Akalale v Munyes (Environment and Land Appeal E001 of 2026) [2026] KEELC 3995 (KLR)

5. The respondent deposes that he undertakes not to transfer the suit land to third parties, pending hearing and determination of the appeal. The respondent deposes that it is not enough for the applicant to allege substantial loss without specific details and particulars of the alleged loss or damage; the court should balance the competing rights or interests of both parties, more so when the applicant is illegally occupying property already decreed to him and continues to run a business and derive income from illegally occupied land. 6. The respondent deposes that the appellant is his auntie, who, instead of taking care of them, has chosen to benefit from them through the exploitation of land that was initially meant to help him and his siblings. 7. Further, the respondent deposes that the suit has been in court since 2022 and that the family had attempted mediation, which the appellant declined to cooperate with or comply with the family's proposal, and instead forged documents to take away their land. 8. The respondent deposes that the alleged business in the suit premises was illegally erected on land that the appellant knew very well was not hers. The respondent deposes that, as orphans who have taken the suit land as their home, they continue to sufier inhumanely and unfairly to date; hence, they pray that the application be dismissed, as they have no intention of transferring the land to third parties, which remains their inheritance and home. 9. The respondent relies on written submissions dated 6/5/2026, stating that the applicant has failed to establish the ingredients of stay as provided in Order 42 of the Civil Procedure Rules. Reliance is placed on Mbogo & Another -vs- Shah [1968] EA 98, Kiplagat Kotut -vs- Rose Jebor Kipngok [2015] eKLR, Kenya Commercial Bank -vs- Sun City Properties Ltd & Others [2012] eKLR, Kenya Shell Ltd -vsBenjamin Karuga Kibiru & Another [1986] KECA 94 [KLR], Mukuna vs Abuoga [1988] KLR 645, Silverstein -vs- Chesoni [2002] 1KLR 867, Nguruman Ltd -vs- Jan Bonde Nielsen & Others [2014] KECA 606 [KLR] and Joseph Gachie t/a Joska Metal Work -vs- Simon Ndeti Muema [2012]eKLR. 10. A party seeking a stay of execution has to file the application without unreasonable or inordinate delay, demonstrate that it will sufier substantial loss, and lastly, ofier security for the due realization of the decree should the appeal not succeed. The law has not set a maximum or minimum delay. It all depends on the circumstances of each case. 11. The powers of the court to grant or refuse an application for a stay of execution are discretionary in nature, as held in Butt -vs- Rent Restriction Tribunal [1982] KLR 417. Pendency of an appeal does not amount to an automatic stay. The three conditions must be met sequentially, distinctly, and separately. The discretion must be exercised on sound principles and based on the evidential material presented by the applicant to demonstrate the substantial loss he is likely to sufier in the absence of stay orders. 12. Execution per se, as held in Wangalwa -vs- Chesoto [2012] eKLR, does not amount to substantial loss. One has to show what loss or damage is to be prevented from happening, which will negate or interfere with the substratum of the appeal to render it futile, useless, or an academic exercise, as held in Stanley Kang'ethe Kinyanjui -vs- Tony Keter & 5 Others [2013] eKLR. 13. In Samvir Trustees Limited -vs- Guardian Bank Limited [2000] eKLR, the court held that in considering whether to grant or deny a stay, it is empowered to see whether there exist special circumstances which can sway the discretion of the court in a particular manner, in balancing or weighing the scales of justice by ensuring that the appeal is not rendered nugatory, while at the same time ensuring that the successful party is not impended from enjoying the fruits of his judgment. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3995/eng@2026-06-29 2

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14. Further in RWW -vs- EKW [2019] eKLR, the court held that the purpose of an application for stay is to preserve the subject matter in dispute so that the rights of the appellant who is exercising an undoubted right of appeal are safeguarded and that the appeal, if successful, is not rendered nugatory. In doing so, the court should also weigh this right against the right of the successful party, who should not be deprived of the fruits of the judgment. 15. A court has to ensure that no party sufiers prejudice that cannot be compensated by an award of costs. Substantial loss, as held in Kenya Shell Ltd -vs- Benjamin Karuga Kibiru & Another [1982-85] 1 KLR 198, is the cornerstone of stay. In Pan African Insurance Company (U) Ltd -vs- International Air Transport Association HCT No. 868 of 2006, the court said that an applicant should go a step further to lay the basis upon which the court can make a finding that the applicant should or would sufier substantial loss as alleged. 16. Mere, vague, or general assertions of substantial loss are not enough. Tangible, cogent, empirical, and scientific data unlock the discretion of the court. Other than alleging that she is in occupation, there is a business and a residential house, the applicant says or alludes to no such evidence. 17. In Kiptum & 23 others -vs- Wamoto & 5 others (Civil Application E034 of 2026) [2026] KECA 1097 (KLR) (12 June 2026) (Ruling), the court held that whether or not an appeal will be rendered nugatory depends on the case’s own facts and peculiar circumstances. Other than alleging substantial loss if eviction ensues, the applicant has not tendered any valuation report, photographs, business records, building plans, or material to show what loss or damage she stands to sufier in the absence of a stay order. 18. The application was also filed on 13/4/2026, which was almost a month after the lower court judgment. The delay, though not unreasonable, is not explained. 19. As to security for the due realization of the decree, the same is mandatory. None has been ofiered. It is not enough to allege that one is willing to comply with the terms that the court may grant or impose. 20. In Arun C. Sharma -vs- Ashana Raikundalia t/a Raikundalia & Co. Advocates [2014] eKLR, the court said that the purpose of security needed under Order 42 of the Civil Procedure Rules is to act as a guarantee of the due performance of such decree that may ultimately be binding on the applicant. 21. In Focin Motorcycle Co. Ltd -vs- Ann Wambui Wangai & Another [2018] eKLR, the court said that a proposal made by an applicant for security is a mark of good faith and that an application for stay is not just meant to deny the respondent the fruits of his judgment. 22. The respondent has explained the prejudice that the applicant has subjected him and his siblings, who are said to be orphans and are entitled to inherit the suit land and also benefit from it. The applicant has not refuted those facts. Since the applicant says she stands to sufier loss or damage, which she has not substantiated, the scales of justice must be balanced, and in this case, the applicant had the burden to show exceptional circumstances why the respondent and his siblings should not take over the land. 23. In the decree sought to be stayed, the applicant has been declared a trespasser on the suit land. A permanent injunction has been issued against her. Her counterclaim in the lower court was dismissed. Costs were ordered to be paid. The applicant has not ofiered any security. 24. It is alleged that the applicant has dispossessed her nephew(s) and nieces, among them the respondent, of land belonging to their late father and her brother, Isaac Ekai, who was the initial allottee of the land on 19/10/2000. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3995/eng@2026-06-29 3

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25. It is the respondent's case that the applicant allegedly replaced the late brother's name in the register under unclear circumstances with her name, without succession proceedings. The trial court termed the applicant’s acts as amounting to intermeddling with the deceased’s estate. 26. Looking at the totality of the foregoing, the court finds the application lacking merit. It is dismissed with costs. The deputy registrar is directed to call for the lower court file for mention in a month. 27. Orders accordingly. RULING DATED, SIGNED AND DELIVERED, VIA MICROSOFT TEAMS/OPEN COURT AT KITALE ON THIS 29TH DAY OF JUNE 2026. HON. C.K. NZILI JUDGE, ELC KITALE. In the presence of: Court Assistant - Dennis Miss Kariuki for the Respondent present Onyango for the applicant absent. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3995/eng@2026-06-29 4

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