Omari (Suing as the Legal Administratix of the Estate of Peter Omari Makworo Deceased) v Wandwi & 2 others (Environment and Land Case E006 of 2022) [2026] KEELC 2753 (KLR)

3. The application is supported by the grounds set out on the face of the application as well as the afidavit in support of the application sworn by John Marwa Wandwi. The applicant’s case is that this court delivered its judgment on this suit on the 21/07/2025 and allowed the plaintifi’s suit. The applicant prayed for 90 days stay of execution. 4. The applicant averred that he has since filed an appeal, being Kisumu Court of Appeal Civilappeal No. E230 of 2025, which was lodged before the court of appeal on 3rd October 2025. 5. The applicant further maintained that, after the delivery the above stated judgment, which was done in Nairobi, his counsel strove to confirm on whether the physical file had been availed to enable him extract a decree, obtain proceedings, lodge an appeal and file an application for stay. He added that he only confirmed the availability of the physical file on the 01/10/2025 when his counsel worked on the tentative appeal which was filed on the 03/10/2025. 6. The applicant maintained that he could not file an application for stay before filing the tentative appeal. It was also his averment that the application was filled without unreasonable delay and added that his appeal would be rendered nugatory if the orders sought are declined and respondent proceeds to execute the decree. 7. Lastly, the applicant maintained that the court has powers to grant the orders sought and argued that the interests of justice tilt towards granting the orders sought in his application. 8. The court has considered the supporting afidavit annexed to the application and sees no point in replicating its contents which are similar to those contained in the application. 9. The court, however, notes that the applicant annexed the following annexures to the said afidavit: a copy of the decree dated 25th July 2025; a notice of appeal dated 30th July 2025 and lodged at the court of appeal on 4th august 2025; a copy of the memorandum of appeal dated 30th September 2025 and a receipt for payment of court fees for the appeal case no. E230 of 2025 Response to the Application 10. The respondent filed a Replying Afidavit dated 21st October 2025. She deponed that the has been issued with letters of administration ad litem and annexed a copy of the said grant dated 18th day of March 2022. 11. The respondent also deponed that the court determined that the suit property was fraudulently registered in the name of the applicant. She stated that issuing the orders sought by the applicant would mean that this court will be engaging in criminal activity since it has since been established that the land in question was fraudulently registered in the name of the applicant. 12. The respondent also deponed that the applicant has not satisfied the conditions for grant of stay of execution provided in Order 42 Rule 6 of the Civil Procedure Rules 2010. She argued that the appeal that the applicant purports to have filed does not exist and that the applicant’s prayer is frivolous and unlawful. 13. In addition to the aforestated, the respondent deponed that that the applicant has not disclosed what prejudice he would sufier should the stay orders not be granted by this court. 14. The respondent concluded by deponing that the application does not disclose any cause of action, is without legal direction and that the same amounts to abuse of court process. As such, she prayed that the application be dismissed with costs. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2753/eng@2026-04-30 2

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Submissions 15. The application was canvassed vide written submissions. The applicant filed his submissions dated 23rd October 2025. He identified two issues for determination being, whether the applicant has met the threshold for grant of stay orders pending appeal; and Whether the applicant is entitled to the costs of the appeal. 16. On whether the applicant has met the threshold for grant of stay of execution pending appeal, the applicant submitted that he has the conditions set out in order 42 rule 6 of the civil procedure rules. He submitted that he will sufier irreparable damage and substantial loss should the respondent proceed and execute the decree of the court since his appeal will be rendered nugatory. He maintained that he it will take a long time and immense costs to have the titles of the disputed properties revert back to him should the order of the court be implemented. 17. On whether the instant application was filed timeously the applicant submitted that he had sought a 90-day stay of execution which was granted by the court. He added that this application was brought immediately after the expiry of the 90-day period. As such, the applicant argued that the application was brought without unreasonable delay. 18. The applicant submitted that he is willing to deposit security and relied on Patel & another v Njeru (Civil Application E073 of 2024) [2025] KECA 186 (KLR) (6 February 2025) (Ruling) to highlight the conditions that an applicant in is position must meet. 19. On whether the applicant is entitled to the costs of the application, he submitted that costs are awarded at the discretion of the court pursuant to section 27 of the civil procedure Act. He also submitted that costs follow event and urged the court to find that he should be awarded costs of the application, having demonstrated that the application has merit. 20. The respondent filed his submissions dated 23rd October 2025. He submitted that the applicant indicated that the intends to file tentative appeal and argued that a tentative appeal does not exist in law. She relied on Hussein Alo M Khaki & 2 Others Versus Saidi Juma & Another to outline the conditions that the applicant must meet before grant of stay of execution and emphasized that the power to grant stay of execution is discretionary. 21. The respondent further relied on Daniel Macharia Thuo Versus Reuben Ndungu Kimani & 2 others, appeal no E014 of 2024 (Thika) to submit that a court ought to determine whether there are any special circumstances that may sway its exercise of discretion. She argued that the court has already established fraudulent dealing in relation to the registration of the suit properties in the name of the applicant and maintained that she is entitled to enjoy the fruits of her litigation. 22. The respondent also submitted that the applicant has not demonstrated that he will sufier substantial loss should be orders he seeks not be granted. She relied on Elizabeth Kango Versus Eunice Mukui Thuli, Machakos civil appeal no 219 of 2023 to submit that substantial loss does represent a particular mathematical formula. Rather, the same is qualitative in nature and represents loss with real worth, whether big or small. She contended that the applicant has already been found to be a fraudster by the and cannot purport to sufier substantial loss in the circumstances. On the contrary, the respondent submitted that she stands to sufier substantial loss should the orders sought by the applicant be granted. Issues, Analysis and Determination 23. The issue for determination in the instant application is whether the applicant should be granted stay of execution orders pending appeal. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2753/eng@2026-04-30 3

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24. The conditions that must be met by an applicant seeking stay of execution orders pending appeal have been provided In Order 42 Rule 6 of the civil procedure rules and reiterated in various precedents. Order 42 rule 6 (1) of the civil procedure rules provides that: 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 such person aggrieved by such an order of stay made by the court whose decision the appeal is preferred may apply to the appellate court to have such order set aside (Emphasis added). 25. Further, Order 42 Rule 6 (2) provides for the conditions that the court ought to factor when dealing with an application for stay of execution pending appeal, thus: No order for stay of execution shall be made under sub-rule (1) unless – a. the court is satisfied that substantial loss may result to the applicant unless the order is made and the application has been made without a reasonable delay; and b. such security as the court orders for the due performance of such decree of order may ultimately be binding on him has been given by the applicant (emphasis added). 26. The court has considered the application in its totality, the response thereto as well as the submissions filed by the parties. The applicant prays for grant of stay of execution orders against the execution of the decree of this court dated 21st July 2025. He argued that the had been granted stay of execution for 90 days and made the instant application immediately after the lapse of the said 90 days. He also stated that the application was delayed for a few days because his counsel spent some time checking on the availability of the court file for purposes of extracting the decree. 27. The applicant equally argued that he will sufier substantial loss should the titles registered in his name be cancelled and the same be registered in the name of the respondent. 28. Although the respondent did not allege that there was delay in filing the appeal, she averred that the applicant did not demonstrate the substantial loss he would sufier should the court not grant him the stay orders he seeks in the instant application. She also contended that the application is an abuse of court process which the court should not countenance, considering that this court has already established that the titles held by the applicant were fraudulently registered. The respondent urged the court to consider her entitlement to the enjoyment of the fruits of her litigation against the finding that the titles in question were fraudulently acquired hence absence of substantial loss on the part of the applicant. 29. On whether the applicant has demonstrated that he will sufier substantial loss should the orders sought not be granted, this court has considered the meaning of substantial loss as provided in precedent. In https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2753/eng@2026-04-30 4

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Century Trading Limited v Kenya Shell Limited (NRB-MILIMANI) HCMCA no. 1561 of 2007, the court noted that: ‘‘The word ‘substantial’ cannot mean ordinary loss to which every judgment debtor is necessarily subjected to when he loses his case and is deprived his property as a consequence. That is an element which must occur in every case since the code expressly purohits stay of execution as an ordinary rule’’. 30. Equally, the Court of Appeal in Kenya Shell Ltd v Kibiru & Another [1986] KLR 410 [1986] KECA 94 (KLR)“Substantial loss is what has to be prevented by preserving the status quo because such loss would render the appeal nugatory.” 31. In the instant application, the applicant argues that cancellation of the titles in question and their subsequent registration in the name of the applicant would render the appeal nugatory. The court has considered the circumstances of the case and finds that the interests justice tilt towards making a finding that the applicant would sufier substantial loss if the orders sough is not granted not safeguarded by new registers. 32. In making the above finding, the court is persuaded by the high court decision in John Gachanja Mundia vs. Francis Muriira Alias Francis Muthika & Another [2016] eKLR that: “ There is doubt the Applicant has shown that substantial loss would occur unless stay is granted. However, I will be guided by a greater sense of justice. Courts of law have said that, with the entry of the overriding principle in our law and the anchorage of substantive justice in the Constitution as a principle of justice, courts should always take the wider sense of justice in interpreting the prescriptions of law designed for grant of relief.” (emphasis added) 33. The court also finds that the application was made without unreasonable delay and the same is not contested. The applicant has also filed a notice of appeal as well as a draft memorandum of appeal. 34. However, in balancing the interests of the parties herein, the court has considered the right of the respondent to the enjoyment the fruits of her judgment against and the right of the applicant to pursue his appeal without the same being rendered nugatory. 35. Accordingly, the applicant is hereby compelled to deposit in court a sum of Ksh. 200,000/= as security for costs and simultaneously file the record of appeal within 45 days from the date of this ruling, failing which the stay of execution order will lapse automatically. 36. Orders accordingly. RULING DATED, SIGNED AND DELIVERED VIRTUALLY VIA THE TEAMS PLATFORM THIS DAY OF 30TH APRIL 2026. HON. DR. IUR NYAGAKA JUDGE From 1:07, in the presence, Ms. E. Apondi Advocate for the 1st Defendant/Applicant Mr. Ochwangi Advocate for the Plaintifi/Respondent. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2753/eng@2026-04-30 5

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