Jane Mukeya Kiiabi v Stephen Ochieng Mukhuna & Anthony Mungoma Mukhwana

back in 1981. That the respondent twisted facts by alleging that he was a non-rent paying tenant and was therefore a trespasser, which argument the court accepted and ordered her eviction. That her appeal has high chances of success and that she stands to suffer irreparable loss and damage if evicted from a home she has lived for 45 years. 3. The application was opposed. The respondent filed a replying affidavit opposing the application. He stated that the judgment delivered by the lower court is valid and capable of execution and that the respondent should be allowed to enjoy the fruits of his judgment. That the application has not met the threshold for grant of stay pending appeal. Further, that the applicant has not demonstrated substantial loss and that no substantial loss can arise from staying on property of another person where the applicant has no claim on the property. That no security has been offered. That the appeal has no chance of success and that the balance of convenience tilts in favour of the respondent. Analysis and determination. 2

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4. The court has carefully considered the application and the replying affidavit. The sole issue for the court’s determination is whether the applicant has met the threshold for grant of orders of stay of execution pending appeal. 5. Order 42 Rule 6 of the Civil Procedure Rules provides for the jurisdiction of the court to grant orders of stay of execution pending appeal as follows; Stay in case of appeal [Order 42, rule 6] (1 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 sufficient 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 person aggrieved by an order of stay made by the court from whose decision the appeal is preferred may apply to the appellate court to have such order set aside. 3

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(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. 6. Essentially, imminent execution cannot in itself be a basis for grant of stay of execution pending appeal, as execution is a lawful process that follows grant of an order, judgment or decree by a court. Hence, for an applicant to succeed in seeking stay pending appeal, they ought to demonstrate that they stand substantial loss; that they have sought to suffer stay without unreasonable delay and show willingness to provide security for the due performance of the decree that may issue against them. 4

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7. In the case of James Wangalwa & Another vs. Agnes Naliaka Cheseto [2012] eKLR, expressed itself thus: “No doubt, in law, the fact that the process of execution has been put in motion, or is likely to be put in motion, by itself, does not amount to substantial loss. Even when execution has been levied and completed, that is to say, the attached properties have been sold, as is the case here, does not in itself amount to substantial loss under Order 42 Rule 6 of the CPR. This is so because execution is a lawful process. The applicant must establish other factors which show that the execution will create a state of affairs that will irreparably affect or negate the very essential core of the applicant as the successful party in the appeal … the issue of substantial loss is the cornerstone of both jurisdictions. Substantial loss is what has to be prevented by preserving the status quo Because such loss would render the appeal nugatory.” 8. In Tropical Commodities Suppliers Ltd & Others vs. International Credit Bank Ltd (in liquidation) [2004] 2 EA 331 the court discussed the element of substantial loss as follows; 5

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“Substantial loss does not represent any particular mathematical formula. Rather, it is a qualitative concept. It refers to any loss, great or small, that is of real worth or value as distinguished from a loss without value or a loss that is merely nominal.” 9. In the instant matter, the applicant stated that she has been in occupation of the suit property for 45 years and that should she be evicted, she will be out of the land purchased by her husband. I have looked at the judgment. The applicant abandoned her claim of adverse possession which was her alleged basis of occupation. The land is registered in the respondent’s names. Therefore, the applicant has not made any claim over the suit property hence her alleged continued occupation has no bearing on this matter. For that reason, the applicant has not demonstrated an arguable appeal with a chance of success and the alleged substantial loss is the apprehension of eviction, which was ordered by the trial court. Hence no specific substantial loss has been demonstrated. 6

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10. In the premises, I find no merit in the application dated 31st October 2025 which I dismiss with costs. 11. It is so ordered. DATED, SIGNED AND DELIVERED AT KAKAMEGA IN OPEN MICROSOFT COURT/VIRTUALLY TEAMS VIDEO THROUGH CONFERENCING PLATFORM THIS 23RD DAY OF SEPTEMBER, 2026 A. NYUKURI JUDGE In the presence of; Mr. Munyendo for the appellant Mr. Wanyangu for the respondent Court Assistant: Delphine 7

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