is based on eighteen (18) grounds and is supported by an afidavit sworn by George Gakobo the first appellant dated 20-11-2025. The gist of the grounds and the afidavit is as follows. Firstly, on 24-10-2025 the trial court entered judgment against the appellants. The judgment shocked the mother of the 1st appellant until she got a heart attack from which she died within 10 days of the judgment. Secondly, the trial court made many errors of fact and law as a result of which tea planted on suit land by the appellants’ father was awarded to the respondent. The court also awarded nominal damages of Kshs. 50,000/= to the respondent. For the above state reasons the appellants pray for the orders as above. 3. The motion is opposed by the respondent who has sworn a replying afidavit dated 1-12-2025 in which he replies as follows. Firstly, he is the registered owner of the suit land. The judgment of 24-10-2025 declared the appellants trespassers and restrained them from entering the suit land and harvesting tea thereon. Secondly, the appellants have failed to demonstrate substantial loss if they do not enter the land. Thirdly, the appellants have not ofiered any security for the due performance of the decree should their intended appeal be dismissed. Fourthly, if the appellants are allowed to continue picking tea, it is the respondent to sufier substantial loss because tea is perishable and a wasting asset and the appellants have in the past harvested tea worth millions of shillings without accounting for it. For the above and other reasons, the Respondent prays for the dismissal of the motion. 4. Counsel for the applicants filed written submission’s dated 26-3-2026. The Respondent’s counsel did not file any submissions within the set timelines. 5. I have carefully considered the motion in its entirety including the grounds, the supporting afidavit and the replying afidavit. I find that the appellants have in the written submissions cited the correct order being order 42 and not order 22 cited in the notice of motion together with order 10. Be that as it may, that omission is curable under order 51 rule 10(2) of the Civil Procedure Rules which provides as follows. “ No application shall be defeated on a technicality or for want of form that does not afiect the substance of the application.” Again order 2 rule 14 has a similar import. It states“ No technical objection may be raised to any pleadings on the ground of want of form.” 6. As correctly stated by the counsel for the appellant order 42 rule 6(2) gives three conditions precedent to the grant of an order of stay of execution pending appeal. The conditions are- 7. 1. the applicant must satisfy the Court that he stands to sufier substantial loss, and 2. that the application has been made without unreasonable delay and 3. the applicant has given security for the due performance of such decree or order as may be binding on him. Looking at the first condition, I find that the appellants have not proved that they stand to sufier substantial loss if they do not pluck the tea on the suit land. There is nothing to show that the appellants have homes on the suit land. All the eighteen grounds in the notice of motion are devoted to the errors alleged to have been committed by the learned trial magistrate. There is nothing to show what the https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2084/eng@2026-04-20 2

page 2 of 3

appellants have on the suit land. The supporting afidavit is a replica of the grounds in the motion and the grounds in the memorandum. Nothing distinguishes one from the other two. I do not see how failure to pick tea on the suit land which has been found belong to the respondent will occasion the appellants substantial loss. 8. Regarding the second condition, I am prepared to hold that the appeal and the notice of motion were filed without unreasonable delay although on the borderline of the 30 days spelt out in section 79G of the Civil Procedure Act. 9. Finally on the final condition of security for the due performance of the decree that may finally be binding on the appellants, they have not said that they should lose the appeal, they are ready refund to the respondent all the proceeds that they will have got from the sale of the tea. In the lengthy afidavit, even the amount to be earned from the tea is not stated. The court could still impose a figure but without guidance from the appellants, it would be speculative. Again if the appellants really meant business, they would give a rough estimate of how much it would be per month or per season. 10. Since all the three conditions must exist together for an application for stay of execution to be allowed, I find that failure to prove substantial loss and the other two conditions being borderline, a case has not been made out for the grant of an order of stay of execution pending appeal. 11. In conclusion and for the reasons already given, I find no merit in the motion dated 20-11-2025 which I dismiss. Costs in the cause. DATED, SIGNED AND DELIVERED VIRTUALLY AT MURANG’A THIS 20TH DAY OF APRIL, 2026. M. N. GICHERU JUDGE Delivered online in the presence of ;Court Assistant – Anthony. Appellants’ Counsel – Mr Ashioya. Respondent’s Counsel – Miss Njoroge. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2084/eng@2026-04-20 3

page 3 of 3