Bachakha & another v Egokhe & another (Environment and Land Case 14 of 2016) [2026] KEELC 4454 (KLR)

Order 42 Rule 6 of the Civil Procedure Rules, Section 3(2) of the High Court Practice and Procedure Rules. They seek the following orders: 1. Spent 2. Spent 3. That a stay of sale be granted pending the hearing of Kisumu Court Of Appeal Case No 200 of 2023. 4. That costs of the application be provided for. 4. The Motion is premised on the grounds set out therein and is supported by the afidavit of Patrick Sikuku Egokhe the 2nd Defendant. 5. The gist of the Motion is that the Plaintifis being aggrieved by the judgment delivered on 25th May 2023 have moved to the Court of Appeal and filed appeal NO 200 of 2023. That the appeal has high chances of a success and meanwhile, the Plaintifis have taxed their costs at Kshs.127,690 which they are threatening to execute. It is fair and just that the execution be stayed pending the appeal and the Plaintifis will not be prejudiced by those orders. 6. The following documents are annexed to the Motion: 1. Memorandum of appeal filed in Court of Appeal case NO 200 of 2023. 2. Proclamation of attachment by Remma Auctioneers. 3. Warrant of attachment 7. The Motion is opposed and Pascal Wandera the 2nd Plaintifi filed a replying afidavit dated 30th September 2025 in which he has deposed, inter alia, that the Motion does not meet the mandatory conditions for the grant of an order of stay of execution pending appeal. Further, that the annexed memorandum of appeal does not meet the provisions of the Court of Appeal Rules and therefore there is no proper appeal pending in that Court. That the 1st Plaintifi is aged 94 years and any delay in execution will not serve the interests of justice in his life time. 8. The Court directed that the Motion be canvassed by way of written submissions. The same were filed by MR JUMBA instructed by the firm of Erick Jumba & Company Advocates For The Defendants And By Mr Onsongo Instructed By The Firm Of Obwoge Onsongo & Company Advocates for the Plaintifi. 9. I have considered the Motion, the rival afidavits and the submission by counsel. 10. I must start by observing that when the Motion was placed before me on 23rd September 2025 filed under certificate of urgency, I did not certify it as urgent nor issue any exparte orders staying any execution. Therefore, I would like to believe that execution must have proceeded and was finalized. Therefore, the 94-year-old 1st Plaintifi should not, hopefully, be still waiting for the execution process. 11. Having said so, Order 42 Rule 6(2) of the Civil Procedure Rules provides that (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.” Emphasis mine. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4454/eng@2026-07-16 2

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In the case of Vishram Ravji Halai -v- Thornton & Turpin 1990 KLR, the Court of Appeal stated that whereas it’s jurisdiction to grant an order of stay of execution pending appeal is unfettered, the jurisdiction of this Court is fettered by three conditions namely; establishment of suficient cause, proof that substantial loss will ensue to the Applicant if the order is not granted, ofier of security by the Applicant who must also move the Court without unreasonable delay. Since the enactment of Section 1A (2) of the Civil Procedure Act, a Court should also be guided by the overriding objectives which include the just determination of proceedings as well as the eficient and efiective disposal of cases in a cost-efiective manner. It is also ow well settled that substantial loss is the “cornerstone” of an application such as this one – Kenya Shell Ltd -v- Kibiru & Another 1980 KLR 410. 12. From a perusal of the Motion and the supporting afidavit, there is no mention of what substantial loss the defendants will sufier if the order of stay of execution pending appeal is declined. The Defendants are content with claiming that an appeal has been filed which they allege has high changes of succeeding. The appeal is from a judgment of a judge with equal jurisdiction and this Court cannot purport to gauge the success or otherwise of an appeal from a Court of concurrent jurisdiction. The success or otherwise of an appeal can only be an issue for consideration when this Court is considering such an application arising from an intended appeal from a judgment of a subordinate Court. Therefore, without mention of what “substantial loss”, if any, which the Defendants will sufier and which is the “cornerstone” of such an application, this Motion was always going to collapse from it’s inception. 13. Finally, this Motion was required to be filed “without unreasonable delay” and the Defendants ought to have made an ofier of security or expressed their willingness to abide by any conditions which this Court may impose as a term for the grant of stay orders. The judgment sought to be stayed was delivered on 25th May 2023 and this Motion was filed on 8th October 2025 some 2 years and 5 months later. That delay is obviously unreasonable and has not even been explained satisfactorily or otherwise. It is that explanation which enables the Court to decide whether or not to exercise it’s discretion in allowing such a Motion. Without it, this Court is entitled to conclude, which I hereby do, that this Motion has not been made in good faith. 14. Similarly, it is not lost to this Court that the Defendants only moved to file the Motion when the Plaintifis had already taxed their Bill of Costs on 22nd July 2025 and as I have already stated above, without making any ofier of security. Therefore, the Defendants were only jolted into action when the execution process commenced. As was held in the case of Wylcifie Sikuku Walosaka -v- Philip Kaita Wekesa 2020 eKLR, the ofier of security; “ … must of course come from the Applicant himself as a sign of good faith to demonstrate that the application for stay of execution pending appeal is being pursued in the interest of justice and not merely as a decoy to obstruct and delay the Respondent’s right to enjoy the fruits of his judgment.” Taking all that into account, I have no hesitation in making a finding that this Motion is entirely without merit. It is for dismissal. 15. Accordingly, I issue the following dispositive orders with respect to the Notice of Motion dated 8th September 2025: 1) The Motion is dismissed. 2) Costs to the Plaintifis. RULING DATED, SIGNED AND DELIVERED BY WAY OF ELECTRONIC MAIL ON THIS 16TH DAY OF JULY 2026 WITH NOTICE TO THE PARTIES. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4454/eng@2026-07-16 3

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BOAZ N. OLAO JUDGE 16TH JULY 2026 https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4454/eng@2026-07-16 4

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